England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		8 June 2016

1. MR JUSTICE HOLROYDE: On 29 January 2016 Senior District Judge Riddle ordered the extradition of the Applicant, Mr Jaworski, to Germany pursuant to an accusation European Arrest Warrant which was issued on 26 November 2015 and certified by the National Crime Agency on 8 December 2015.
2. With the leave of Irwin J, the Applicant appeals on a single ground relating to section 12A of the Extradition Act 2003. I have been greatly assisted by the admirable written and oral submissions of Mr Mason and Miss Farrant, to both of whom I am grateful.
3. The facts can be briefly summarised. I gratefully adopt the succinct words of the District Judge who indicated that in essence the Applicant was:

(1) " … sought as part of a "gang of thieves" who travelled from Poland to Germany to break into cars and take them to Poland to be deconstructed and sold. It is said that it was the responsibility of Mr Jaworski to make sure that the area was not disturbed and later to drive the stolen cars (of which there were 12) to Poland or to drive ahead of the stolen goods on the look out for police controls."

4. In the European Arrest Warrant the nature of the offending is described as "grand gang theft" alleged to have taken place between 2 September 2012 and 10 July 2014.
5. I set out the terms of section 12A of the 2003 Act as annex A to this judgment.
6. Valuable guidance as to the operation of section 12A was given by a Divisional Court in Kandola v Germany [2015] EWHC 619, in particular in paragraphs 28 to 34 of the judgment of the court given by Aikens LJ. I attach those paragraphs as annex B.
7. In summary, the application of section 12A involves two distinct stages. At the first stage, the requested person must establish both of two negatives. First, there must be reasonable grounds for the judge to believe that either a decision to charge the requested person or a decision to try the requested person has not been taken. Secondly, there must be reasonable grounds for the judge to believe that the requested person's absence from the requesting state is not the sole reason why one or both of those two decisions has not been made.
8. If, but only if, the requested person succeeds at that first stage, the burden then shifts to the requesting state to prove to the criminal standard that either both a decision to charge and a decision to try have been made or if one or both of those decisions has not been made, that the requested person's absence from the jurisdiction is the sole reason for the relevant failure.
9. Here it is submitted by Mr Mason on behalf of the Applicant that the learned District Judge misinterpreted the guidance given in Kandola and so fell into error in his application of section 12A to the facts of this case.
10. In view of the focus placed upon it in Mr Mason's submissions, it is appropriate for me to set out in full a lengthy paragraph from the judgment of the District Judge. At page 2 of his judgment he said:

(1) "I start from the default position, namely that the two decisions have been taken. That is reinforced by the warrant itself. The warrant starts with the standard preamble that surrender is requested "for the purposes of conducting a criminal prosecution or executing a custodial sentence..." Further in box E the defendant is referred to as "the accused together with the other prosecuted persons..." He is said to be the main perpetrator. It is correct, as Mr Mason points out, that it is not clear from the terms of the EAW as a whole that the decisions have been taken. He is right, in my view, to say that the court can look at extraneous material, in this case the form A which provides supplementary information in relation to the EAW request. In that form, it says: "please do not arrest the W/P before tomorrow, 2015-12-09, in order not to compromise German investigations!" Mr Mason says this points to the fact that investigations are continuing and the decision to charge and try has not been taken. However, the remarks themselves are far from specific. There is a reasonable inference that the investigations relate to this particular case, but not necessarily this particular defendant and in any event the timing is "tomorrow". When I put together all the information I have, and starting with the default position, reinforced by comments in the warrant and in particular the reference to "other prosecuted persons", and reminding myself of the high degree of trust referred to in paragraph 31, then the defence have not satisfied me that there are reasonable grounds for believing that at least one of the two decisions has not been made."

11. Mr Mason submits that in that passage the learned District Judge misapplied Kandola in at least two respects and that as a result he adopted an incorrect approach, which had the effect that he wrongly elevated or increased the burden upon the Applicant beyond the establishing of reasonable grounds for the relevant belief. He argues that the initial error of interpretation of Kandola tainted what followed and therefore cannot be treated as an immaterial mistake by the District Judge which did not affect the outcome of the case.
12. First, Mr Mason submits that in paragraph 30 of Kandola the reference to a default position is a reference to a default position which obtains only unless and until the requested person raises a challenge under section 12A. I agree that that is how the phrase is used in paragraph 30. That paragraph simply makes the point that in the absence of any section 12A challenge, the court will proceed on the basis that the relevant decisions have been made and that no further inquiry is needed.
13. But although I accept that submission from Mr Mason, I do not think it assists the Applicant. When a challenge is raised under section 12A, Kandola makes clear that the initial burden at the first stage lies on the requested person. If he fails to establish reasonable grounds for the relevant beliefs, the court is not left in a vacuum. In the absence of a successful challenge, the court can and should proceed on the basis that the relevant decisions have been taken. I do not think it would be an abuse of language to refer to that as "a default position", though that is doubtless an unhelpful phrase to adopt in the context of a discussion about Kandola.
14. Secondly, Mr Mason points to the DJ's reference to "the high degree of trust referred to in paragraph 31" of Kandola. He submits that in that paragraph the court in Kandola used the phrase simply to explain why, when the EAW itself is clear, there is no need for a DJ to look further. Again, I accept Mr Mason's submission in that regard, but again I do not think that it helps the Applicant. It does not seem to me that the District Judge in fact gave unmerited or inappropriate trust to any aspect of the EAW.
15. Thirdly, Mr Mason submits that the DJ gave undue weight to the standard preamble of the EAW. Precisely because it is a standard preamble, he argues, only limited weight can or should be given to it. In making this submission, Mr Mason sought to gloss some of what I said at paragraph 26 of my judgment in Powney v Slovenia [2015] EWHC 2543 (Admin). I am grateful for his submissions, but I see no reason to alter or amend what I said in that case.
16. Fourthly, Mr Mason points to a number of the phrases in the EAW which the District Judge in his judgment did rely upon and which Mr Mason submits he was wrong to rely upon. I will deal with each of these briefly.
17. First, Mr Mason points to the phrase "the accused together with the other prosecuted persons". In my view, the natural meaning of that phrase is that it refers to a man who is himself to be prosecuted, not to a mere suspect who might or might not be shown to be implicated in the alleged crime. The argument put forward attractively by Mr Mason, that an alternative interpretation of the words is possible as a matter of semantics, does not, in my view, amount to a reasonable ground for thinking that a decision to prosecute the Applicant had not been made.
18. Secondly, Mr Mason refers to the DJ's reference to the allegation in the EAW that the Applicant's role was that of "main perpetrator". He submits that the word perpetrator is equivocal. Not, in my view, in this context. To my mind, the reference to him as a main perpetrator favours the view that the decision to prosecute him has been made.
19. Thirdly, Mr Mason points to the note in form A which asks for the arrest of the Applicant not to take place immediately "in order not to compromise German investigations". In my view, the reference to "German investigations" does not give any ground for thinking that the decision to prosecute this Applicant had not yet been taken. It is apparent from the warrant that he is accused of participation in gang crime with others. It is perfectly normal in such circumstances for a prosecuting authority or police force to apprehend that if one person is arrested, news of that arrest may quickly come to the attention of others who are implicated in the crime, which may possibly lead to loss of evidence or some obstacle to further investigations of those other persons. Thus used in that context, the phrase seems to me to give no support to the submission that the decision to try this Applicant had not been taken. On the contrary, if it was apprehended that a speedy arrest of this Applicant might in some way jeopardise investigations into others, one might inquire rhetorically why the German authorities wished to take that risk if they had not yet decided that this Applicant was going to be prosecuted.
20. Lastly, Mr Mason points to passages in the paragraph which I have quoted which he suggests indicates that the District Judge did regard the warrant as in some ways unclear. For example, he points to the words "it is not clear from the terms of the EAW as a whole that the decisions have been taken" and that it was accordingly appropriate to look at extraneous material. Mr Mason's argument is that if the District Judge had not misdirected himself as to Kandola, he would have given more weight to those considerations and would have resolved the extradition issues in the Applicant's favour.
21. For the reasons which I have given in my observations about Mr Mason's first and second points, I am not persuaded that the District Judge did in fact fall into any error other than perhaps some infelicity of expression. But even if he did, I accept the submission of Miss Farrant on behalf of the Respondent that the actual decision which the District Judge reached cannot be said to be wrong.
22. For my part, I would be ready to agree with Miss Farrant's submission that the District Judge in fact had no need to go beyond the clear wording of the warrant, but the District Judge regarded the warrant by itself as less than entirely clear. He therefore took into account extraneous material which the Applicant wished him to take into account and he reached his conclusion to which I have referred. It cannot be said that he was not entitled to reach that conclusion.
23. In my judgment, it is clear that the Applicant could not discharge the burden which is cast upon him at the first stage of the application of section 12A. It follows that the second stage could not be reached and accordingly, the submissions made in that regard fall away.
24. Any error which the learned District Judge may have made in his interpretation of the guidance in Kandola did not, in my view, impact upon the decision which he finally reached because on a correct application of the law, he would have reached the same decision.
25. For those reasons, notwithstanding Mr Mason's persuasive submissions, this appeal fails and is dismissed.
26. MR JUSTICE HOLROYDE: May I thank you both again? I was very much assisted by you both.
27. Is there any other order I need to make, Miss Farrant?
28. MISS FARRANT: No.
29. MR JUSTICE HOLROYDE: Clearly the extradition will proceed in the ordinary course.
30. MISS FARRANT: Yes.
31. MR JUSTICE HOLROYDE: Good. Thank you.
32. ANNEX A: EXTRADITION ACT 2003 s12A
33. 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,

34. 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.

35. (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.

(2) In a case where the Part 1 warrant (within the meaning of the Extradition Act 2003) has been issued before the time when the amendments made by this section come into force, those amendments apply to the extradition concerned only if, at that time, the judge has not yet decided all of the questions in section 11(1) of that Act.

36. ANNEX B: EXTRACT FROM KANDOLA v GERMANY 2015) EWHC 619 (Admin)
37. 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.
38. 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.
39. 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".
40. 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.
41. 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.
42. 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.
43. 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.