QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| BLEDAR PRENGA
|- and -
|COURT OF FLORENCE, ITALY
Hannah Hinton (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 26th October 2016
Crown Copyright ©
Mr Justice Holroyde :
The ground of appeal:
"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; andb) She failed to consider at all whether a decision to charge had been taken."
"(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) andii) the person's absence from the category 1 territory is not the sole reason for that failure, andb) 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, orii) 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."
"(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:
"(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."
"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."
"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."
"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:
"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  EWHC 2543 (Admin) at paragraph 26.
"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 3rd June 2015. A copy was served on the appellant's Italian lawyers, in Italy, on 25th June. Thus the 20-day period to which the notice referred expired, at latest, on 14th July 2015.
The evidence before the DJ:
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:
"On assessing all the evidence in my judgment the evidence of Sally Cullen dated 3rd 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 25th 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 submissions on appeal:
"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.
"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."
"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."
"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.
"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."