QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLROYDE
| BRIAN POWNEY
|- and -
|DISTRICT COURT OF LJUBLJANA, SLOVENIA
Catherine Brown (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 21st July, 2015
Crown Copyright ©
Mr Justice Holroyde:
"EUROPEAN ARREST WARRANT
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
The warrant then gives Mr Powney's full name and date of birth. It gives his address as a house in Wolverhampton which I understand to be his parents' home. It identifies the order for Mr Powney's detention which was issued by the Respondent on 17th October 2014. It indicates the maximum sentence (5 years' imprisonment) for the offence alleged. In Box C2 it states:
"2. Length of the custodial sentence or detention order imposed/Remaining sentence to be served:
The procedure is in the stage of judicial investigation and the verdict has not yet been delivered."
The warrant then goes on, in Box E, to give detailed particulars of the fraud alleged, which it describes as "one continued offence" and identifies as coming within the broad category of "swindling". This factual summary begins with the words:
"From the Decision to open procedure it is evident that the accused … "
Finally, the warrant identifies District Investigating Judge Suzana Putrih as the representative of the Respondent court.
"12A Absence of prosecution decision
(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—
(a) it appears to the appropriate judge that there are reasonable grounds for believing that—
(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii) the person's absence from the category 1 territory is not the sole reason for that failure,
(b) those representing the category 1 territory do not prove that—
(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.
(2) In this section "to charge" and "to try", in relation to a person and an extradition offence, mean—
(a) to charge the person with the offence in the category 1 territory, and
(b) to try the person for the offence in the category 1 territory."
"21A Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.
(8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."
"26 There is a trans-national interest in bringing those accused of serious crime to justice, as Lord Steyn noted in Re Ismail  1 AC 320 at 327. He considered that extradition treaties and extradition statutes should therefore be accorded "a broad and generous construction so far as the texts permit it in order to facilitate extradition". That point was noted by Lord Hope of Craighead in Armas at , which concerned the construction of the EA itself. Lord Hope also pointed out that individual liberty was also at stake, so that "generosity must be balanced against the rights of the persons who are sought to be removed under these procedures". He noted that the task of construction was not easy because the wording of Part 1 of the EA did not match that of the FD 2002. But, he said:
"The task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against the unlawful infringement of the right to liberty".
The other four law lords agreed with Lord Hope's speech.
27 It seems to us that these are factors to be borne in mind in construing section 12A. It was clearly inserted in Part 1 with the aim of ensuring that those extradited under "accusation" EAWs should not be subject thereafter to long periods in detention whilst investigations were carried out in the issuing state. At the same time, we must not approach the construction of the phrases "decision to charge" and "decision to try" in section 12A by reference solely to the domestic law and practice of criminal procedures in England and Wales or even the UK as a whole. Instead we must do so in a "cosmopolitan" way, just as Lord Steyn said the word "accused" in section 1(1) of the Extradition Act 1989 must be so construed: see Re Ismail  1 AC 320 at 322. That was also the approach of this court in Assange: see .
28 The application of section 12A in practice is not easy to work out because it involves two distinct stages. In the first stage, which involves both section 12A(1)(a)(i) and (ii), the "appropriate judge" is concerned with whether there are reasonable grounds for believing that at least one of two decisions have not been taken, ie. the decision to charge or the decision to try the requested person, and, then, furthermore, if one of those two decision have not been made, that a state of affairs (the absence of the requested person from the category 1 territory) is not the sole reason for the failure to make one or other or both of those two decisions. Both those negatives have to be established (to the requisite level of "proof") by the requested person. The appropriate judge will only have to consider the issue of whether it appears that there are reasonable grounds for believing that the sole reason for a "failure" to make one or other or both of the two decisions (to charge and try) is not the requested person's absence from the category one territory if it "appears" to him that there are reasonable grounds for believing that at least one of those two decisions has not been made.
29 The appropriate judge will only embark on the second stage, in section 12A(1)(b)(i) and (ii), if he is satisfied that there are reasonable grounds for believing both that no decisions to charge and /or to try have been made and that the person's absence from the category 1 territory is not the sole reason for those decisions not being taken. Again the statutory wording puts the matter in a negative way. However, at this second stage, it is for "those representing the category 1 territory" to "prove", ie prove to the criminal standard (see section 206(2) and 206(3)(b) of the EA ), that it has made a decision to charge and has made a decision to try the requested person. If those two matters are proved, that is the end of the section 12A challenge. However, if those representing the category 1 territory cannot prove, or accept, that either or both of the decisions have not been taken, then, in the alternative, the category 1 territory can prove (again, to the criminal standard) that the sole reason for whichever of those decisions has not been taken is the requested person's absence from the category 1 territory. If those representing the category 1 territory do not prove either of the matters identified in section 12A(1)(b)(i) and (ii) to the criminal standard, then the requested person's extradition to that territory for the extradition offence will be barred.
30 At the first stage, it seems to us that the default position will be that the two decisions have been taken. It is only if the requested person raises before the appropriate judge the challenge that no prosecution decision to charge or try has been made, that the appropriate judge (in England and Wales the DJ) has to decide the point. The phrase "it appears to the appropriate judge" must mean that he is satisfied, on the material before him, that there are "reasonable grounds for believing that" one or both of the two decisions have not been made. The phrase "reasonable grounds for believing" means that, on the objective view of the appropriate judge, there are "reasonable grounds for believing" that one or both of the two decisions have not been made. "Reasonable grounds for believing" involves something less than proof on a balance of probabilities, but more than simple assertion, or a fanciful view or "feeling".
31 On what evidence is the DJ to come to a decision that "it appears" to him that there are "reasonable grounds for believing" that at least one of the two decisions has or has not been made by the competent authorities? The exercise will be conducted on two bases. First, it may be clear from the EAW itself, read as a whole, that the appropriate authorities have taken or have not taken the two decisions. If the matter is clear from the terms of the EAW as a whole that the decisions have been taken, then the DJ should look no further in relation to that point. That is because the DJ is entitled to rely on the statements made in an EAW by a fellow judicial authority. Although section 12A is not based on either FD, it seems to us that any statement of the relevant judicial authority on this issue must be treated with a high degree of trust, because the whole basis of the EAW mechanism is "based on a high level of confidence between Member States": see paragraph (10) of the preamble to FD 2002.
32 Secondly, however, if a requested person makes a challenge under section 12A and it is unclear from the EAW itself whether decisions have been taken to charge and try, the DJ must be entitled to consider extraneous evidence. It is up to the requested person to advance sufficiently cogent evidence to raise a case to the standard indicated above. However, we think that extraneous evidence from a requested person should not be permitted to throw doubt on a clear statement in the EAW that the two decisions have, in fact, been made. Furthermore, we suggest that the production of elaborate "expert" evidence from lawyers or others on what, under the relevant domestic law, might constitute a "decision to charge" or a "decision to try" is not to be encouraged, particularly at the "reasonable grounds for believing" stage, or else hearings on this issue will become long, complicated and very costly. It may be necessary in rare cases, but it should not be regarded as the normal practice. We think that this approach is in line with that recommended in Assange at , although we appreciate that the remarks in Assange concerned section 2 of the EA , not the new section 12A . We accept the proposition advanced by the Judicial Authority in Mr Kandola's case that at the first stage (ie the "reasonable grounds" stage), it is neither appropriate nor necessary for the DJ to make or direct enquiries of the Judicial Authority as to whether decisions to charge or try the requested person have been made. That is because it is for the requested person to satisfy the DJ that there are "reasonable grounds for believing" that at least one of the two decisions has not been made. Likewise, it is not appropriate or necessary for the DJ at this "reasonable grounds for believing" stage to cause any inquiry to be made of the Judicial Authority as to the reason for the absence of either such decision. That is because, at this first stage, it is also for the requested person to show that there are reasonable grounds for believing that the failure to take whichever decision is missing is not solely due to the requested person's absence from the category 1 territory.
33 How is the DJ to tackle the question, at the "reasonable grounds for believing" stage, of whether the sole reason for the lack of decisions to charge and/or try is the absence of the requested person from the category one territory? Again, it must be for the requested person at this stage to provide sufficient evidence to raise a case that his absence from the category one territory is not the sole reason for the lack of decisions to charge and try him. It is likely that this could only be done by some sort of extraneous evidence from the requested person. We think that the evidence need not be elaborate, but mere assertion will be insufficient to raise a case that there are "reasonable grounds for believing" that the sole reason for the lack of decisions is not the absence of the requested person from the category one territory concerned.
34 If the requested person satisfies the DJ as required by both section 12A(1)(a)(i) (either as to a decision to charge or try) and (ii), so that the burden then falls on those representing the category 1 territory to prove (to the criminal standard) that the two decisions have been made, or, alternatively, that the sole reason for them not being made is the requested person's absence from the category one territory, how are those matters to be proved? In the vast majority of cases a short, clear, statement from the relevant Judicial Authority answering the following simple questions from the CPS acting on its behalf in the extradition proceedings should be determinative: "(i) has a decision been taken in this case (a) to charge the requested person and (b) to try him, if not, (ii) is the sole reason for the lack of each of the decisions that have not been taken the fact that the requested person is absent from the category 1 territory of which you are a/the Judicial Authority?" The requested person may be able to challenge such statements, but we would hope that disputes on the issues raised by section 12A(1)(b) will not result in elaborate hearings on factual or expert evidence, or else that would defeat the whole object of the EAW system of simple and quick procedures to surrender persons who are wanted for the purposes of criminal prosecution to category 1 territories. Elaborate evidence would also place an intolerable burden on the DJs who have to deal with extradition and who already have a very heavy work load of cases and hearings. "
"(1) The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal. (2) In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act. (3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified. (4) The court must construe the words in section 2(3)(a)(b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure. (5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little) scope for argument on the purpose of the warrant. (6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself. (7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
"Adopting a cosmopolitan approach, I interpret these words as meaning that the case is at a stage where it is ready for trial."
He then referred to the words in Box E (quoted above) which introduce the factual summary of the allegation, and said –
"I interpret these words as evidence that the criminal proceedings against Mr Powney have commenced."
"The details of the alleged conduct are set out fully in the EAW and give no indication at all that further investigation is necessary or envisaged. Considering the wording of the warrant as a whole I am satisfied that the warrant is clearly for the purpose of the requested person being prosecuted for the offence set out."
"I find that Mr Powney has not proved to the required standard that no decision has been made to charge or try him. In fact it is clear to me that, on reading the warrant as a whole, Slovenia has clearly made decisions to charge and try Mr Powney for the extradition offence. There is therefore no need for me to go on to consider the further steps set out in this section."
"The alleged frauds took place over a period of about 11 months. It seems to have been committed with others. There are "several tens" of victims who have, no doubt, lost hard-earned savings. The amounts defrauded from them total EUR 31,990. This is a large sum of money, though not notably large by the standard of frauds that the criminal courts deal with. The extradition offence is a serious one."
As to subsection (3)(b), the likely penalty, he said:
"In our own jurisdiction the requested person would almost certainly receive a custodial sentence, the length of which would depend on his plea, antecedents and mitigation. The offence carries a 5 year maximum penalty in Slovenia."
As to subsection (3)(c), less coercive measures, he said:
"There is no information that such measures are envisaged by Slovenia. Mr Powney told me he would be prepared to be interviewed by Slovenian authorities in this country."
"Mr Powney's personal circumstances are that he is 56 years old and lives permanently in Tenerife. He came to London to visit his daughter and was then arrested under this EAW. He intends to return to Tenerife at the conclusion of the proceedings against him. I have not been told of any significant issues that would bar extradition under section 21/Article 8 or any other Convention right. Taking all these matters into account, I find that for an offence of this seriousness, extradition would be compatible with Convention rights and would not be disproportionate."
"1. Under the Criminal Procedure Act applicable in the Republic of Slovenia, a court investigation forms part of criminal procedure conducted by the Investigation Judge who is also competent for the issuing of the European Arrest Warrant for the person charged, in this particular case for Brian Powney, in order to successfully complete the criminal procedure. Court investigation has been initiated for the said person but without the preliminary questioning, since the local authorities have been unable to reach him; however, the Investigation Judge cannot complete this stage of the procedure until the person charged is questioned. The presence of the person charged is mandatory also in later stages of the procedure, namely after the lodging of charge.
2. Regarding the person charged, please note that there is no other more appropriate action to be taken, since the said person is avoiding the procedure; we have also received a note from Interpol Manchester in February 2014 saying that the person charged no longer resides at his permanent residence at [Wolverhampton] and that the British security authorities have no knowledge of his current residence. In light of the information received, the Ljubljana District State Prosecutor's Office motioned that detention be ordered for the person charged and European Arrest Warrant be issued."
i) As to section 12A, "the investigation of the case is not yet complete; the requesting judicial authority have not yet decided whether to charge the Appellant or place him on trial. There are no reasonable grounds for believing that the sole reason for the Slovenians' failure to decide whether to charge or try the Appellant is the Appellant's absence from that country."
ii) As to section 21A, "the learned District Judge failed adequately or at all to conduct the proportionality exercise, including proper consideration of the question of less coercive measures."
i) DJ Coleman misinterpreted Box C2: the reference to "the verdict" should be understood to mean "a final decision as to whether or not to charge Mr Powney".
ii) DJ Coleman was wrong to rely on the words of the preamble: the pro forma language of the preamble, which appears in every EAW, cannot assist in understanding the purpose for which the warrant was issued. In this regard, Mr Hawkes relies on paragraph 15 of the judgment in Asztaslos v Hungary  1WLR 252, in which the court held that the failure of the requesting authority to delete inapplicable words from the preamble did not of itself render the EAW invalid.
iii) DJ Coleman wrongly interpreted the introductory words of Box E, which should be understood to refer to an ongoing investigation rather than to a settled decision to charge or to try.
iv) DJ Coleman was wrong to conclude that there was nothing to indicate that any further investigation was necessary or was envisaged. In this regard, Mr Hawkes points out that the EAW states that RCI, based at Northampton, does not exist, whereas such a company can easily be identified via the internet. That, he says, is an indication that the investigation of the alleged crime cannot be complete.
"11. … The German judicial authorities can be taken to understand the fundamental principles underlying the Framework Decision. That decision is intended to facilitate the easy and speedy extradition of individuals from one Member State to another for two and only two purposes: to prosecute them and to require them to serve the unexpired portion of a sentence of imprisonment imposed upon them, hence respectively the shorthand 'accusation and conviction warrants'. … 13. … A glance at this warrant will demonstrate that it is not a conviction warrant. Therefore, what the German authorities are certifying is that it is an accusation warrant. It is a warrant issued to secure the surrender of the Appellant for the purpose of conducting a criminal prosecution against him. 14. Its terms are consistent with that. … 16. Anyone reading this warrant in … a 'cosmopolitan' sense and not with the narrow focus of an English lawyer would immediately appreciate that this is a warrant issued at the start of a civil law criminal process in which the investigating judge or judge of the first instance is commencing the prosecution against the individual."
"…the submissions of both counsel that section 21A(1) creates two separate bars to extradition in an accusation case. It may be that the factors influencing an Article 8 balance under section 21A(1)(a) will overlap with an assessment of proportionality for the purpose of section 21A(1)(b) , but that they require separate consideration is made plain by the terms of section 21A(2) and (3) . Subsections (2) and (3) require a free standing judgment that (subject to the bracketed words in subsection (2), to which I shall return) is formed upon consideration of, and only upon consideration of, the seriousness of the conduct alleged, the likely sentence and alternative methods of securing the requested person's attendance at the court of the Category 1 territory."
"It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligation under Article 5 (3) ECHR , already considered the taking of less coercive measures. I accept the submission … that there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances."
He submits however that in the circumstances of this case Mr Powney has discharged that burden.
"(3) A request under this subsection is a request by the person in respect of whom the warrant is issued—
(a) to be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant."
In any event, says Miss Brown, the possibility of less coercive measures has to be viewed in the context of the likelihood of a custodial sentence in the event of conviction.
Lord Justice Burnett: