England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th September 2015

Mr Justice Holroyde:

1. This is an appeal, by permission of Ouseley J, against the decision of District Judge Coleman ("DJ Coleman") on 11^th May 2015 ordering that the Appellant Brian Powney ("Mr Powney") be extradited to Slovenia to face prosecution on a charge of fraud.
2. Mr Powney was a director of a company with a registered office in Ljubljana, Slovenia. The Slovenian name of the company is translated as "Sunset Promotion, Services and Trade Ltd" ("Sunset"). It appears that Sunset was in some way associated with a much larger organisation, Resorts Condominiums International ("RCI"), which has its registered office in Northampton. The allegation against Mr Powney is that between 10^th July 2010 and 24^th June 2011 he, as director of Sunset, engaged in fraudulent dealings in relation to timeshare holidays. In essence, it is said that he was selling timeshares in properties on the Spanish island of Tenerife when the properties either did not exist or were not available for use as a timeshare. It is alleged that he, through his representatives, dishonestly obtained deposits from customers amounting in total to 31,990 euros. Mr Powney denies these allegations. He accepts that he did for a time work for Sunset, but says that he had no knowledge of any dishonest activity and that, as far as he was concerned, no customer was defrauded.
3. On 17^th October 2014 the Respondent issued a European Arrest Warrant ("EAW"). It was certified by the National Crime Agency on 26^th December 2014, and Mr Powney was arrested on the same date. He made an initial appearance before the Westminster Magistrates' Court on 27^th December 2014, and was thereafter remanded on conditional bail until the full hearing before DJ Coleman. That hearing began on 30^th March 2015, when Mr Powney gave evidence, and was then adjourned until 11^th May 2015.
4. It is necessary to set out some of the terms of the EAW. Its preamble, sealed and signed by the Investigating Judge on behalf of the Respondent, says:

"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 17^th 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.

5. Part 1 of the Extradition Act 2003 applies to these proceedings. Section 2(3) and (5) of the Act require that an EAW must contain either a statement that the requested person is accused of an offence and his arrest and extradition are sought "for the purpose of being prosecuted for the offence", or a statement that the requested person has been convicted of an offence and his arrest and extradition are sought "for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence". Thus extradition may not be sought for the purpose of questioning a suspect or investigating an alleged offence.
6. Consistently with that limit to the legitimate scope of extradition, section 12A – which came into effect on 21^st July 2014 – provides as follows:

"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,

and

(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."

7. In relation to persons extradited for the purpose of being prosecuted for an alleged offence, it is necessary to have regard to section 21A, which also came into effect on 21^st July 2014:

"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."

8. The construction of section 12A was recently considered by a Divisional Court in Kandola v Germany [2015] EWHC 619 (Admin). It is appropriate to cite a lengthy passage from the judgment of the court given by Aikens LJ:

"26 There is a trans-national interest in bringing those accused of serious crime to justice, as Lord Steyn noted in Re Ismail [1999] 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 [24], 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 [1999] 1 AC 320 at 322. That was also the approach of this court in Assange: see [151].

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 [147], 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. "

9. It is appropriate also to refer to the decision of a Divisional Court in Asztaslos v Szekszard City Court, Hungary [2011] I WLR 252 in which the court was considering section 2 of the 2003 Act. Aikens LJ, giving the judgment of the court, summarised at paragraph 38 the effect of earlier decisions as to how the court should distinguish between a warrant issued for the legitimate purpose of prosecution or for the illegitimate purpose of investigation:

"(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."

10. At the hearing before DJ Coleman, Mr Powney resisted extradition on three grounds. He relied first on the provisions of section 2 of the 2003 Act, and submitted that the EAW was deficient because it did not make clear whether it had been issued for the purpose of prosecution or for the purpose of executing a custodial sentence. DJ Coleman decided that point against Mr Powney, and it is no longer pursued. I therefore need say no more about it. Mr Powney also relied on the provisions of sections 12A and 21A. In relation to section 12A, DJ Coleman clearly had well in mind the two-stage approach referred to in paragraph 28 of Kandola v Germany. On 30^th March 2015 he initially considered whether Mr Powney had shown reasonable grounds under section 12A(1)(a), sufficient to cast the burden onto the Respondent under section 12A(1)(b). He adjourned the hearing until 11^th May on the basis that he would then, if appropriate, allow the Respondent time to make further enquiries. In the event, no such further adjournment was necessary.
11. Under section 12A, Mr Powney submitted that there were reasonable grounds for believing that the Respondent had not made any decision either to charge him or to try him. It was therefore necessary for DJ Coleman to consider the terms of the EAW, which he did both in relation to the section 2 argument and in relation to the section 12A argument. In ruling on the former point, he referred to the preamble to the Warrant. He referred to Box C2, saying –

"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."

12. His overall view was expressed as follows:

"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."

13. In ruling on the section 12A point, DJ Coleman referred to the decision in Kandola v Germany, in particular paragraphs 28-34. He ruled that the burden of proof lay on Mr Powney to show that the Respondent had made no decision to charge or to try him. He concluded as follows:

"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."

14. Having rejected the challenges to extradition under sections 2 and 12A, DJ Coleman went on to consider the provisions of section 21A and Mr Powney's submission that his extradition would be disproportionate. His decision as to subsection (3)(a), the seriousness of the conduct alleged, was as follows:

"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."

15. DJ Coleman concluded this part of his judgment as follows:

"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."

16. DJ Coleman therefore concluded that there was no bar to extradition and no human rights issue preventing extradition. He accordingly ordered that Mr Powney be extradited to Slovenia.
17. Mr Powney sought leave to appeal. The legal representatives of the Respondent requested further information of the kind indicated in paragraph 34 of Kandola v Germany. They asked the Respondent whether a decision had been taken in this case (a) to charge the Requested Person, and (b) to try him. If not, they asked, was 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 Slovenia? They noted Mr Powney's argument that his return to Slovenia to face the matters alleged in the EAW could have been achieved by "less coercive measures" such as the use of Mutual Legal Assistance, the issuing of a summons and/or a European Supervision Order, and asked whether any of those methods was considered before the EAW, was issued. If not, they asked the Respondent to explain why.
18. The Respondent by letter dated 16^th July 2015 provided the following further information in answer to those questions:

"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."

19. Mr Hawkes rightly accepts, on behalf of Mr Powney, that the further information has been duly authenticated, and so may be received in evidence in these proceedings, pursuant to section 202 of the 2003 Act.
20. Mr Hawkes puts forward the following grounds of appeal:

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."

21. Mr Hawkes' principal submissions in support of his first ground may be summarised as follows:

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 [2011] 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.

22. As to the further information provided by the Respondent on 16^th July 2015, Mr Hawkes submits that it shows that preliminary questioning of Mr Powney has not yet taken place. He refers to Mr Powney's proof of evidence, in which Mr Powney denies any dishonest activity, and submits that the result of preliminary questioning should be an acceptance of that account and a consequent decision that Mr Powney should not be charged. Thus, he submits, no decision can yet have been made by the Respondent as to whether Mr Powney is to be charged with the alleged offence; and the further information does not provide any answer at all to the question whether a decision has been taken to try Mr Powney. At the very least, he argues, the terms of the further information are ambiguous, and provide reasonable grounds for believing that neither of the relevant decisions has been made.
23. Miss Brown on behalf of the Respondent resists those submissions. She emphasises the need for the court to adopt a "cosmopolitan approach" and argues that the use of the phrase "judicial investigation" in Box C2 should be understood as a reference to a part of the trial process in Slovenia: an argument which, she says, is supported by the natural meaning of the following phrase "the verdict has not yet been delivered". As to the further information, she emphasises the references in the letter of the 16^th July to the "person charged", and submits that if the matter was still at the stage of investigation it would not be in the hands of a judge: it would still be with the police, or a prosecutor. She argues that the reference to "preliminary questioning" should be understood as a reference to questioning forming a part of the inquisitorial trial process, not as a reference to questioning in the course of investigation. She emphasises that the burden is on Mr Powney to show reasonable grounds for believing that one or both of the relevant decisions has not been made, and relies on the "default position" referred to at paragraph 30 of Kandola v Germany. She submits that there is nothing in the terms of the EAW, and nothing in the terms of the further information, which suggests that there is any ongoing investigation, and therefore invites this court to conclude that DJ Coleman reached a correct decision on this point.
24. Miss Brown goes on to submit, in reliance on Kandola v Germany, that there is in any event a second stage to be considered under section 12A. If Mr Powney were to succeed in discharging the burden of showing that no decision has been made to charge or to try him, she invites the court to adjourn the hearing so that the Respondent can make the further enquiries which DJ Coleman had anticipated may be necessary if his ruling at the first stage had been favourable to Mr Powney.
25. My conclusions as to the application of section 12A are as follows. Given Mr Powney's challenge to extradition on this ground, the default position mentioned in paragraph 30 of Kandola v Germany did not apply. There was no extraneous evidence before DJ Coleman, whose decision at the first stage of the two-stage process was therefore made on the basis of the wording of the EAW. As is clear from paragraph 28 of Kandola v Germany, section 12A(1)(a) requires a requested person to show reasonable grounds for believing both (i) that one of the relevant decisions has not been made, and (ii) that his absence is not the sole reason for that failure. If the requested person fails to show reasonable grounds for belief in relation to (i), he falls at the first hurdle and the DJ does not need to consider whether he would also fail to show reasonable grounds for belief in relation to (ii).
26. In considering the terms of the EAW, a cosmopolitan approach must be adopted, and it is essential to bear in mind that the criminal process in Slovenia is not the same as the process in this country. The words of the preamble are in my view important. I accept that they will not always be conclusive, but I cannot accept Mr Hawkes' submission which was, in effect, that those words can be ignored, or taken to mean something other than what they say. The passage in paragraph 15 of Asztaslos v Hungary, on which Mr Hawkes relies, does not provide authority for the broad submission which he makes. Respect must be shown to the statement of the judicial authority of another member state. It is a statement that the warrant has been issued for one of the two legitimate purposes of extradition, and it is clear from the warrant as a whole that this is an accusation warrant rather than a conviction warrant. In the absence of any compelling reason being shown, there is in my view no justification for treating the words of the preamble as if they were untrue.
27. I derive support for that view from paragraph 31 of Kandola v Germany, cited above, and also from the judgment of Mitting J in Ali v Public Prosecutor of Bavaria, Germany [2014] EWHC 3881 (Admin). The issue in that case arose under s2 of the 2003 Act. The warrant requested that the Appellant "be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order". Rejecting an argument that those terms left open the possibility that the purpose of the warrant might be the investigation and questioning of the Appellant, Mitting J said:

"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."

28. Against the background of the preamble, the terms of the EAW here are consistent with both of the relevant decisions having been made, and DJ Coleman was entitled so to find. I would not go so far as DJ Coleman in saying that the terms of Box C2 point to the case being ready for trial, not least because that phraseology may be better-suited to the adversarial process in this country than to the criminal process in Slovenia. However, even if the case were not "ready for trial", the reference in Box C2 to "judicial investigation" does in my view provide support for DJ Coleman's overall conclusion. It distinguishes judicial investigation, as part of the trial process, from initial investigation by the police or the prosecutor. It is important to note that Box C2 provides an opportunity for the requesting authority to state "Length of the custodial sentence or detention order imposed; Remaining sentence to be served". In that context, it is in my view clear that the words "The procedure is in the stage of judicial investigation and the verdict has not yet been delivered" are a statement that no question of sentence has yet arisen, because the matter is before a judge and no verdict has yet been reached as to whether the accused is guilty or not guilty. I agree with Mr Hawkes that DJ Coleman went further than was appropriate in interpreting the words in Box E as meaning that criminal proceedings have been commenced: to my mind, the introductory words which I have quoted do not greatly assist one way or the other, at any rate without some clarification of the phrase "the Decision to open procedure". However, those words are not inconsistent with the relevant decisions having been made, and in any event, I do not think that any error which DJ Coleman may have made in this regard affects the overall decision to which he was entitled to come.
29. As to the further information, it is unfortunate that the Respondent's answers to the questions are not expressed as clearly as one would have hoped. It is nonetheless clear, from the references to the "court investigation" of "the person charged" that this document does not provide any support for Mr Powney's submissions. The reference to "preliminary questioning" is, clearly, a reference to questioning by the Investigation Judge as part of the court procedure. The document as a whole is in my view wholly inconsistent with the suggestion that the Respondent is as yet undecided as to whether Mr Powney should be prosecuted. On the contrary: it provides clear support for the conclusion that the decisions to charge and to try have been made, albeit that the absence of Mr Powney from Slovenia has presented an impediment to certain steps in the court proceedings.
30. In my judgment, Mr Powney failed to show any reasonable grounds for believing that either of the relevant decisions had not been made. DJ Coleman was accordingly entitled to reach the decision he did. No error of law has been shown in his approach or in his decision. The subsequent provision of the further information does not assist Mr Powney. I therefore reject the first ground of appeal.
31. Although the issue does not arise, because DJ Coleman was entitled to make the decision he did under section 12A(1)(a)(i), I should note that I can see no basis on which Mr Powney could have succeeded in showing reasonable grounds under s12A(1)(a)(ii). The submissions on his behalf did not identify any ground for believing that his absence from Slovenia was not the sole reason for any failure to make one of the relevant decisions. It follows that even if he had surmounted the first hurdle, he would in my view have fallen at the second.
32. I turn to the second ground of appeal, and the issue which arises under section 21A. Mr Hawkes is correct to point out that DJ Coleman was required to give separate consideration to the distinct questions of Mr Powney's Convention rights and the proportionality of extradition: see paragraph 29 of Miraszewski v Poland [2014] EWHC 4261 (Admin), in which Pitchford LJ accepted –

"…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."

33. As to the matters specified in section 21A(3)(a) and (b), Mr Hawkes emphasised that Mr Powney is not accused of violent crime or of conduct showing him to be a danger to the public: at most, he is accused of financial crime, and it may be that the allegation is in truth no more than a civil dispute about lost deposits. In short, he submits, this is not a case in which detention in Slovenia pending trial would be justified. Mr Powney is not a fugitive, and there is no evidence that he was aware, until these proceedings, that he was the subject of any form of criminal investigation in Slovenia.
34. Mr Hawkes' principal submissions, however, were directed to section 21A(3)(c). He says that the Respondent failed to make any meaningful enquiry into Mr Powney's whereabouts before issuing the EAW. He argues that alternative and less coercive measures are available here: in particular, the Respondent could have issued a summons, or arranged an interview of Mr Powney in the UK, either in person or by videolink. Mr Hawkes also refers to the availability, since 3^rd December 2014, of a European Supervisory Order under which Mr Powney could remain in the UK subject to bail conditions enforced by the English courts, and could surrender voluntarily for trial if and when a date was set.
35. Mr Hawkes acknowledges that the court in Miraszewski v Poland [2014] EWHC 4261 (Admin) said (at paragraph 41) –

"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.

36. Mr Hawkes' overall submission is that extradition would be a disproportionate interference with Mr Powney's right to a private and family life, and a disproportionate course to take when less coercive measures are available.
37. In response to these submissions, Miss Brown points out that the offence of which Mr Powney is accused is a serious one, likely to result in a custodial sentence if he is convicted. She submits that there is no evidence that the Respondent had any information as to Mr Powney's current place of residence at the time when the decisions to charge and to try him were made. That being so, she argues, there was no realistic scope for the alternative measures suggested on behalf of Mr Powney to be deployed. Nor, she suggests, is there any reason to think that Mr Powney would cooperate with any such measures: she points out that he has made no request under section 21B(3) of the 2003 Act, which provides -

"(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.

38. There is force in Mr Hawkes' submission that DJ Coleman dealt with this aspect of the case briefly. I do not accept, however, that DJ Coleman gave insufficient consideration to these issues. The reality, in my view, is that the answer to the issue was clear. The alleged offence, involving as it does the defrauding of a number of persons over a period of time, is undoubtedly serious. It would be expected to result in a custodial sentence in the UK, and there is no reason to reject the Respondent's submission that a custodial sentence is likely if Mr Powney is convicted in Slovenia. The further information makes it clear that the Respondent made enquiries in the UK which succeeded only in establishing that Mr Powney was no longer living at the only address of which the Respondent was aware. Although Mr Hawkes suggests that the Respondent should have made enquiries in Tenerife, or in Spain as a whole, that submission in my view attempts to cast a wholly unreasonable burden on the Respondent: the mere fact that Mr Powney, a UK citizen resident in Slovenia at the material time, was purporting to sell timeshares in Spain did not make it necessary for the Respondent to embark upon speculative enquiries in Spain.
39. As was said in Miraszewski v Poland, it is in most cases reasonable to assume that the requesting authority has considered alternative, less coercive measures before deciding to request extradition. There was nothing before DJ Coleman to suggest that it was not reasonable for him to make that assumption in this case. The further information provided by the Respondent since his decision makes it entirely clear that the Respondent does not regard anything less than extradition as appropriate. The burden is on a requested person to identify less coercive measures which are not merely available in principle but are appropriate in the circumstances of the case. Those circumstances include the seriousness of the allegation and the likely penalty in the event of conviction. All of the alternative measures suggested in argument by Mr Hawkes are dependent upon the cooperation of Mr Powney. There is force in Miss Brown's point that Mr Powney has made no formal request under section 21B, and has done little to advance his assertion that he would be willing to submit to an interview in this country: as she says, those are reasons to doubt the efficacy of less coercive measures. More generally, as it seems to me, it would be contrary to the principles set out in Miraszewski v Poland to require that a requesting authority provide in every case a detailed explanation of the decision-making process which preceded the issuing of a EAW. Unless and until a requested person identifies a less coercive measure which would be appropriate in the circumstances of his case, it is to be assumed that the requesting authority has considered the less coercive alternatives and has rejected them for proper and sufficient reasons. With respect to Mr Hawkes' careful submissions, they provided an admirable exegesis of what would be possible in principle, but fell short of identifying a less coercive measure which would have been appropriate in this case.
40. In any event, it must be borne in mind that under section 21A(3)(c) the possibility of less coercive measures is only one factor in the assessment of proportionality. A failure to adopt a less coercive measure, even it had been shown to be appropriate in the circumstances, is not necessarily decisive of that assessment. In the circumstances of this case, DJ Coleman was in my judgment entitled to conclude that extradition would not be disproportionate under section 21A.
41. On the discrete issue of Mr Powney's Convention rights, the answer is in my view similarly clear. The reasons substantially overlap with those which apply to the section 21A issue, and it must be noted that Mr Powney did not put forward any substantial separate point as to his Article 8 rights. As is clear from HH v Deputy Prosecutor of Italian Republic, Genoa [2012] UKSC 25 and, most recently, from Polish Judicial Authorities v Celinski & others [2015] EWHC 1274 (Admin), the public interest in ensuring that extradition arrangements are honoured is very high. DJ Coleman was clearly entitled to reach the conclusion he did.
42. There is no basis on which it could be said that, in reaching his decisions as to proportionality, DJ Coleman misapplied relevant legal principles, or made a finding which no reasonable judge could have made, or took into account an irrelevant fact, or failed to take into account a relevant fact, or reached an overall conclusion that was perverse or irrational. Mr Powney has therefore failed to show any ground on which it could be said that DJ Coleman's decision was wrong, and I reject his second ground of appeal.
43. It follows that, notwithstanding Mr Hawkes' well-presented submissions, I would dismiss this appeal.

Lord Justice Burnett:

44. I agree.