QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BURNETT
MR JUSTICE OUSELEY
| (1) VANDA PUCEVICIENE
|LITHUANIAN JUDICIAL AUTHORITY
|GERMAN JUDICIAL AUTHORITY
|(3) FRANTISEK SAVOV
|CZECH JUDICIAL AUTHORITY
Mark Summers QC and Florence Iveson for the Czech Judicial Authority
David Perry QC and Benjamin Seifert for Puceviciene
David Perry QC and David Williams for Conrath
Hugo Keith QC and Ben Watson for Savov
Hearing dates: 18 March and 11 May 2016
Crown Copyright ©
LORD THOMAS OF CWMGIEDD CJ:
This is the judgment of the Court, to which all have contributed.
i) The first appeal was brought by Ms Vanda Puceviciene against the decision of District Judge McPhee on 28 September 2015 ordering her extradition to Lithuania on an EAW issued by the Prosecutor General's Office of the Republic of Lithuania, recognised as a Lithuanian judicial authority, in relation to a number of offences of fraud.
ii) The second appeal is brought by the Wuppertal Department of Public Prosecutions, recognised as a German judicial authority, against the decision of Senior District Judge Riddle of 13 November 2015 discharging Andreas Conrath, a German national, from an EAW issued in relation to a number of offences of fraud and theft.
iii) There was a third appeal brought by the Braunschweig Department of Public Prosecutions, recognised as a German judicial authority, against the decision of District Judge Ikram of 3 November 2015 discharging Saif Adel from an EAW issued in relation to his alleged incitement of a violent attack upon an ex-girlfriend. The EAW was withdrawn after we heard the appeal; Mr Adel has therefore been discharged. There is no need to consider the circumstances of his case.
iv) We heard subsequent to the three appeals a fourth appeal, brought by Frantisek Savov against the decision of the Senior District Judge on 2 July 2015 ordering his extradition to the Czech Republic under an EAW issued by the Prague Regional Court in relation to the organisation of a very large tax fraud and the laundering of proceeds to the value of many millions of pounds sterling.
THE GENERAL ISSUES
(1) The legislative framework
i) As explained in Cretu v Local Court of Suceava, Romania  EWHC 353 (Admin), [14, 15 and 17], the result of the United Kingdom's opting back into the Framework Decision under Title VI of the Lisbon Treaty from 1 December 2014, is that the Framework Decision has the status of a Directive. The consequence is that the Act is subject to the principle of conforming interpretation in EU law and decisions made in the United Kingdom in relation to EAWs are subject to the jurisdiction of the Luxembourg Court. In its most recent decision, Aranyosi and Caldararu C-404/15 – judgment 5 April 2016, the Grand Chamber has again made clear the general approach to the operation of the Framework Decision.
ii) We received no submissions by reference to the principle of conforming interpretation that s.12A is inconsistent with the Framework Decision. Its purpose, as summarised in paragraph 11 below, is to ensure that individuals are tried expeditiously following their surrender. Consequently in broad terms it is consistent with Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights and Freedoms. As the Luxembourg Court in Aranyosi and Caldararu recognised, the Framework Decision did not modify any of the fundamental rights specified in the Charter . The parties have proceeded on the assumption that s.12A is consistent with the Framework Decision. We have done the same.
iii) The Framework Decision contains no provision requiring either any particular stage to have been reached in the prosecution process before an "accused" person can be extradited, or requiring MLA to have been considered and rejected before an accusation warrant is enforced by extradition. The pro forma contained in the annex to the Framework Decision simply states:
"The warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution…"
iv) Article 15(2) permits "the executing judicial authority", which in the United Kingdom is Westminster Magistrates' Court, to request supplementary information from the requesting judicial authority.
"(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."
"(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person (in the case of a request under subsection (2)) or the authority by which the warrant is issued (in the case of a request under subsection (3)) to consider whether to consent to the request.
An adjournment under this subsection must not be for more than 7 days.
(5) If the person or authority consents to the request, the judge must—
(a) make whatever orders and directions seem appropriate for giving effect to the request;
(b) order further proceedings in respect of the extradition to be adjourned for however long seems necessary to enable the orders and directions to be carried out.
(6) If the request, or consent to the request, is withdrawn before effect (or full effect) has been given to it—
(a) no steps (or further steps) may be taken to give effect to the request;
(b) the judge may make whatever further orders and directions seem appropriate (including an order superseding one made under subsection (5)(b)).
(a) a request under subsection (2) or (3) is made before a date has been fixed on which the extradition hearing is to begin, and
(b) the proceedings are adjourned under this section, the permitted period for the purposes of fixing that date (see section 8(4)) is extended by the number of days for which the proceedings are so adjourned."
(2) The decision in Kandola
(a) The general approach as set out in Kandola
(b) The first stage of the s.12A inquiry: reasonable grounds for believing
(c) The second stage of s.12A inquiry: proof of the taking of the decisions
"(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 …?"
(d) The experience of applying Kandola
(e) The role of the CPS in putting information before the court
(f) The role of MLA
(3) Procedural Issues
i) The parties give timely notice of all arguments that will be taken and have the evidence available for the extradition hearing. Multiple adjournments and piecemeal requests for information must be avoided. The Lithuanian authorities in Mrs Puceviciene's case, in particular, would have been entitled to wonder whether the extradition proceedings were grounded at all in the Framework Decision.
ii) The questions which are appropriate to elicit the provision of further information to the court are framed in an open and transparent manner, as we have discussed at paragraph 27 above.
iii) Such questions are transmitted to the requesting judicial authority in a manner designed to obtain a swift answer. The Committee should consider whether it is desirable for the CPS to transmit the questions or whether the questions should be transmitted directly by the court.
(4) Ascertaining whether a decision to charge or a decision to try has been taken
"In addition to the circumstances of the particular appeal, this may be an appropriate case for a Divisional Court to consider the issue raised by the Chief Magistrate, viz., as he puts it, "this new section [i.e., section 12A] makes extradition difficult for many civil law countries, including Germany".
(a) Diversity of procedures in the EU
i) Taking the system in England and Wales as an example, the investigation often continues after the time the prosecution has decided not only to bring a charge but to try the person and whilst preparation for trial is underway; it is often the case that the prosecutor will charge the person suspected, he is brought before the Crown Court and a trial date fixed, when it is known that there will be, for example, forensic evidence to be adduced by the prosecutor to be served some while later. This is a consequence of the duty of the court under Crim PR 3.2(2) and (3) by for instance setting a timetable for steps to the trial of the case. In some cases, there is the need for investigation to continue during the trial phase.
ii) Similarly decisions on whether to charge or to try can be made by the police or the prosecutor or a person who is characterised as judge. There is no hard and fast rule.
iii) Some systems may require formal steps to be taken before an informal decision can be implemented in contrast to decisions in this jurisdiction which can be taken and implemented without any formality.
iv) Decisions to charge and try do not require a high evidential threshold in some jurisdictions; for example in England and Wales, there is no evidential threshold that has to be met before a decision is made to try a person who has been charged, as almost always the decision to charge will also be the decision to try as we observe at paragraph 56 below.
(b) The assistance given by the cases in the Republic of Ireland
"(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved."
"33. When s.21A speaks of "a decision" it does not describe such decision as final or irrevocable, nor can it be so interpreted in the light of the Framework Decision. The fact that a further decision might be made eventually not to proceed, would not therefore mean that the statute had not been complied with, once the relevant intention to do so existed at the time the warrant was issued. The Act does not require any particular formality as to the decision; in fact, s.21 focuses on (and requires proof of) the absence of one. The issuing state does not have to demonstrate a decision. A court is only to refuse to surrender a requested person when it is satisfied that no decision has been made to charge or try that person. This would be so where there is no intention to try the requested person on the charges at the time the warrant is issued. In such circumstances, the warrant could not be for the purposes of conducting a criminal prosecution.
34. The requirement of the relevant decision, intention or purpose can best be understood by identifying what is intended to be insufficient for the issuance and execution of a European arrest warrant. A warrant issued for the purposes of investigation of an offence alone, in circumstances where that investigation might or might not result in a prosecution, would be insufficient. Here it is clear that the requested person is required for the purposes of conducting a criminal prosecution (in the words of the Framework Decision) and that the Kingdom of Sweden intends to bring proceedings against him, (in the words of s.10 of the Act of 2003) Consequently it follows that the existence of any such intention is virtually coterminous with a decision to bring proceedings sufficient for the purposes of section 21A. As the Chief Justice pointed out in Minister for Justice v. McArdle, that result is not altered by the fact that there may be a continuing investigation, or indeed that such investigation will be assisted by the return of the requested person.
35….. What is impermissible is that a decision to prosecute should be dependent on such further investigation producing sufficient evidence to put a person on trial. In such a situation there is in truth no present "decision" to prosecute, and no present "intention" to bring proceedings. Such a decision and intention would only crystallise if the investigation reached a certain point in the future. …"
"It is nonetheless the case that with 27 Member States of the European Union and a multiplicity of legal systems it may not always be easy for a court in a requested country to ascertain whether a point has been reached in the criminal process of the requesting country in the case concerned where a decision has been taken to prosecute the requested person or the point at which there has been a decision to try."
"Following on from what is stated above … about the different systems which exist in contracting states and member states of the European Union, it is self-evident that the meaning of terms, so commonly understood in this jurisdiction, may have an unrelated or quite distinct meaning elsewhere. The evidence in this case clearly demonstrates this point."
"(i) Has a decision been made to charge (indict) the requested person?
(ii) If a decision to charge (indict) the requested person has been made, does this mean that a decision to put the requested person on trial has also been made?
(iii) Does a decision to put the person on trial have to be made separately from the decision to charge him or her and, if so, has a decision to put the requested person on trial been made in this case?"
"It has to be said that this letter does not present a very clear exposition of the requirements and nuances of Irish law. One can readily appreciate that a reader unfamiliar with Irish law might find this explanation dense and impenetrable. Given that more than three years have elapsed since the Supreme Court decision in Olsson, the ratio of which was not disturbed by the later decision of Bailey, one might have expected that by now, the central authority in this State would have prepared an explanatory note setting out the particular requirements of Irish law. This would be of practical benefit in providing clarity and consistency of approach whenever this issue arises. In any event it is not surprising that in replying to this letter, … the issuing judicial authority did not engage with the material contained in the body of the letter, but confined itself to answering the four questions raised."
See also her observations at paragraphs 17 and 24.
(c) Interpretative considerations
i) The background to the insertion of the provision into the Act as summarised in Kandola – see paragraph 11 above.
ii) The use of the terms "decision to charge" and "decision to try" plainly does not imply that the case must be trial ready.
a) We have referred at paragraph 40, by way of example, to the position in England and Wales, where a decision to charge and the decision to try (by, for example, the fixing of a trial date within a few days of an arrest in an indictable only case) can be taken at a very early stage of the proceedings whilst the investigation is still underway and it is known that the trial might be at some considerable time away. This is common in complex cases where the court needs to set a timetable to trial.
b) It is necessary to respect, under the principle of mutual confidence which underpins the Framework Decision, the responsibilities of the judiciaries in Member States of the EU to bring cases as expeditiously as possible to trial after the decision to charge and try has been made. It is not for the courts of England and Wales to supervise under the guise of s.12A the way in which such courts progress the cases before them.
iii) The term used in the section is "a decision to charge", not "charged". This plainly implies that the focus should be on the word "decision", not any formal step.
iv) It is often the case that in England and Wales a decision is made to charge a person and to try that person at a very early stage, where that person is a terrorist, leader of a gang or a danger to the public. It is therefore necessary to approach the meaning of s.12A on the basis that Parliament must have had this factor in mind and been appreciative of the fact that the consequences of finding that there has been no decision to charge and no decision to try in the Member State where the crime was committed will be that the persons detained or on bail under an EAW must be discharged.
v) The majority of persons detained or on bail subject to the EAW are sought (as these appeals all illustrate) by the prosecuting authorities or courts of their own nation state. It cannot have been intended by Parliament to make it easier for such persons to continue to reside in the UK or to make the task of progressing a prosecution more difficult.
vi) It is also important to emphasise that the real focus of s.12A is always on whether there has been a decision to try. If there has been no decision to try, the question of whether there has been a decision to charge is irrelevant. If there has been a decision to try, a decision to charge will inevitably have been taken either earlier or at the same time as the decision to try. The words "decision to charge" in reality add nothing to the achievement of the purpose, actual or supposed, of the Act or to its effect. They add nothing at either the "reasonable grounds" stage or at the second stage where the burden lies on those representing the competent authority of the requesting state to prove that the decisions have been taken.
(d) Our approach
(e) The court's consideration of the evidence
(f) The time at which the issue is to be judged
(5) The role of MLA in the working of s.12A
(a) Inconsistency with the wording of s.12A
(b) The purpose of s.12A
(c) The lack of explicit provision
(d) The explicit provision in s.21B
II: THE SPECIFIC APPEALS
(1) VANDA PUCEVICIENE
(a) The issue of the EAW
"1. Arrest warrant or judicial decision having the same effect: Court ruling dd.2011-11-04 …
Type: Ruling to impose constraint measure – arrest (arrest warrant) (pre-trial investigation file No.40-2-008-11)"
"[VP] has been absconding criminal prosecution (announced wanted on 2011-10-26) …"
(b) The 12 March 2015 questions and the response on 26 March 2015
"(i) Q: Was [VP] ever arrested/questioned in respect of these offences?
A: [VP] has not been arrested nor interviewed with regard to criminal offences incriminated against her;
(ii) Q: On what date did the authorities within the territory of the Judicial Authority reach the decision to prosecute [VP] for the offences in the EAW?
A: …Further to the decision dd. 2011-10-26 by Siauliai City District Prosecutor's Office [VP] has been recognised as a suspect and a search for her has been announced; Further to the ruling of the Siauliai City District Court dd. 2011-11-04 (arrest warrant) [VP] has been made subject to the constraint measure of arrest …;
(iii) Q: Please account for any delay in the decision to prosecute being made"
A: … On 2011-01-24 Siauliai City District Prosecutor's Office received the application by the bank AB DnB NORD with regard to alleged criminal activities of [VP] against A. Lungys, therefore on 2011-01-21 a pre-trial investigation into fraud was also initiated in the context of the case No. 40-2-008-11
(iv) Q: Was [VP] made aware of the prosecution? If so, how was she made aware?
A: [VP] has not been personally informed about the criminal prosecution that was being pursued against her. However, for the purposes of ascertaining the residence/location of [VP], her close relatives (mother, brother and father) were interviewed during the investigation and her mother explained that [VP] had been informed about the criminal prosecution which was being pursued against her and that she [VP] intends to return to Lithuania in the nearest future.
(v) Q: Please account for any delay in the period between the date(s) of the offence(s) and the EAW being issued.
A: The time span between the date of the commission of the crimes and the date when the EAW was issued can be explained by the fact that the perpetration of the crimes has not been disclosed straight away. As it has already been mentioned, it was only on 21 January 2011 that the pre-trial investigation was launched on the grounds of the report dd. 2011-01-18 and, further to the 2011-01-24 application, the investigation was initiated on 2011-01-25. Upon launching the investigation the search for [VP] was being conducted within the territory of the Republic of Lithuania and only when the fact of her having left the country was established the request for the issuance of the EAW was submitted.
(xi) Q: Lastly, please confirm that any evidence in respect of the accusatory matters within the EAW is still available.
A: Hereby we would like to confirm that there are witnesses who are able to testify with regard to charges listed in the EAW and who are ready to give a statement against [VP].
[xii] Q: Can you confirm if [VP] has repaid the money taken?
A: … During the investigation [VP] has not returned any money to the aggrieved persons.
(xiii) Q: Was any assurance/indication given to [VP] that she would not be prosecuted?"
A: [VP] has not been told/guaranteed that she shall not be prosecuted."
(c) The 8 April 2015 hearing
"The recent case of Kandola is the leading authority on Section 12A. The case provides guidance on the approach which I should take to such a bar acknowledging that the application of Section 12A in practice is not easy to work out because it involves two distinct stages."
He then summarised - from Kandola and continued:
"Here though the requested person has raised the issue before me and I approach the decision on the basis outlined at paragraph 30 of Kandola taking an objective view as to whether there are reasonable grounds for believing, which involves something more than simple assertion or a fanciful view or feeling but something less than proof on a balance of probabilities.
This case quite closely mirrors the case of Mr Ijaz dealt with in Kandola. I was therefore at that early stage satisfied, it having been raised by the requested person, that there existed reasonable grounds for believing that no decision has been taken to charge or to try the requested person. That was based on the EAW and further information provided by the judicial authority, albeit in response to a request for further information about the passage of time … . The warrant persistently refers to the requested person 'being suspected' of the offences and to pre-trial investigation. It does at one stage in Box F refer to her absconding from criminal prosecution. The further information makes it clear, however, that she is not a fugitive, nor has she been personally informed of the criminal prosecution being pursued against her. The letter says she has not been arrested nor interviewed with regard to the criminal offences incriminated against her. She has been formally recognised as a suspect since 26.10.2011. The letter refers to pre-trial investigation having commenced but makes no mention of it having been concluded or any decision to charge or try the requested person. The letter specifically says that the requested person has not been told/guaranteed that she will not be prosecuted. The lacuna I found was that nowhere on the warrant or the further information was it clear, at that time, that she has been told she would be prosecuted."
"Once again in all of the information provided the issue at that time was never pleaded or stated. In that event I was satisfied that there existed reasonable grounds for believing that the sole reason for the judicial authority not taking the decision to charge or try was not the absence of the requested person from Lithuania".
"Following the guidance in Kandola I determined to adjourn part heard to allow the judicial authority to respond to the simple questions suggested in Kandola at paragraph 34. The matter was next listed before me on 8 June 2015…".
(d) The questions asked on 13 April 2015 and response on 17 April
"A new bar to extradition has recently been introduced into English law. This is found within section 12A of the Extradition Act 2003 and relates to an absence of a prosecution decision in the requesting territory to 'charge' or 'try' the requested person in respect of criminal offences." …
[VP] relies on this bar to her extradition, namely that there has not been a prosecutorial decision in this case to 'try' or 'charge' her with the offences in question and that her absence from Lithuania was not the sole reason why either of these decisions has not been made.
It is clear from Box 'B' of the EAW that there was a ruling by the Siauliai City District Court on the 04 November 2011. This appears to be for a "warrant of arrest". I would therefore be grateful if you could provide further information in response to the questions below to assist us in making representations to the English Court.
(i) Has a decision been taken in this case:
(a) to charge [VP]? And
(b) to try [VP]?
(ii) If not, is the sole reason for this because she is absent from Lithuania?"
"(i)(a) Please be informed that in this case, by 26 October 2011 decision of prosecutor at Siauliai City District Prosecutor's Office, [VP] has been recognised as a suspect who is suspected into commission of criminal offences under [the Lithuanian Criminal Code].
Since the pre-trial investigation of the case has not yet been completed, it is not possible to bring charges against [VP]. Thus no such decision has been made recently.
(b) No decision to try [VP] has been made recently, because the case has not yet been transferred to the court for examination.
(ii) Despite the fact that sufficient data proving the fault of [VP] into the incriminated criminal offences has been collected in the course of pre-trial investigation, still, no decision regarding the charges against [VP] and transfer of the case to court has been passed, because [VP] was not present in the Republic of Lithuania since the beginning of the pre-trial investigation. Therefore there were no possibilities to conduct pre-trial investigation proceedings in respect of this person and make decisions on her procedural status and completion of the case".
(e) 12 May 2015 hearing
(f) The CPS letter of 14 May 2015 and response on 15 May 2015
"I apologise for having to contact you again, but the defence for [VP] have now applied to adjourn the hearing for 7 days under the newly enacted section 21B of the Extradition Act 2003:
This provides that if the Judge is informed that a request by a Requested Person has been made under s.21B for arrangements to be made to enable the person to speak with the representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant, the Judge must order further proceedings to be adjourned for 7 days if the Judge 'thinks it necessary to do so to enable the authority to consider whether to consent to the request'.
The request from [VP] is to see if you would be willing to make other arrangements to speak with her about this case (for example to speak with her via videolink).
Please note, this is only a request being made by [VP] to which you may consent or you can refuse".
"… in reply to the inquiry regarding the European Arrest Warrant issued against [VP], [the prosecuting authority] hereby informs that [VP] has a right to contact the Lithuanian authorities responsible for investigating or prosecuting the offences specified in the warrant. Prosecutor General's Office does not object the request of [VP]."
(g) The 18 May 2015 hearing
(h) The CPS letter of 29 May 2015 and response on 15 June 2015
"To be clear, the request from [VP] is specifically asking if you would be willing to make other arrangements to speak with her about this case instead of pursuing the European Arrest Warrant.
They have in mind, for example, interviewing her by way of video-link. So she would remain in the UK and you can complete the investigation and interview her, without her having to return to Lithuania.
Please note this is only a request being made by [VP] to which you may consent or you can refuse."
"Having acquainted ourselves with the inquiry of the Westminster Magistrates' Court of the United Kingdom regarding the request of [VP], hereby we would like to inform you that we have agreed upon the decision to apply for the continuance of the EAW-based procedure of the surrender of [VP] and for the consequent surrender of [VP] to the Republic of Lithuania".
(i) The hearings on 8 June and 12 August 2015
"… made plain that their decision was to continue with the EAW and not to make arrangements for [VP] to speak with the prosecutor. As a consequence I determined that there was no consent from the JA to the Section 21B(3) request of [VP] and determined to continue the case at the final hearing listed for 12 August 2015".
"I have reviewed the response of the JA dated 15 May 2015, which I saw for the first time on 12 August 2015 at the final hearing. If I had seen that document prior to commencing that hearing I have to say that I would have proceeded under Section 21B (5) and given directions as to how the MLA arrangements should be made and carried out. I do not consider the letter of 5 June 2015 to be a withdrawal of the consent of 15 May 2015 because the letter from the JA indicates an either/or approach to MLA or EAW whereas Section 21B (5) makes clear provision for both with the extradition hearing being adjourned to allow for the MLA.
In all of these circumstances, and whilst I acknowledge the length of time which this case had taken to the 12 August 2015, on the basis of evidence in the letter of 15 May 2015, which I took to be consent to the Section 21B(3) request to be interviewed by [VP], I reopened my decision to deal with the matter to a conclusion on 12 August 2015 and in light of the information which was new to me on 12 August 2015 and not placed properly before me on 8 June 2015 I gave directions for the JA to seek MLA via the national guidance, requiring the CPS to explain the position to the JA".
The matter was listed for review on 28 September 2015.
(j) The CPS letter of 2 September 2015 and the response on 18 September 2015
"We apologise for the need to contact you again in respect of this request. We do so to ensure that we are absolutely clear of your instructions and, in particular, that nothing has been lost in translation. We trust you will forgive the need for further contact in order to ensure we properly represent your interests.
As a result of two different enquiries we sent to you we have received the following two responses:
15 May 2015 – you indicated that [VP] has a right to contact the Lithuanian authorities responsible for investigating the allegations against her, and that you do not object to that request.
5 June 2015 – you stated that you did wish to proceed with the extradition proceedings.
To be absolutely clear, the British Parliament has introduced a provision whereby extradition proceedings may be adjourned (though not abandoned) if the Requesting Judicial Authority wishes to engage in questioning a Requested Person. During that process the Requested Person would remain in custody/on bail until the questioning had reached its conclusion. At that point, the Requesting Judicial Authority may either continue to pursue the extradition, or may withdraw the EAW.
In deciding whether you do, in those circumstances, to question [VP], you may wish to have regard to one other factor. As you are aware, the UK Parliament has introduced a provision which means a Requested Person can only be extradited if a) a decision to charge or try them has been made; b) no decision to charge or try has been made but the only reason for that is the Requested Person's absence from, in this case, Lithuania.
In [VP's] case you advised in your letter of 17 April 2015 that no decision to charge or try her has been made because '[VP ] was not present in the Republic of Lithuania since the beginning of the pre-trial investigation'.
You do not however state that her absence is the only reason. If her absence is the only reason, please do confirm this by reply. If however it is the case that a decision to charge or try could be reached following questioning pursuant to a Mutual Legal Assistance request, then I advise you to complete the process in order to ensure [VP's] extradition is ordered.
In all those circumstances, could you please confirm whether you wish extradition proceedings to progress now, or if you wish them to be postponed to enable you to question [the appellant] whilst she remains in the UK?
If you do wish to question [VP] you may of course do so informally, however for the reasons already set out I advise that an application for formal mutual legal assistance is made. This will require a letter, in English, to be sent to the UK Central Authority.
I attach a template letter of request for your assistance."
"… we do not intend to address the Central Authority of the United Kingdom regarding the interrogation of [VP].
We hereby additionally confirm that based on the information which was received from Prosecutor Arturas Karjakinas, who leads the pre-trial investigation, and was forwarded to you by our letter of 28 April 2015, the pre-trial investigation case contains sufficient data, which support [VP's] guilt in the commission of the criminal offences incriminated against her, however, the official charges were not brought against her because the suspect [VP] had left the Republic of Lithuania, which is the only reason why such a decision was not passed.
You are kindly requested to continue the procedure of surrender of [VP] to the Republic of Lithuania on the basis of the European Arrest Warrant".
(k) The 28 September 2015 hearing
"That information now makes plain to me for the first time that the only reason why the requested person has not been charged or tried was because she was not present in Lithuania […].
This is not now a case in which MLA has a role in that on the return to Lithuania I am satisfied so that I am sure that the decision to charge her will be made and the only reason why it has not been made has been her absence from Lithuania which MLA could not cure."
(l) VP's submission on appeal
(m) Our conclusion
i) All the judge had was the EAW itself and the answers to questions sent on 26 March 2015, but not the questions as well, which had been raised by the CPS in anticipation of a possible passage of time argument under s.14 of the Act.
ii) As the court said in Kandola and, as we have reiterated, the position will usually be clear from the terms of the EAW itself. The EAW made clear that VP was wanted for the purposes of conducting a criminal prosecution. Boxes (b), (c), and (f) are clear that she is alleged to have committed the offences. There is nothing in the EAW itself which casts doubt on that position.
iii) The 26 March 2015 response to the questions, taken by themselves, refer to the allegations against her, to the fact that she has been informed through her relatives that a criminal prosecution was being pursued against her, and that witnesses were able to give evidence against her. Read on its own without the questions, that response provides no evidence at all about whether the s.12A decisions have been taken or not. It did not provide reasonable grounds for forming the necessary belief that the relevant decisions have not been taken. There is merely an absence of any evidence. That is not enough. Read with the questions, the absence of evidence to support a belief on reasonable grounds is clear.
iv) However, the judge did not see the questions as he should have done. We recognise that the judge knew the questions had been directed at the passage of time issue (as is apparent from the citation we have made from his judgment which we have set out at paragraph 91), but the error he made might have been avoided if he had seen the full context. This again underlines the importance of the questions being provided with the answers.
v) Furthermore whatever the rights and wrongs of the decision in Ijaz, one of the specific cases relating to a request by Italy decided in the Kandola appeal, on which the District Judge relied, it is dangerous to read over specific formulations from other cases and especially those involving other countries.
vi) It is not surprising that a search in the responses of the requesting judicial authority for the terminology of s.12A yielded no clear result.
2. ANDREAS CONRATH
(a) The EAW
(b) The questions on 18 September 2015 and the response of 23 September 2015
"i) Q: Was [AC] ever arrested/questioned in respect of these offences?
A: The suspect has not been questioned as a suspect to date. He did not appear when initially summonsed for questioning and was not traceable later. He has not yet been arrested in the Federal Republic of Germany. He was arrested in the United Kingdom in September 2014 on the basis of a European Arrest Warrant from 29 June 2012. The extradition request was rejected on 11 December 2014, as an ascertainment of the proportionality could not be determined due to there being a lack of information concerning the actual or anticipated value of the damage. As a result of a recommendation made by the UK authorities, a new EAW was issued on 28 April 2015, this forming the basis of the arrest that has been made.
ii) Q: On what date did [the prosecutor] reach the decision to prosecute [AC] for the offences in the EAW?
A: Our investigation proceedings against the suspect commenced with the first crime report being filed against him on 26 July 2010. Additional reports were filed against the suspect and were then bundled to form these proceedings.
iii) Q: Please account for any delay in the decision to prosecute being made;
A: The investigations were conducted between 26 July 2010 and 10 May 2012 without any interruptions. The national arrest warrant was applied for on 10 May 2012. This was followed by searches being conducted of the premises of the suspect in addition to the seizure and analysing of computers. Witnesses were also questioned and investigations conducted on the premises of the crime victims. Additional proceedings against the suspect that were pending were bundled to form these proceedings. In the meantime the suspect was not traceable so that the proceedings against him were initially suspended on 9 May 2011 due to his whereabouts being unknown. A national search was conducted. When his whereabouts again became known on 27 May 2011 and other proceedings against the suspect were pending in the meantime, he was to be summonsed to appear for the questioning. He again did not react to this. He disappeared again during the further course of the investigation proceedings and the judicial authorities were unable to trace him. National Investigations also did not result in a determination of his whereabouts. An arrest warrant against the suspect was therefore applied for and issued, in addition to an international search being conducted. Information was already received in November 2012 that the suspect was in the UK. The aforementioned initial arrest was then made at the end of 2014.
iv) Q: Was [AC] made aware of the prosecution? If so how was [AC] made aware?
A: We summonsed the suspect for questioning but he did not appear. During a search of his home address that was conducted on 16 June 2011, the suspect informed the police officers who were present that he would mandate a lawyer and request him to safeguard his interests. We have not been contacted by a lawyer to date however.
v) Q: Please account for any delay in the period between the dates of the offences and the EAW being issued.
A: Please initially refer to (iii). Almost two years have passed since the commencement of the investigations and the issuing of the arrest warrant. The investigations have not been delayed. They were elaborate and the suspect was not traceable a number of times. The European Arrest Warrant was issued immediately after the national arrest warrant had been issued in each case or after refusal of the extradition on the basis of the first European Arrest Warrant respectively. Please refer to (i) and (vi).
vi) Q: What efforts were made to trace [AC] during this period?"
A: The proceedings were provisionally suspended for the first time on 9 May 2011 on the grounds that the whereabouts of the suspect was unknown. This was followed by a national search being conducted. The whereabouts of the suspect became known again on 27 May 2011, resulting in the search stated under (iv) being conducted and the investigations recommenced. In the meantime, additional crime reports were filed against the suspect. The suspect disappeared again in the ensuing period with the consequence that an arrest warrant against him was applied for on 10 May 2012. This was issued on 24 May 2012. The first EAW was then issued on 29 June 2012."
(c) 29 September 2015 Hearing
"The police visited him in Germany in about March 2011, saying they wanted to speak to him. He said he wanted a lawyer and was told to speak to the prosecutor's office in Wuppertal and as a result contacted the address given but received no response. Later he was advised by his ex-wife that police had been to see her and she gave them his UK address, although he cannot remember when that was. He told me that in December 2012 he applied for a new passport at the German embassy. He was told he could only be given a replacement passport because German police needed to speak to him. He emailed the prosecutor's office for a second time, and asked for a lawyer. He received no response.
In cross-examination he made it clear that he was not prepared to answer questions in Germany without a lawyer present but could not afford a lawyer. He was not avoiding an interview but was waiting for an interview to be arranged with a lawyer present. He was not told he could not leave Germany. He knew there was a continuing enquiry and he had not told the authorities of his address but his ex-wife had".
"From this further information I decided that there were reasonable grounds for believing that at least one of the two decisions had not been taken, and that the absence of the requested person from the category one territory is not the sole reason for the failure to make these decisions. The first stage of the process was determined in favour of the defendant, and further information was sought and obtained from Germany".
The proceedings were then adjourned.
(d) The questions asked on 7 October 2015 and response of 20 October 2015
"At a hearing on 29 September 2015, the Senior District Judge indicated that he required information from the German authorities as to whether a decision has been taken to charge [AC] and/or whether a decision has been made that he will stand trial in relation to these matters. The District Judge must be satisfied that these decisions have either been made or, that the sole reason that they have not been made, is [AC]'s absence from Germany.
I would therefore be grateful if you could provide responses to the following questions to assist us in making representations on your behalf before the Senior District Judge at the next hearing of this case on 30 October 2015.
1) Has a decision been taken in this case to charge [AC]?
2) Has a decision been taken in this case for [AC] to stand trial?
3) If the decisions above have not been taken, is the sole reason for the absence of these decisions the fact that [AC] is absent from Germany?"
A single answer was given to these three questions:
"Under German law, an indictment [the word in the German text is "Anklage"] is possible only if the residence of the accused is known. Since the residence of [AC] was unknown, an indictment was ruled out. The only possible means of prosecution in such a procedural situation are constituted by the national arrest warrant requested by the [prosecutor] and issued by the Wuppertal Local Court (Amtsgericht) on May 24, 2012 […] Under German law, the national arrest warrant assumes a so-called "strong suspicion", which is understood as the "high probability that the accused has committed the offence being prosecuted". This level of suspicion is to be assumed under more stringent conditions than the distinctive so-called "reasonable suspicion", which under German law allows charges to be brought already and which, by comparison, assumes that sentencing is more likely than an acquittal. Therefore, the strong suspicion affirmed in the national arrest warrant suffices to indict the accused [AC] immediately upon his extradition."
The fourth question was:
"(4) If [AC] is required to be present in Germany before a decision to charge or try can be made, please could you confirm whether you have considered less coercive options than the European Arrest Warrant. For example, the system of mutual legal assistance. Please confirm why less coercive measures than the European Arrest Warrant are not suitable in this case?"
The response to Question 4 was:
"Less severe measures (coercive measures) were not and are not promising in light of the course of events. By virtue of the European arrest warrant, the accused has been wanted since 2012. [AC] has not surrendered himself voluntarily. Extradition and the speedy indictment before a German court are the only way to prosecute the criminal offences committed."
(e) The judgment of 13 November 2015
"From this last quoted sentence, the last in answer to Question 4 it is clear that the prosecutor is satisfied that there is sufficient evidence to indict the requested person immediately upon his extradition. However it does not say that the decision to do so has been taken. I suspect that it is impossible in Germany to make that statement at this stage. The question I ask is whether the category 1 territory has proved (to the criminal standard) that competent authorities have made a decision to charge and a decision to try. The answer is that I cannot be sure that the decision has been taken. There is sufficient evidence to take that decision immediately on extradition, but it has not, for whatever reason, been taken so far."
"It is therefore for Germany to prove, again to the criminal standard, that the person's absence from the category 1 territory is the sole reason for the failure. That does not appear to be the case. Under German law, an indictment is possible only if the residence of the accused is known. On the face of it, it is not the presence of [AC] in this jurisdiction that provides the obstacle. It is the fact that at the time the decision was made, his address was not known. There may well be an overlap. It may be that his address was not known because he was in this country, or it may not. However the plain words of our statute require me to be sure that it is absence from the category 1 territory, as opposed to lack of known address, that is decisive in section 12A."
"I recognise that this new section makes extradition difficult for many civil law countries, including Germany. I do not speculate as to whether this was the intention of Parliament. The wording of the section is clear on the face of it, and despite the need for a cosmopolitan approach I have reached the conclusion that section 12A is not complied with, and I must discharge. For the record, I am persuaded that less coercive methods than extradition are not appropriate here. [AC] has moved time and time again and I am persuaded by the prosecutor that: "Extradition and the speedy indictment before a German court are the only way to prosecute the criminal offences committed"."
"Under German law, an indictment is possible only if the residence of the accused is known. On the face of it, it is not the presence of [AC] in this jurisdiction that provides the obstacle. It is the fact that at the time the decision was made, his address was not known. This was notwithstanding that the response had been that extradition and the speedy indictment before a German court is the only way to prosecute the criminal offences committed."
(f) The submissions on appeal
(g) Our conclusion on the decision to charge and try
i) The judge did not treat the EAW as conclusive. The reason for that was the further information provided on 23 September 2015 which the Senior District Judge regarded as decisive. It appears that he did not have the questions and did not appreciate that they had been asked in response to the issue raised under s.14.
ii) When read with the questions and with the EAW, and given a cosmopolitan reading, they provide no support for the absence of a decision to charge or try.
iii) The judge drew an inference from what was said about the absence of interview, which is to impose on the German system for these purposes the structure of the criminal procedure of England and Wales. That is understandable in the light of the questions suggested in Kandola, but wrong in principle.
iv) The conclusion from that material was that the prosecutor was going to charge and try AC when he could find him and conclude the procedures. That is sufficient, as he had made the relevant decisions.
v) In any event, the further information received on 20 October 2015 in response to the four Kandola questions, in our judgment, clearly established that the necessary decisions had been taken. The information was that AC had not been "indicted" but that in view of the strong suspicion, he would be "indicted" immediately upon extradition. On that material, the judge was bound to have been sure that a decision to "indict" had been taken. That ought to have satisfied him beyond doubt, absent further information, that decisions to charge and to try had been taken.
vi) It is not necessary for the requested person already to have been charged. The prosecutor could not have said what he said without having taken the equivalent of those decisions in Germany, even if they were not formal decisions, perhaps, as the judge surmised, because there are no such formal stages.
vii) As we have made clear at paragraph 54, there is no need for a formal decision.
(f) Our conclusion on the sole reason
(3) FRANTISEK SAVOV
(a) The EAW
(b) The initial proceedings before the Senior District Judge: bad faith
(c) The reliance on s.12A and the decision of the Senior District Judge on 2 July 2015
(ii) The evidence before the Senior District Judge
(a) An outline of Czech criminal procedure.
"(1) If the results of investigation provide sufficient grounds for bringing an accused before the court, the public prosecutor shall submit an indictment and attach the files and its annexes. The accused, defence counsel, and victim shall be notified on the submission of an indictment, if their residence or office is known..."
(b) The letter of 16 March 2015
"depends mainly on the fact that the accused [FS] could not yet be heard. Within the case, a large volume of electronic data involving millions of files which are examined has been obtained." Criminal proceedings with an international element, mutual legal assistance, expert opinions and complex evidence may last "even several years".
(b) The March 2015 prosecutor's review
"The criminal proceedings are continuing smoothly, the police authority is in daily contact with the public prosecutor and regularly informs her of the progress of the criminal proceedings. The pre-trial proceedings could not be completed because all the evidence essential for the case had not been taken, especially with respect to evaluation of the items seized, and the legal aid requested had not been obtained. The criminal prosecution of all the accused is still justified and in addition there remains a suspicion that the criminal activity was committed in the manner stated in the rulings about commencement of the criminal prosecution."
(c) The letter of 28 May 2015
i) The prosecuting authorities had formed the view that it was necessary to issue an EAW and detain FS because: (a) he was a fugitive from justice who would continue to evade the proceedings unless located and detained; (b) there was a risk he would seek to influence co-defendants and witnesses as they worked for him and were paid by him; (c) there was a risk he would continue committing the criminal activity;
ii) According to Czech law, the issue of an EAW for the purpose of extradition and prosecution was "not conditioned by an indictment having been submitted". It sufficed that the resolution to commence criminal proceedings under s.160 had been issued;
iii) A necessary condition for the Czech prosecuting authority to submit an indictment was the interrogation of the defendant; this was not express but presumed, the purpose being to give the defendant an opportunity to exercise his legal rights to defend the allegation before the prosecutor makes a decision to send to trial. The reason no indictment had yet been issued was because it was now necessary to interrogate FS;
iv) This case involved a very large investigation in terms of evidence; that investigation was continuing. However, it was possible to conclude on the evidence already obtained that FS was an organiser of the criminal activity, a number of co-defendants having already been interrogated as 'cooperating defendants';
v) Subject to the facts that might arise from the interrogation of FS, it was the intent of the Czech authorities to submit an indictment;
vi) Upon extradition, the interrogation of FS as an accused would be performed by an investigator within several days. In the present case the accused had instructed two defence counsel; they had a right to be provided with enough time to peruse the file and produce further evidence; once this had occurred, the indictment would be submitted by the prosecutor.
"It would have been technically possible, instead of issuing a European Arrest Warrant, to proceed to issue an indictment against [FS] under the fugitive procedure in his absence and to proceed to trial in his absence. But that was considered unsatisfactory, because there are 10 co-defendants prosecuted for the same acts and it was considered more appropriate and fair to attempt to locate him and proceed in the normal way and to prosecute defendant [FS] together with other defendants. The criminal activity of all defendants is mutually interconnected and defendant [FS] is an organizer. As a fugitive defendant [FS] would have a right to re-trial, if he was surrendered to the Czech Republic after his conviction."
"It means that the necessary condition for the prosecuting attorney to submit an indictment is the performance of the interrogation of the defendant [FS]. The Criminal Procedure Code of the Czech Republic does not set such condition expressly nevertheless presumes it quite apparently. The purpose of the interrogation of the defendant is double - on the one hand, it is means of proof (unless the defendant uses his right to not testify), on the other hand, it is means through which the defendant can exert his defence. It is absolutely unthinkable that the defendant could be denied the opportunity to defend himself by way of giving testimony before the submission of an indictment… He/she may ask that he/she be interrogated with his/her defence counsel present and that the defence counsel take part in any other acts pursued within the pre-trial proceedings (section 165)."
"The objective fact is that this case involves very large investigation in terms of evidence - millions of files deciphered by experts have been seized in electronic storage. The files have been delivered to the police and the investigation has continued since the resolution to commence criminal proceedings in terms of Section 160 of the Criminal Procedure Code was issued. Based on evidence, it is possible already now to conclude that the defendant [FS] is an organiser of the criminal activity in question; he was giving instructions to the co-defendants. A great many witnesses were interrogated in the case, some of the co-defendants asked for being granted a status of cooperating defendant. They have been interrogated by the prosecuting attorney. There are also witnesses in the case who have withheld testifying by reasons of a threat of being criminally prosecuted themselves. Such a witness is Mr Petruska who was a witness within the extradition procedure in Great Britain. When analysing the flow of financial means it has been found out that Mr Petruska was also the recipient of the financial means transferred by the companies controlled by the defendant [FS].
Subject to the facts that arise from the interrogation of the defendant [FS], the intent of the Czech authorities is to submit the indictment meeting all statutory conditions, justify the indictment duly and analyse the evidential situation already in the indictment which is a standard course of action in the submission of an indictment in any case."
"The reason no indictment has yet been issued is because, as stated above, it is now necessary to interrogate the defendant [FS]".
After his extradition, the interrogation would be undertaken within "several days" by the police, in the presence of his defence counsel, the defence counsel of the other defendants, and the prosecuting attorney. Then all defendants had the right to examine the whole file, and to produce further evidence. After that process, she was "prepared to submit an indictment".
"In my opinion, only the extradition of the defendant [FS] to the Czech Republic will make it possible to finish the pre-trial criminal proceedings, submit an indictment and duly finish the criminal prosecution."
Were extradition refused on the basis of s.12A, she would ask the Prague District Court to request the temporary surrender of FS for the purposes of his interrogation, so that, once finished the indictment could be submitted.
(d) The evidence called on behalf of FS
"To help me consider this single issue I had four lever arch files of evidence and authorities. Two witnesses attended from the Czech Republic to give evidence. There was argument over translations (the defence provided their own translation), the meaning of the Czech Criminal Code, and over the meaning of everyday words such as "charge" and "accusation". The hope expressed by Aikens LJ in paragraph 34 … was not fulfilled in this case. The comment about elaborate evidence rang true.
Two Czech lawyers gave evidence before me, and another made a statement. I was grateful to them. However, each of them could be considered, in a greater or lesser way, as part of the defence team. They had all been involved in challenging earlier decisions in the Czech Republic. It is a reasonable assumption that one or more of them will be involved in future challenges there. This puts them in a difficult position as a witness commenting on the rights and wrongs of this particular case. An advocate fearlessly argues points in his client's favour. It is difficult in the middle of litigation to take a dispassionate view.
(iii) The decision of the Senior District Judge
(a) The decision to try.
"… it is Dr Bicanova and the Municipal Prosecuting Attorney's Office in Prague, who decide whether to submit an indictment (s175(1)(b)) of the Code. She states that it is the intention of the Czech authorities to submit the indictment, subject to facts that arise from the interrogation of this defendant. As things stand, the decision has been made that the matter will proceed to trial. This is not a case where the prosecutor is looking for further evidence to justify such a decision. The prosecutor tells me, and I accept, that it would have been technically possible to proceed to issue an indictment against [SF] under the fugitive procedure in his absence and to proceed to trial in absence. The reason for not doing so was that there are ten co-defendants and a trial in his presence through the EAW was considered to be more appropriate. Moreover, based on the evidence, it is possible "already now to conclude that the defendant [FS] is an organiser of the criminal activity in question." Thus the authorities have the evidence and have the intention to prosecute. Section 176 appears to be in mandatory terms: "If the investigation results sufficiently justify the position of the accused before the court, the public prosecutor shall submit the indictment…
I am asked to conclude that an intention to try is not the same as a decision to try. I am not persuaded there is a distinction in this context. When is a decision to try taken in this jurisdiction? Here the prosecutor assures me she intends to submit the indictment. It is her decision. She has made it."
"she intends to proceed to trial. She tells me that on the information and evidence before her, this is her current intention. I accept it." "
(b) MLA and the sole reason
"appropriate and necessary in the interests of fairness, not least bearing in mind that there are ten co-defendants. The size and scope of this investigation makes it clearly unsatisfactory that the person considered to be at the centre of the allegation is absent from any trial involving others. The fairest trial involves obtaining the defendant's own account (if he wishes to give it) and it then follows from Czech procedure that further enquiries by the co-defendants are necessary. Reasons are given why MLA is not appropriate, and I accept them. Indeed I do not understand the defence to argue that MLA should take place, with the defendant interrogated here. It is almost certainly unwieldy, because of the size and nature of the documentation. The suggestion of temporary surrender, while helpful, has not been taken up and is not directly relevant to the question as to whether the defendant's absence is the sole reason why no indictment has been preferred."
"Mutual respect is essential to the operation of the EAW. The defence here fell short of saying Dr Bicanova is lying. They may think that the file and the stage of the investigation do not justify her approach. They may even think she is wrong in law. However, it is not for me to look for the reasons behind decisions to prosecute. Ultimately these are decisions, no doubt in difficult circumstances, for the prosecutor alone."
(iv) The proceedings on the appeal
(a) The provenance of the new evidence which FS sought to put before the Court
(b) The documents produced
i) A record of supervision of the case, dated 29 October 2015. It described the success of the extradition proceedings before the Senior District Judge. It referred to the request made by "the British side" for the prosecutor's opinion on the use of MLA, and for further information on the circumstances which led to the issuing of the EAW. It recorded that, on 21 November 2014, the prosecutor "requested serving of the resolution on initiation of prosecution, on instruction of the accused and on performance of his interrogation by way of request for legal assistance addressed to the Home Office Judicial Co-Operation Unit in London". The request also asked that the lawyers for the other accused, as well as the police, be present at this interrogation. The request had gone unanswered. It remains unanswered. There was no adverse comment by the inspecting prosecutor on the supervision of the prosecution by Dr Bicanova.
ii) The second document was the next six monthly review by Dr Bicanova dated 11 September 2015, as foreshadowed by the March 2015 review of the proceedings which we have set out at paragraphs 156-157. The November review followed much the same format as the March review. The steps since March 2015 had included dealing with the extradition of FS, the interrogation of witnesses who were then penalised for refusing to testify, further expert opinion, an "unending effort" dealing with millions of files, and an unsuccessful objection that the Public Prosecutor's Office was biased. The proceedings had not been concluded because of the MLA requests in the USA and the Dominican Republic, and the still awaited extradition of FS, the analysis of financial transfers was not complete, and much the same other reasons as had been identified before. She continued, before extending time to March 2016:
"The process is ongoing, the police authority is in daily contact with the public prosecutor, she is being kept informed of the developments of the criminal investigation. The preliminary proceedings could not have been concluded because not all the evidence necessary had been processed, especially evaluation of the confiscated material - and the legal aid requested had not been provided. The criminal proceedings of all the accused is still justified, suspicion continues that criminal activity has been carried out as described in the resolutions on initiation of criminal proceedings.
The police authority itself filed a request to prolong the period stating, that termination of investigation lies especially in the extradition of [FS], his interrogation and the termination of data analysis on the servers."
The last paragraph is important.
(c) The "evidence" of FS's lawyers
(d) The evidence of the prosecutor
"Full interrogation of the accused would, in view of the scope of the criminal matter, require putting tens of much detailed questions and confronting the accused with the produced evidence while no submission of any evidence to the accused during the questioning was requested. Nor was it requested that the accused be familiarised with the criminal file which is a necessary condition for finishing the investigation."
"… Alongside this, however, being informed that he was arrested in the United Kingdom (though not informed of his exact address at that time) I was obliged to do everything to make it possible for the accused [FS] to comment on the matters of facts he is being charged with should he wish to do so and thereby to take part in proceeding in person and to defend himself. In November 2014 when I was preparing this request for legal assistance I came to believe that the proceedings on the extradition of the accused [FS] to the Czech Republic would take longer time and I tried to provide the accused [FS] with the aforementioned opportunity as soon as possible. I also expected that on the basis of the execution of the request for legal assistance I would get the official information about the precise address of residence of the accused [FS] in the United Kingdom which would enable me to end the regime of proceedings against a fugitive."
(e) The further statement of FS' lawyer
(f) The submissions on the appeal
(g) The provision of the questions asked of the judicial authority
(v) Our conclusions
(a) The admission of the further evidence and the allegation of misconduct by the prosecutor
"If the grounds for the proceedings against a fugitive have expired, the criminal proceedings shall continue pursuant to the general provisions."
(b) A decision to try has been made
i) In the present case, there was an identifiable stage within the Czech Criminal Code, after the submission by the police of a petition for an indictment, where the prosecutor has to make a decision whether or not to lodge the indictment.
ii) That does not prevent the decision to try for the purposes of s.12A being made earlier.
iii) Although an intention to try is not of itself a decision to try, the precise language in which the decision is couched is less important than the reality of whether the judge at the extradition hearing can be satisfied that the decision to try has actually been taken.
iv) A decision to try which may be changed by subsequent events, such as what is said upon interview by the requested person, is nonetheless a decision to try.
i) The letter of 16 March 2015 is equivocal, as it is not directed to that issue. It does nothing to contradict such a decision having been made. Neither we nor the judge have been asked to go behind the conclusion that there were reasonable grounds for believing that the decision had not been taken, and in this case we do not think it necessary to do so.
ii) The letter of 28 May 2015 setting out further information is quite clear.
a) The prosecutor could have lodged the indictment in his absence, as she says. That meant that she had decided to try him but in this multi-handed fraud, concluded that in the interests of FS, the other defendants, and the coherence and effectiveness of the prosecution, they should all be prosecuted together. It is clear that she means that this included trying them together:
"The criminal activity of all defendants is mutually interconnected and defendant [FS] is an organizer."
b) FS would have the right to a retrial if extradited after conviction. That all made sense in the context of a decision to try having been made, but rather less sense if no such decision has been made.
iii) The prosecutor's comments about the need for FS to be interrogated before the indictment is lodged was not an error of law about what was necessary, but was a reasonable judgment about what steps were necessary for the decision to try to be made effective: this had to happen in order to proceed with the lodging of the indictment.
iv) Her view that it was now "possible to conclude that FS is an organiser of the criminal activity" was not a phrase about what may or may not be possible; it meant that she had already found it possible to conclude that he was an organiser of a fraud.
v) If so, it is difficult to see on what basis she could not have taken the decision to try him in the light of all that she says.
vi) The paragraph in the letter in which she stated that subject to what might be found in the interrogation of FS, "the intent of the Czech authorities is to submit the indictment" is in substance more than a mere statement of an intention. In context, what she says evidences a decision to submit an indictment, and so to try him.
vii) The reason, she said, why no actual indictment had been issued was the need to interrogate the absent FS, which precluded the presentation of the petition to her by the police. She described the steps: interrogation would follow shortly after FS's extradition, followed by the examination of the whole file by the defendants, the production of any further evidence by the defendants, and then she "is prepared to submit an indictment". She plainly assumed, on what to her was a sound basis, that the police would submit the petition. It is only his return which will enable the pre-trial proceedings to finish, the indictment to be submitted and the prosecution finished, which is obviously the conclusion of the trial. That is all supportive of a decision to try having been made. It is the formal step to give effect to the decision, that is the lodging of the indictment, which cannot be taken. This requires the lodging of the petition which, for sound reasons here, requires the prior interrogation of FS. The prosecutor did not say, contrary to FS's submission, that the lodging of the indictment would follow shortly after extradition. It is the interrogation which would follow shortly. As the prosecutor pointed out, there are further steps, including the defendants' familiarisation with the file, which have to be taken before the indictment can be lodged.
(c) MLA and the sole reason issue
The evidence of foreign lawyers