England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/11/2016

Mr Justice Holroyde :

1. On 6^th August 2015 District Judge (Magistrates' Courts) Tempia ("the DJ") ordered the extradition of Mr Bledar Prenga ("the appellant") to Italy, where he is accused of serious drug trafficking offences. Mr Prenga appeals against the order for his extradition.
2. I am grateful to Mr Watkins and Ms Hinton for their written and oral submissions on behalf of the appellant and the requesting judicial authority ("the respondent") respectively.

The ground of appeal:

3. Italy has been designated a Category 1 territory for the purposes of the Extradition Act 2003, and the appellant's extradition was ordered pursuant to section 21(3) of that Act. Before the DJ, the appellant challenged extradition on three grounds, relating to sections 12A, 2(4)(c) and 21A of the 2003 Act. In this appeal, however, he has advanced only one ground of appeal: namely,

"that the DJ erred in concluding that the decisions required by s12A of the Extradition Act had been taken, because

a) She was wrong in law that an intention to formally request committal to trial could amount to a decision to try for the purposes of s12A; and

b) She failed to consider at all whether a decision to charge had been taken."

4. For the purposes of this appeal, therefore, the key statutory provisions are sections 12A and 26-27 of the Extradition Act.
5. Section 12A, headed "Absence of prosecution decision", provides:

"(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if) –

a) it appears to the appropriate judge that there are reasonable grounds for believing that –

i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions) and

ii) the person's absence from the category 1 territory is not the sole reason for that failure, and

b) those representing the category 1 territory do not prove that –

i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or

ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.

(2) In this section "to charge" and "to try", in relation to a person and an extradition offence, mean –

(a) to charge the person with the offence in the category 1 territory, and

(b) to try the person for the offence in the category 1 territory."

6. Where extradition is ordered to a category 1 territory, section 26 provides a right of appeal to the High Court on a question of law or fact. Section 27, headed "Court's powers on appeal under section 26", provides –

"(1) On an appeal under section 26 the High Court may –

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that –

a. the appropriate judge ought to have decided a question before him at the extradition hearing differently;

b. if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that –

a. an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

b. the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

c. if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must -

a. order the person's discharge;

b. quash the order for his extradition."

Case law relating to s12A of the Extradition Act 2003:

7. There have been three important recent decisions of Divisional Courts which are relevant to this appeal. Only one of them had been decided before the hearing at first instance in this case.
8. On 13^th March 2015 a Divisional Court handed down judgment in the case of Kandola v Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097. At paragraphs 26 – 34 of the judgment, the court gave guidance as to the construction of s12A, and explained that it involves two distinct stages. At the first stage, the court would be concerned with whether there were reasonable grounds for believing (a) that at least one of two decisions (ie to charge, or to try, the requested person) had not been taken, and (b) that the absence of the requested person from the category 1 territory was not the sole reason for the failure to make one or both of those decisions. It was for the requested person to establish that there were reasonable grounds for believing both of those negatives. Only if he did so would the second stage arise for consideration. At the second stage, it would be for the requesting state to prove to the criminal standard that the decisions to charge and to try had both been made.
9. In relation to the first stage, the court in Kandola said (at paragraph 31) that if it was clear from the EAW itself that the two decisions had been taken, then the DJ should look no further. If however the warrant itself did not make it clear whether the decisions had been taken, then the DJ would be entitled to consider extraneous evidence; but the court discouraged the adducing of expert evidence about the relevant domestic law, saying that it should not be regarded as normal practice though it may be necessary "in rare cases".
10. The judgment of a Divisional Court in Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin), given by the Lord Chief Justice, was handed down on the 22^nd July 2016. At paragraph 50, with reference to the best approach to ascertaining (at either the first or second stage) whether a decision to charge and a decision to try have been made, the court said at paragraph 50:

"(vi) It is also important to emphasise that the real focus of s12A 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."

11. It is necessary to cite a lengthy passage at paragraphs 51-56 of the judgment, in which the court set out the correct approach:

"51. We reiterate the guidance given in Kandola which we have summarised at paragraphs 13-15 as to the first stage of the inquiry. In many cases it will be clear from the terms of the warrant that the decisions have been made. That is the end of the matter, unless there is evidence which raises an issue as to whether the decisions have been taken.

52. If there is such evidence before the judge, then so that the requesting judicial authority can provide assistance to the judge, the requesting judicial authority must be provided with some explanation of what is meant by the terms "decision to charge" and "decision to try". The authority needs that explanation so that it can provide by reference to the relevant procedural system a description of the functional equivalents of those terms and the stage the proceedings have reached.

53. We do not envisage anything elaborate by way of explanation, but simply to use the terms of the Act without such an explanation is insufficient. …

54. In explaining the requirements, it will be necessary to deal with the issue of formality and contingent or conditional decisions. We see no reason why any formality is required in relation to the making of a decision, as a prosecutor is entitled to make a decision to try a defendant before implementing any formal steps necessary, unless the procedural law of the requesting state prevents informality. Furthermore, in our view, a decision to try is nonetheless a decision to try even if it is conditional or subject to review. We find the judgment of the Irish Supreme Court in Olsson very persuasive in these respects, as we have stated at paragraph 45 above. There will, for example, be a decision to try, even if it is taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try.

55. However, although the focus will be on the decision to try, as we have set out at paragraph 50(vi), it may be necessary for the court to receive additional information as to whether there has been a decision to charge. It will usually be clear from the statement in the EAW that there has been a decision to charge as, in general, the request for the surrender of a person for the purposes of criminal prosecution cannot be made unless there has been such a decision. If that it is not clear from the EAW, the meaning of a decision to charge may have to be explained. In our view, a decision to charge is the decision which is made when there is sufficient evidence under the relevant procedural system to make an allegation that the defendant has committed the crime alleged. As the decision can be conditional upon hearing what the defendant has to say, such a decision can have been made even if it is necessary to put the allegation to the defendant and hear what he has to say before confirming the decision and proceeding to make the charge.

56. A decision to try is simply a decision where the relevant decision maker (who may be a police authority, prosecutor or judge under the relevant procedural system) has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made. In some systems, it may be the case that the decision to make the allegation that the person has committed a criminal offence will also be a decision that the matter will proceed to trial, subject to hearing what the defendant has to say or to subsequent review. In England and Wales, the decision to charge will almost always be the decision to try. In other systems it may not be and a separate decision to try has to be made, even though that decision may be conditional or contingent upon other matters. Again for the reasons we have given a decision is a decision even if informal."

12. On 12^th August 2016 a Divisional Court handed down judgments in the cases of Doci v Court of Brescia, Italy; Motiu v Criminal Court Nowy of Santa Maria Capua Vetere, Italy [2016] EWHC 2100 (Admin), in which s12A was considered in the context of Italian criminal procedure. Following Puceviciene, the court reiterated that decisions to charge or try require no formality, and that they may be revocable or contingent on some further procedural step being taken. Again following Puceviciene, the court said at paragraph 32 that the statement in the EAW that surrender is sought for the purpose of conducting a criminal prosecution usually shows that there has been a decision to charge, and that may also be the same as the decision to try. The court however then went on in paragraph 33 to say:

"There may be systems where the decisions are different, notably where the decision to charge and the decision to try are made by different bodies. Italy provides an example, and this judgment reflects the need for the decision, informal or contingent, to be taken by the person who has the institutional competence to take it. Here, it is the public prosecutor who takes the decision to charge, and the GIP under the immediate trial procedure who takes the decision to try. But that does not require the formal stages under Italian criminal procedure to have been reached where the formal and final decision are taken."

13. In Mr Motiu's case, there had been an order for precautionary measures. The court said at paragraph 53 that the case would therefore be expected to proceed in accordance with the immediate procedure (as to which, see paragraph 22 below):

"There was no basis at all for supposing that the prosecutor, having applied for the order, would not request the decree, and have it granted in the light of the evidence presented to the GIP and accepted by him for the purposes of the precautionary measures order. Indeed, in view of what is required for such an order to be granted by the GIP on the prosecutor's application, both prosecutor and judge have appraised the evidence as sufficient for conviction to be likely or highly likely. In these circumstances, the order for precautionary measures is also a contingent but not formal decision by the GIP that Mr Motiu should be tried, a decision contingent on his presence in Italy, interview, and a prosecutor's request if necessary, but a decision made by the person who is empowered to make the decision to try."

The relevant chronology of this case:

14. The allegations against the appellant relate to events in August 2009 and May 2011. It is alleged that he was part of an organised criminal association which was engaged in importing large quantities of cocaine and heroin into Italy. Three separate criminal offences are alleged against him, each of which carries a maximum sentence of 30 years' imprisonment.
15. On 4^th July 2014 the Court of Florence made an order against the appellant for his pre-trial precautionary custody in prison. That order was issued by Dottore Alessandro Moneti, who held the post of Judge for Preliminary Investigations (Giudice per le indagini preliminari, "GIP") in relation to the allegations against the appellant. Thus far, the Italian authorities have not been able to execute that order, because the appellant has not been within their jurisdiction.
16. On 25^th October 2014 the respondent, through Dottore Moneti, issued a European Arrest Warrant ("EAW") against the appellant. The preamble to the EAW stated –

"I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

The importance of a preamble in those terms was expressed in Powney v Slovenia [2015] EWHC 2543 (Admin) at paragraph 26.

17. The content of the EAW made it clear that it was an accusation warrant. It recited the making of the order for pre-trial precautionary custody. It set out the allegations against the appellant, and summarised the evidence against him, which included evidence of highly incriminating conversations in wiretapped telephone calls.
18. On 11^th November 2014 the EAW was certified in this country by the National Crime Agency. On 27^th November 2014 the appellant was arrested in this country and brought before the Westminster Magistrates' Court.
19. On 27^th May 2015 the public prosecutor in Florence issued a "Notice to the person under investigation that the preliminary investigations are concluded". This referred to the three allegations, particulars of which were given in an annex ("Where Prenga Bledar is charged of the offences specified …"), and informed the appellant that the preliminary investigations were concluded and he would have 20 days in which to

"submit defence statements, further documentation, deposit documents concerning the investigation activity carried out by the defence counsel, request further investigations from the public prosecutor, appear to make further statements and request to be submitted to investigation."

Copies of that notice in the English, Italian and Albanian languages were served on the appellant on 3^rd June 2015. A copy was served on the appellant's Italian lawyers, in Italy, on 25^th June. Thus the 20-day period to which the notice referred expired, at latest, on 14^th July 2015.

20. The extradition hearing took place on 3^rd July 2015. Case management directions as to the filing by the appellant of expert evidence had been given on 9^th January 2015, before the decision in Kandola was handed down. As a result, although expert evidence was discouraged in Kandola, the DJ received written and oral defence expert evidence from Professor Stefano Maffei of the University of Parma. She also received written evidence from Ms Sally Cullen, the UK Liaison Magistrate to Italy. The DJ reserved her judgment.
21. The 20-day period referred to in the "Notice to the person under investigation that the preliminary investigations are concluded" expired after the extradition hearing but before the DJ handed down her judgment.

The evidence before the DJ:

22. Prof Maffei's report of 10^th March 2015 included, in summary, the following features of criminal procedure in Italy:

i) The initial phase of a criminal investigation gathers information about the suspect.

ii) At the end of the investigation phase, the prosecutor has the duty and authority to decide either to prosecute the suspect or to seek a dismissal from the GIP. Prosecution is mandatory unless the information which has been gathered is incapable of supporting the accusation at trial.

iii) The decision to prosecute is preceded by issuing the formal notice of closing of the investigations, which makes explicit reference to the prosecution intention to prosecute the suspect. Once this notice has been served, proceedings may continue without the defendant being present, save in circumstances where he is absolutely prevented from appearing in court.

iv) The decision to prosecute is then taken by the prosecutor, at which point the status of the suspect changes to that of defendant or accused.

v) There is then a preliminary hearing before a single judge (the Guidice per l'Udienza, "GUP", who cannot be the same person as the GIP). This hearing serves as a filter before the case goes to trial.

vi) Pre-trial precautionary custody can only be ordered by a judge, on the application of a prosecutor. It can only be ordered where (a) there is probable cause – "serious circumstantial evidence" – against the suspect or defendant, and (b) there is a significant risk that the suspect of defendant will flee, interfere with evidence or commit further offences.

vii) The making of an order for pre-trial precautionary custody might be regarded as the equivalent of a charge, on the basis that it necessarily involves a finding of probable cause.

viii) Prof Maffei did not however favour that view. In his opinion, the decision to prosecute, taken at the end of the preliminary investigation, undoubtedly is the equivalent of a "charge" in this country.

ix) The decision to commit a defendant to trial is ordinarily made by the GUP at the end of the preliminary hearing. That is "the ordinary procedure". There are exceptions to the general rule, though they are not said to apply in this case: the GIP may grant a direct committal to trial (omitting the preliminary hearing) where the evidence against the defendant is regarded as overwhelming or where the defendant is in pre-trial detention. A direct committal to trial by the GIP is the "immediate procedure" referred to in Doci; Motiu above.

x) Where a preliminary hearing takes place, in his opinion the decision to try is taken by the GUP at that hearing.

The DJ's judgment:

23. In her judgment handed down on 6^th August 2015, the DJ rejected all three challenges to extradition. In relation to the issue raised under s12A, she referred to the oral evidence of Prof Maffei. He had given evidence to the effect that the recent service of the notice of closing of the investigations showed that the prosecutor intended to prosecute and was about to make the decision to charge; but, he said, that decision had not yet been taken, because the appellant was still within the 20-day time limit to which the notice refers. The DJ recorded in her judgment that Prof Maffei's view was that it was likely that the prosecution would formally charge the appellant at the end of the 20 day period, and would file a request for committal to trial; but in the circumstances of this case, only the GUP could make the decision to commit for trial. In summary, his evidence was that "at this stage, neither a decision to charge nor a decision to try has been taken".
24. The DJ referred to Kandola and quoted the passage to which I have referred. At paragraph 18 of her judgment she then expressed her conclusion as to the s12A issue in these terms:

"On assessing all the evidence in my judgment the evidence of Sally Cullen dated 3^rd July 2015 is clear. She has spoken to Dott. Giulio Monferini who is responsible for this case in which he has confirmed that notice of the conclusion of the preliminary investigation was served on Mr Prenga's lawyers on 25^th June and that the prosecutor will make a request to commit Mr Prenga for trial. The 20 day period is a procedural requirement to allow Mr Prenga to 'present memorials, lodge documentation in relation to investigations by the defence and ask for the prosecutor to conduct investigations and the accused person can give declarations or ask to be interviewed. If the accused person asks to be interviewed the prosecutor has to proceed to do that. The 20 day period doesn't expire until 15 July. If no requests are made by the defence then once the 20 day period has expired the prosecutor will make his request to commit Mr Prenga to trial.' I accept this evidence as that of a decision having been made to try Mr Prenga. In his evidence Prof Maffei states that as of today's date, Mr Prenga is still a suspect, although after the 20 days it is likely the prosecutor will formally charge him and the notice demonstrates that the intention is to formally request his committal for trial. In my assessment of the evidence that is a decision to try. In paragraph 27 of his report he states that 'the decision to prosecute is preceded by the issuing of the formal notice of closing of the investigations that must be drafted by the prosecution office and served on the suspect as per the terms of Article 415bis CPP. This notice makes explicit reference to the prosecution intention to prosecute the suspect'. In my judgment I am satisfied that the first stage is made out on the evidence and the JA have shown so that I am sure that a decision to prosecute Mr Prenga, in the terms of the Act 'to try' Mr Prenga, has been made, and I do not have to move onto stage two. I am satisfied that the JA have shown that the decision to try has been taken."

The appeal:

25. The appellant's application for permission to appeal was refused on the papers. It was renewed at an oral hearing, when I granted permission.
26. The appeal against the DJ's decision had been stayed in order to await the decision of the Divisional Court in Puceviciene. As a result, a significant period of time elapsed between the DJ's decision and the hearing of the appeal. During that period, Ms Cullen provided a further statement, in which she reported that a preliminary hearing had taken place at the court in Florence on 11^th November 2015, and the appellant had on 25^th November 2015 been committed to trial. She further reported that on 22^nd April 2016 the appellant had been served with notice that the first hearing of his trial would take place on 28^th June 2016. A statement was also provided by a police officer DC Dosset, who confirmed the service of that notice on the appellant, and reported that the appellant had replied in terms indicating that he was already aware of the June hearing date. These statements are the subject of an application by the respondent to rely on fresh evidence.
27. I was told that although there had been a hearing of the appellant's case on 28^th June 2016, his trial had not in fact proceeded in his absence, and currently stands adjourned.

The submissions on appeal:

28. On behalf of the appellant, Mr Watkins acknowledged at the outset that the decisions to charge and to try clearly had been made by the time of the hearing of the appeal, and that the respondent would be entitled to issue a new EAW; but he submitted that those were not facts which could assist the respondent, because the court's focus must be on the DJ's decision at the time it was made. He further acknowledged that no formality was needed in relation to either of the two decisions. He submitted nonetheless that the DJ's findings did not support her decision. The evidence before the DJ showed that no application could be made by the prosecutor for committal to trial until the 20-day period specified in the notice of closing of the investigations had elapsed, and there might be very significant developments during that period if, for example, the appellant requested an interview or made submissions. The DJ was therefore wrong to treat the 20-day period as a procedural formality. He further submitted that as at the date of the DJ's decision no decision to try had been taken. On the evidence of Prof Maffei, it was the court - not the prosecutor - which had the "institutional competence" to make that decision; and since at that stage the prosecutor had not even applied for committal to trial, and the court was therefore not yet seized of the case, there had clearly been no judicial decision to try.
29. On behalf of the respondent, Ms Hinton submitted that Prof Maffei's evidence showed that the making of the order for the pre-trial precautionary custody of the appellant involved a finding of strong circumstantial evidence against him. The ordinary (as opposed to the immediate) procedure had been followed in this case, and it was clear that no application for dismissal had been made following the service of the notice of closing of the investigations. Relying on the decision in Motiu, she submitted that the decision to charge had been made in October 2014 when the order for pre-trial precautionary custody was made, thereby recognising the strength of the evidence against the appellant. Relying on the decision in Doci, she further submitted that the decision to seek a committal to trial could be treated as the decision to try, arguing that the prosecutor took a decision to try even though the court thereafter had to make what she described as "a formal decision" to commit for trial. She accepted, however, that a defendant was able to make submissions at a preliminary hearing, and that accordingly the role of the GUP at that hearing was not merely to apply a judicial rubber stamp to the prosecutor's decision. She submitted that the DJ was entitled to reach her decision on the basis of the EAW alone.

Fresh evidence:

30. In the alternative, Ms Hinton submitted that the court should admit as fresh evidence in the appeal the statements of Ms Cullen and DC Dosset to which I have referred at paragraph 26 above. She submitted that the fresh evidence was admissible under the principles stated in Ladd v Marshall [1954] 1 WLR 1489 and in Szombathely City Court v Fenyvesi [2009] EWHC 213 (Admin), [2003] 4 All ER 324. In the latter case, the court at paragraph 4 indicated that there are exceptions to the normal policy, which is that all evidence should be received once only and at the first instance hearing:

"The underlying policy often is that fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so."

The court went on to indicate the importance of considering whether fresh evidence could not with reasonable diligence have been obtained for use at the trial, and whether the fresh evidence would probably have an important influence on the outcome of the case.

31. In support of her alternative argument, Ms Hinton pointed to a passage at paragraph 65 of the judgment in Puceviciene:

"The relevant time for examining whether the s12A bar has been made out, either in relation to the taking of the decision to charge and try or in relation to whether the sole reason why they have not been taken is absence from the territory of the requesting authority, is the time of the District Judge's decision on the EAW; and, subject to the statutory provisions, on appeal should the issue arise there. The natural language of s12A shows that the court should look at the position at the time of the extradition hearing. There could be no sensible reason why the absence of the decisions at the time of the issue of the EAW, sometimes years before the requested person is located, should lead to the discharge of the requested person if the decisions have since been made. There is no reason why the requesting judicial authority, faced with a s12A argument, should not reach any decision which they can reach by the time of the District Judge's decision, and relate any failure at that stage to the situation as they then understand it to be. This is all of a piece with the approach to the other bars to extradition in s11, notably the passage of time bar. It also fits with the commonplace delay arguments raised under Article 8 ECHR."

32. In response to the respondent's alternative argument based on fresh evidence, Mr Watkins submitted that such evidence was not admissible because it could not be relevant to the considerations which had led the DJ to make her decision. He further submitted that the passage cited from Puceviciene did not mean that the court could decide the case on appeal on a completely different basis, relying on evidence of events which had not happened at the time when the DJ made her decision.

Discussion:

33. With all respect to the DJ, the last two sentences in paragraph 18 of her judgment (quoted at paragraph 24 above) suggest some confusion as to the differing burdens and standards of proof in the two stages of the approach explained in Kandola. I do however think it clear from that paragraph that she made her decision on the basis that the appellant failed at the first stage of that approach, so that it was not necessary for her to consider the second stage.
34. I also think it clear that the DJ intended her reference to the decision to try having been taken to include the decision to charge also having been taken. That is plainly implicit, because it is in my view clear from paragraph 18 of her judgment that she proceeded on the basis that it was for the prosecutor to take both decisions, and that the prosecutor's decision to try necessarily implied a simultaneous or antecedent decision to charge.
35. On the evidence which she heard, the DJ was in my view wrong to proceed on the basis that it fell to the prosecutor to make the decision to try. Prof Maffei's evidence as to Italian criminal procedure was not contradicted before the DJ, and she did not explicitly reject it. The only evidence was therefore to the effect that it was the GUP who made the decision to try in a case proceeding under the ordinary procedure. Accordingly, whatever may be said about the possibility of a decision to try being made informally, and/or on a contingent basis, the DJ in my view fell into error in identifying who had the "institutional competence" to make that decision.
36. In focusing on the evidence of Ms Cullen, it seems to me that the DJ failed to appreciate the potential significance of a distinction between the ordinary procedure and the immediate procedure. That distinction would have been clearer if the DJ had had the benefit of the subsequent decision in Doti; Mafiu. In that case, at paragraphs 10 and 11, the court explained an important feature of the immediate procedure in this way:

"The remand in custody, by the order for precautionary measures, includes an accusation, a summary description of the acts and the offence they constitute, all of which satisfies the requirements of a formal charge, and the charge includes the description of the offence given in the precautionary measure. The judge, the GIP, must also check before issuing the precautionary custodial measure that there are no defences. Under the immediate procedure, the criminal case proceeds to trial without service of a notice that the investigation has concluded and without a preliminary hearing.

11. The reason for the difference is that, where a person is subject to a custodial precautionary measure, there is no point in a GIP considering whether the accusation is merely 'sustainable' at trial. This is because the measure would not be applied in the first place unless the GIP had been satisfied at that stage that the defendant was 'highly likely' to be convicted."

37. Under the ordinary procedure, in contrast, the decision to try is made by the GUP, who cannot be the same person as the GIP. The GUP must conduct a preliminary hearing, and (as Ms Hinton acknowledged) would make his or her own decision as to committal to trial and not merely endorse the intention or wish of the prosecutor. Accordingly, where the ordinary procedure applies (as it did in this case), it may not be possible to predict the judicial decision to commit for trial with as much confidence as that prediction can be made when the immediate procedure applies. Indeed, in Doci's case at paragraph 19 the court noted that

"As to the section 12A point, it was agreed before the District Judge that if Mr Doci's case were to proceed under the ordinary procedure there had been neither a decision to charge nor a decision to try because no notice of the conclusion of the investigation had been served, nor had a request been made for a committal to trial. But this was not a case involving the ordinary procedure."

The court went on to say, at paragraph 38, that it did not need to consider whether that concession had rightly been made.

38. In Motiu's case similarly, the court at paragraph 53 made clear the importance of the fact that the immediate procedure would be followed:

"The evidence of Italian procedure which the District Judge had in Mr Doci's case was not available in the case of Mr Motiu. Had it been the decision would have been yet more clearly adverse to him. The order for precautionary measures evidenced or was based on the decision to charge. The case would proceed, as a result of that order, in the immediate procedure. There was no basis at all for supposing that the prosecutor, having applied for the order, would not request the decree, and have it granted in the light of the evidence presented to the GIP and accepted by him for the purpose of the precautionary measures order. Indeed, in view of what is required for such an order to be granted by the GIP on the prosecutor's application, both prosecutor and judge had appraised the evidence as sufficient for conviction to be likely or highly likely. In these circumstances, the order for precautionary measures is also a contingent but not formal decision by the GIP that Mr Motiu should be tried, a decision contingent on his presence in Italy, interview, and a prosecutor's request if necessary, but a decision made by the person who is empowered to make the decision to try."

39. As I have indicated, the only evidence before the DJ on this point was that of Prof Maffei. It may be that there was more to be said on this topic, because it would appear that the only reason the immediate procedure did not apply in this case was that the appellant had declined to return to Italy voluntarily and was therefore not present before the Italian court. There may therefore have been scope for a more detailed analysis of how much weight should be given, under the ordinary procedure, to the assessment made by the GIP, at the precautionary measures stage, of the strength of the evidence against Mr Prenga. After all, where the evidence against a suspect is so strong that he would, if present, be committed to trial under the immediate procedure, it seems somewhat paradoxical that his absence from Italy should greatly reduces the significance of the strength of the case against him. It seems to me therefore that there was scope for a more detailed enquiry into whether the imposition of pre-trial measures might be treated as a contingent decision to try even when the ordinary procedure applies.
40. However, the evidence before the DJ understandably did not go into such an analysis. The important point for present purposes, therefore, is that the evidence before the DJ did not permit her finding that the decision to try fell to be made, and had been made, by the prosecutor. On the evidence as it stood before the DJ, including the expert evidence of Prof Maffei, it seems to me that she was entitled to conclude that the decision to charge had been made (even though no formal request for committal to trial had yet been made), because that was a decision for the prosecutor and it was clear from the evidence as a whole that the prosecutor had decided to pursue the appellant to trial. In my judgment, however, the DJ fell into error in her conclusions that the decision to try fell to be made by the prosecutor and had in fact been made by the prosecutor. I accept Mr Watkins' submission that the evidence of Prof Maffei cannot be ignored, even though it may never have been heard if the decision in Kandola had been handed down before directions were given permitting the appellant to adduce expert evidence before the DJ. The evidence was in fact given, and with respect to the DJ she either misunderstood, or failed to give appropriate weight to, the aspect of it which I have identified above. I therefore accept Mr Watkins' submission that she was wrong to regard the intention of the prosecutor (which clearly was an intention to take the appellant to trial) as the making of a decision which – on the evidence - only the GUP could make.
41. Mr Watkins submits that that is sufficient to conclude this appeal in the appellant's favour, even though he acknowledges that in the event of a successful appeal, the respondent would be entitled to issue a fresh EAW.
42. The route which the DJ took to her decision was taken in error. Had the chronology of relevant events been slightly different, however, and had the DJ been aware of Kandola when giving directions for trial, it seems to me that her route would have been different but her decision would have been the same. This is because I accept Ms Hinton's submission that in the light of Kandola, the DJ would have been entitled to confine her attention to the EAW and to order extradition on that basis alone. Considered in isolation, the EAW showed that the evidence against the appellant had already been assessed (when the order for pre-trial precautionary custody was made) as being so strong that the immediate procedure would be followed if the appellant were speedily returned to Italy, and the DJ would in my view have been entitled (as in Motiu) to regard the order for pre-trial precautionary custody as a contingent decision to try.
43. I turn finally to consider the application to adduce fresh evidence. I have no doubt that it meets the criteria identified in Fenyvesi. There is, of course, no doubt that the proposed fresh evidence could not reasonably have been obtained for the first instance hearing: it relates to events occurring after that hearing. Nor is there any doubt as to its credibility, since there is no challenge to its factual correctness. It is plainly evidence which is capable of affecting the outcome of the appeal. The respondent is not here making an application to admit fresh evidence in support of an appeal: it is seeking to adduce fresh evidence which is strongly supportive of the DJ's decision, and therefore highly relevant to the outcome of the appeal even if not relevant to the DJ's reasoning. Is it, then, evidence which should be admitted, either on the ground that it is just to do so, or on the ground that it would be unjust not to do so?
44. In my judgment, it is. In the circumstances of this case, it would in my view be contrary to the interests of justice to exclude evidence which is available at the time of hearing the appeal, and which provides the clearest possible evidence that the decisions to charge and to try have been taken and that the appellant's trial was due to begin several months ago. That is especially so when I take into account that the appellant's case depends for its success on the accident of timing that he was permitted to adduce expert evidence before Kandola emphasised that such evidence should rarely be permitted. Although the DJ reached her decision by a route which I have found to be flawed, her decision was that there were no reasonable grounds for believing that either the decision to charge or the decision to try had not been made, and those decisions have in fact been made before the hearing of this appeal. I have given careful consideration to Mr Watkins' point, that one of the decisions was only made after the DJ had given her ruling; but it would in my judgment be wrong for me to use my power to allow the appeal when the only effect of doing so would be to introduce further delay into these extradition proceedings. It seems to me that the present circumstances fall within the category envisaged in the passage which I have cited (at paragraph 30 above) from paragraph 65 of Puceviciene: this is a case in which the s12A bar is properly to be examined at the appeal stage.
45. I therefore admit the evidence which, it is accepted, establishes that both the relevant decisions have now been made by the appropriate authorities in Italy.
46. For those reasons I conclude that the decision of the DJ that the appellant's extradition was not barred by s12A was correct, albeit that the route by which she reached it was an impermissible one and one which she would not have adopted if the later decisions of the Divisional Courts had already been made and brought to her attention.
47. This appeal therefore fails and is dismissed.
48. I invite counsel's written submissions as to any consequential orders.