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Neutral Citation Number: [2016] EWHC 1862 (Admin)
Cases No: CO/4714/2015
CO/5620/2015
CO/5459/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 22/07/2016
Before:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE BURNETT
MR JUSTICE OUSELEY
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Between:
| |(1) VANDA PUCEVICIENE |Appellant |
| |- v- | |
| |LITHUANIAN JUDICIAL AUTHORITY |Respondent |
| | | |
| |(2)ANDREAS CONRATH |Respondent |
| |-v- | |
| |GERMAN JUDICIAL AUTHORITY |Appellant |
| | | |
| |(3) FRANTISEK SAVOV |Appellant |
| |-v- | |
| |CZECH JUDICIAL AUTHORITY |Respondent |
| | | |
- - - - - - - - - - - - - - - - - - - - -
John Hardy QC and Amanda Bostock for the Lithuanian and German Judicial Authorities
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
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Approved Judgment
LORD THOMAS OF CWMGIEDD CJ:
This is the judgment of the Court, to which all have contributed.
1. These appeals raise issues concerning the correct construction and application of s.12A of the Extradition Act 2003 (“the Act”). S.12A specifies the necessity for requesting judicial authorities from Category 1 territory EU Member States to have made sufficient progress in a prosecution against an ‘accused’ individual before that person can be extradited from the UK under a European Arrest Warrant (“EAW”). The provision requires the decisions to ‘charge’ and to ‘try’ to have been made, save where the sole reason for the lack of those decisions is the individual’s absence from that jurisdiction. One of the questions which arises in these appeals is whether the failure of the requesting judicial authority to consider whether to use mechanisms short of extradition, in particular mutual legal assistance (“MLA”) to question the accused, is a concurrent reason for a failure to charge or try him, with the consequence that extradition is barred by s.12A of the Act.
2. Three of the requesting authorities in the appeals originally brought were prosecutors; these are recognised as judicial authorities for the purposes of proceedings under EAWs. The fourth requesting authority was a court. They are all represented in the proceedings by the Crown Prosecution Service (“CPS”) in accordance with s.190 of the Act. The appeals were heard at two separate hearings, but, as we indicated, we are giving a single judgment in all the appeals.
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
3. To explain the general issues that arise, it is convenient at the outset to set out the statutory provisions and the relevant case law as it has developed.
(1) The legislative framework
4. It is important to note the following four matters in relation to the European Council Framework Decision of 13 June 2002 (2002/584/JHA).
v) As explained in Cretu v Local Court of Suceava, Romania [2016] 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.
vi) 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 [83]. The parties have proceeded on the assumption that s.12A is consistent with the Framework Decision. We have done the same.
vii) 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…”
viii) 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.
5. Section 12A of the Act (which was inserted by the Anti-social Behaviour, Crime and Policing Act 2014) 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.”
6. S.11 sets out the main bars to extradition, which now include s.12A. In essence, the s.12A bar to extradition only operates if (1) there are reasonable grounds for believing that one or more of the required decisions have not been made, and not made for a reason other than the requested person’s absence from the requesting state, and then (2) the requesting judicial authority fails to establish, to the criminal standard of proof, that in fact both required decisions have been made or that the only reason for both of them not having been made is the requested person’s absence from the requesting state.
7. If none of the bars is made out, then in an accusation warrant case, as these are, s.11(5) requires the judge to proceed under s.21A. S.21A requires the judge to consider the compatibility of extradition with the requested person’s human rights, and also whether extradition would be “disproportionate”. For that latter purpose the court may take account of, and only of, the three specified matters, of which s.21A(3)(c) contains the relevant one here: “the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D”. If the judge considers that extradition would breach D’s human rights or be disproportionate, he must discharge D; otherwise the judge must order extradition.
8. There is a specific provision dealing with MLA and like arrangements: s.21B. This applies where the District Judge, before or during the extradition hearing in relation to an accusation EAW, is informed that a request under subsections (2) or (3) has been made. These are requests either by the requesting judicial authority or by the requested person “that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offences specified in the warrant.”
9. By subsection (4) and following:
“(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)).
…
(9) If—
(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
10. The primary analysis of s.12A and the one invariably cited is in the three linked cases known as Kandola, and more fully as Kandola v Generalstaatwaltschaft, Frankfurt, Germany, Droma v State Prosecutor Nurnberg-Furth, Bavaria, Germany, and Ijaz v Court of Milan [2015] EWHC 619 (Admin), [2015] 1 WLR 5097. The judgment of the court was given by Aikens LJ.
(a) The general approach as set out in Kandola
11. The background to s.12A is helpfully set out in [17]-[25]. The Explanatory Memorandum to the Act which inserted s.12A is quoted to show that the concepts of “decision to charge” and “decision to try” in s.12A need a “cosmopolitan” interpretation, that is to say one which accommodates and reflects the criminal procedures of other countries, rather than those in the UK. Such an interpretation would avoid emplacing significant but unintended barriers to extradition on a speedy basis, while still respecting the purpose of s.12A, to “ensure that the case is sufficiently advanced in the issuing state (that there is a clear intention to bring the person to trial) before extradition can occur so that people do not spend potentially long periods in pre-trial detention following their extradition, whilst the issuing state continues to investigate the case.” Aikens LJ accepted that approach in [27].
12. None of that was controversial before us, though arguments were developed in relation to cases decided on a similar provision in the Irish European Arrest Warrant Act which had been placed before the court in Kandola and to which we will refer at paragraphs 43 and following below.
(b) The first stage of the s.12A inquiry: reasonable grounds for believing
13. When considering whether or not there were “reasonable grounds for believing” that one or more of the relevant decisions had not been made, Aikens LJ pointed out the EAW itself, read as a whole, might be clear that the relevant decisions had been taken. If so the District Judge “should look no further in relation to that point”.
14. If it was unclear, the District Judge was entitled to consider extraneous evidence, but extraneous evidence from the “requested person should not be permitted to throw doubt on a clear statement in the warrant that the two decisions have, in fact, been made.”
15. Aikens LJ specifically discouraged elaborate “expert” evidence from lawyers or others on what under the relevant foreign procedures might constitute a decision to charge and a decision to try, particularly at the stage when “reasonable grounds” were being considered. And at that stage, it was not appropriate for the District Judge to make or direct inquiries of the requesting authority about whether such decisions have been made, or if not, why not; [32].
16. At the stage of asking whether there were reasonable grounds for believing that absence from the territory of the requesting state was not the sole reason why a decision had not been made, evidence from the requested person was required, not elaborate evidence, but more than mere assertion; [33].
(c) The second stage of s.12A inquiry: proof of the taking of the decisions
17. Aikens LJ then considered the nature of the further information which might be sought from the requesting judicial authority in the event that the requested person surmounted the preliminary hurdle.
18. Those questions, set out in [34], were couched in terms which reflected s.12A, namely:
“(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
19. Experience has shown that requesting judicial authorities, confronted with questions which are firmly grounded in domestic concepts of criminal law in England and Wales, have difficulty in answering them by reference to their own procedures in a way which brings clarity. We quite understand why a short but simple series of questions was suggested, but doubt whether questions couched solely in the language of s.12A, the language of our domestic criminal procedure, can achieve the essential purpose of obtaining a clear picture of where the requesting state’s criminal procedures have reached so that the UK court can apply the statutory test to it, applying the cosmopolitan approach to the meaning of “charge” and “try”. Comparing the stages of one with the stages of another simply through a translation may also be apt to mislead. We return to that issue at paragraphs 51-65, but the decisions in each of the three Kandola cases underline the problem.
(e) The role of the CPS in putting information before the court
20. The decision in Droma, as well as later judicial experience, not least in these three appeals, has highlighted another problem. Where questions are asked of the requesting judicial authority by the CPS (acting in its capacity as a representative of the judicial authority under s.190 of the Act), it is highly desirable that the questions be provided to the court and to the requested person, as well as the answers. The questions, and their precise terms, are often essential to understanding the significance of the answers, as is apparent from the appeals of Mrs Puceviciene (see paragraph 112 below) and Mr Conrath (see paragraph 128 below) as well as from the decisions in Ahmed v Germany [2016] EWHC 400 (Admin) and in one of the Kandola cases (Droma) – see paragraph 31 below.
21. When the CPS is acting as a conduit on behalf of the court in transmitting questions, as can happen where the questions have been agreed with the court and those representing the requested person, no question of privilege or confidentiality arises at all.
22. However the position may be different where the CPS asks the questions when acting in its capacity under s.190 of the Act. That section provides that the CPS may give advice in connection with the proceedings. When in the appeal in respect of Mr Savov we asked for the questions that had been asked of the Czech judicial authority (see paragraph 158 below), we were requested to allow the CPS time to consider the issue. In a written submission subsequently made to us, privilege was not relied on. Nonetheless we were told that it was impossible to extract the questions as they were embedded in counsel’s confidential advice and other confidential communications. The CPS would therefore not disclose them, as it was not possible for the CPS to carry out its statutory functions under s.190, save on the basis it was entitled to communicate in confidence.
23. It is clear in our view that when answers to questions are put before the court, the questions and the information supplied to the requesting judicial authority to enable it to understand the questions (as we set out at paragraphs 52-54 below) must also be put before the court. This should generally not give rise to any difficulty. If the questions (and accompanying explanation) are posed by the CPS (or if the judge plays a role in their formulation and the CPS acts a conduit to transmit the questions), the questions and the accompanying explanation can simply be transmitted as a series of questions entirely separate from any advice given by the CPS about the conduct of the proceedings.
24. Confidentiality is plainly necessary to enable the CPS to carry out its statutory function under s.190 of the Act. There will be occasions where the CPS will need to give advice on the conduct of the proceedings; the appeal of Mr Savov is an example of a case where this was necessary in a hard fought case. In such a case, the advice on the conduct of the proceedings must remain confidential whether as a matter of legal professional privilege or as subject to an implied condition of confidence.
25. In the circumstances of Mr Savov’s appeal, where the CPS did not have the guidance we have set out in this judgment and did not pose the questions separately from the advice, we have concluded that it is not necessary for the entire document containing them to be disclosed for the reasons given at paragraphs 193 and following below.
26. There is one further issue to be considered. Article 15 of the Framework Decision contemplates the executing judicial authority making direct requests of the requesting authority, as does the decision of the Grand Chamber of the Luxembourg Court in Aranyosi and Caldararu (see [95] to [98]). It would therefore appear that this was intended as the default method of obtaining further information once proceedings have been commenced. We can see that it would have the advantage that the District Judge could specify in an entirely open and transparent way the request made and provide to both parties any answer given.
27. However, no provision of the Act transposes Article 15; s.202 of the Act which deals with issues relating to evidence does not prescribe who is to obtain it. Furthermore there are issues of a more practical nature which arise. It is essential, as we have said, that the court sees the questions and the background information supplied for the purposes of answering them. As we set out at paragraph 36 below, it would be better if the practical issues were considered by the Criminal Procedure Rule Committee and rules drafted, if the Committee thought it appropriate, taking into account all the practical issues. If rules were thought appropriate we would envisage that the rules would provide for the procedure to be followed. These might apply to all or defined categories of case or provide for a discretion to be given to the judge. The objective should be to see that the court had in an open and transparent manner all the questions asked, together with the accompanying information, and the answers given in a manner consistent with a process based on mutual recognition between judicial authorities.
(f) The role of MLA
28. The second part of the judgment in Kandola with which we deal later (see paragraphs 66 and following below), concerns the role which the court considered that MLA had to play in answering the s.12A questions. We foreshadow, for reasons which we develop, that the introduction of concerns about MLA at this stage is inconsistent with the statutory scheme.
29. In Kandola itself, the Court found that there were reasonable grounds for believing that the sole reason for the lack of relevant decisions was not Kandola’s absence from Germany, but that the necessary examination of Kandola, to conclude the investigative stage of the proceedings and to enable the opening of the main proceedings, had not taken place. Although this normally took place in Germany, it could take place abroad pursuant to a request for MLA. The German Ministry of Justice wrote saying that the prosecutors would use MLA before the issue of a warrant if it were thought practicable, but the prosecutor had not thought it practicable for Kandola since it would alert him to the risk of prosecution and create a flight risk. At [43], Aikens LJ said: “The decision on whether to use MLA must be one for the German prosecutor to take, having considered all relevant circumstances.” The court was satisfied that the use of MLA had been considered and rejected on the reasonable grounds that it would create a flight risk, which there were no reasons to doubt. “…[I]n the absence of cogent evidence of bad faith or something of a similarly compelling nature, this court should accept what is said on that topic by the competent authority.”
30. Ms Droma, however, was successful. Despite the frequent admonitions of this court, that cases should not be cited for comparisons on the facts, advocates have often sought to draw parallels with the facts of this individual case, seeking to achieve that same outcome. It is, we again emphasise, a case on its own facts. There were reasonable grounds for believing that Ms Droma’s absence from Germany was not the sole reason why the relevant decisions had not been taken. It is not clear what evidence the requested person adduced on that topic. Nor is it entirely clear what material the court had, applying what it had earlier held was required, since its only comment was that there had been no attempt to use MLA “despite the fact that, (as the district judge found) Ms Droma is not a flight risk”; [46].
31. The answers to the questions asked of the prosecutor were said to be obscure; there was “no coherent reason” why MLA had not been used. But the court did not have the precise terms of the questions. In Ahmed [40-41], the court had the questions to which there were similarly “obscure” answers. But as a result they gained clarity. In Droma, the third question was clearly answered: “Ms Droma’s absence from the city was the sole reason why it has not yet been possible to indict her…[but after extradition] her immediate indictment is currently to be expected.”[49]. The court held [50] that if extradited, Ms Droma would be immediately examined, charged and a decision to try would immediately follow. Notwithstanding the clarity of the answer to the third question, the court went on to hold that MLA could be used for the examination of Ms Droma, and in “the absence of any coherent explanation of why MLA has not been used,” the requesting judicial authority had not proved to the criminal standard that the sole reason for not making the two decisions was Ms Droma’s absence from Germany. It is not necessary to consider Ijaz in these proceedings.
(3) Procedural Issues
32. We have noted that the Framework Decision is founded upon the premise that surrender under the EAW system should be based on the principle of mutual recognition, that it should be swift and that all issues should be dealt with expeditiously. These appeals illustrate the difficulty in achieving that end, especially when the issues under consideration call for further inquiries to be made of the requesting judicial authority. The multiple hearings in the appeal of Mrs Puceviciene provide a striking example of the way in which a process which Parliament expected to be swift, became anything but. Quite apart from confounding the expectation of a swift resolution of all issues in connection with an EAW, multiple hearings waste the resources of the court, the CPS and the public purse in providing legal aid. There has been a very substantial increase in the volume of extradition requests in recent years which continues to place strain on the resources of the Westminster Magistrates’ Court. The CPS similarly is under strain in devoting resources to dealing with its extradition caseload.
33. In January 2016 the District Judges at Westminster Magistrates’ Court developed a flexible model directions form to use as a basis of case managing extradition hearings. One of its purposes is to enable judges to require those acting for requested persons to identify in advance of the extradition hearing the points being taken and which are said to support discharge. It also contemplates that any areas in respect of which further information might be necessary are also identified at an early stage.
34. That initiative is one we warmly welcome and commend, though the guidance in respect of the model directions must be incorporated within the sections of the Criminal Practice Direction on Extradition as local directions are not permissible.
35. The aim of procedural rules and guidance in extradition must be to make sure, if at all possible, that the extradition hearing is a single hearing at which all issues are resolved. In connection with arguments pursuant to s.12A, those issues similarly should be identified well in advance of the extradition hearing. Should further information be required we would hope that it can be obtained in one exchange of questions and answers, even though the section contemplates the two different stages we have discussed. It is not too difficult to formulate questions even if, to some extent, they turn out to have been superfluous; and better to do so than to generate multiple hearings as a dialogue develops.
36. The rules contained in Crim PR 50 in relation to extradition have greatly facilitated the work of this court, the single judges of the Administrative Court and the District Judges. We will ask the Rules Committee to consider new rules designed to make sure, so far as is consistent with the Act, that:
ix) 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.
x) 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.
xi) 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
37. In giving the judicial authority permission to appeal in the second appeal Cranston J, who has, as judge in charge of the Administrative Court, had to consider a significant number of appeals on this subject, stated:
“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”.
38. As we have said at paragraph 11 above, it was common ground before us that the court had to adopt the cosmopolitan approach required by the decision in In re Ismail [1999] 1 AC 320 when ascertaining whether the relevant decisions had been made. We accept that the section may require a two stage inquiry, but that does not, we have already emphasised, mean more than one substantive hearing. In ascertaining the best approach, with this objective in mind, it is necessary to refer to a number of considerations.
(a) Diversity of procedures in the EU
39. The first consideration is that although many criminal justice systems define criminal offences in a very similar way, the procedure for bringing alleged criminals to justice varies very considerably between states. That is evident from academic work on criminal procedure and work done where preparing EU instruments relating to criminal procedure under the EU’s Stockholm programme.
40. Nonetheless, systems for criminal procedure will have usually (i) a stage where investigation is the focus; (ii) a stage where the prosecutor with conduct of the prosecution in court considers whether to bring a charge, whether to proceed to trial and prepares for trial and (iii) a trial stage. The boundaries between the stages are not necessarily precise and activities generally attributable to one stage can be carried out in the course of another stage. Decisions are often informal.
xii) 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.
xiii) 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.
xiv) 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.
xv) 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.
41. The judge’s decision in Mr Conrath’s appeal illustrates the problem of using what may be a reasonable dictionary translation of words used in German criminal procedure into English words which relate to a specific stage in domestic criminal procedure, without being in a position to compare the two. “Indictment” in relation to “charge” and “try”, as here, is a good example.
42. It is therefore necessary to approach the ascertaining of whether a decision to charge has been made and a decision to try has been made by taking these substantial differences into account.
(b) The assistance given by the cases in the Republic of Ireland
43. A second consideration is the experience in the Republic of Ireland. S.21A of the European Arrest Warrant Act 2003 of the Republic of Ireland introduced into that Act in 2005 provides:
“(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.”
44. In Minister for Justice, Equality and Law Reform v Olsson [2011] IESC 1, [2011] 1 IR 384, the Irish Supreme Court had to consider the application of s.21A to a Swedish national whose extradition to Sweden was sought for offences of robbery. It was clear from the evidence before the court that he would not be prosecuted until the Swedish prosecutors had interviewed him. As a matter of Swedish law the prosecutor was legally incapable of arriving at a final decision to prosecute until the accused had been met, his objections heard and any additional evidence obtained. The purpose was to protect the rights of the accused. O’Donnell J, giving the judgment of the court, after referring to the provision of the Framework Decision and earlier Irish cases, concluded:
“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. …”
45. Although the terms of the Irish Act are significantly different in some respects, there are two aspects of the judgment that support the general approach we have adopted – see paragraph 54 below. First, a decision to try is not required to be final or irrevocable and second that no particular formality is required. The judgment in Olsson has been followed by the Supreme Court of Ireland in subsequent cases, including Minister for Justice, Equality and Law Reform v Bailey [2012] IESC 16 and Attorney General v Pocevicius [2015] IESC 59 and numerous decisions in the High Court where the court has had to examine the evidence as to the stage reached in the procedural system of the Member State in question. Murray J rightly described the task in Bailey as follows:
“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.”
46. A similar sentiment was expressed by McKechnie J in Pocevicius at paragraph 41:
“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.”
47. In Minister for Justice and Equality v Czajkowski [2014] IEHC 649 the Ministry of Justice had set out an explanation of the Irish law and asked three questions:
“(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?”
48. Deidre Murphy J observed at paragraph 8:
“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
49. Third, there are interpretative considerations. Mr Perry QC submitted on behalf of the requested persons he represented in the first and second appeals that what was required was (1) that the authorities had taken a step which could fairly be described as the commencement of the prosecution and (2) that it was likely that a trial would take place within a reasonable time. If the procedure was such that there might or might not be a prosecution or that there might be some unspecified and uncertain time before the trial would take place, then there would be no decision to charge and certainly no decision to try.
50. In determining the best approach to ascertaining whether a decision to charge and a decision to try has been made, we must have regard to:
xvi) The background to the insertion of the provision into the Act as summarised in Kandola – see paragraph 11 above.
xvii) 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.
xviii) 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.
xix) 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.
xx) 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.
xxi) 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
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. It 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. This has been the experience in Ireland (see the observations of Deidre Murphy J at paragraph 48 above) and in England and Wales to date, as further illustrated in the appeal by Mrs Puceviciene (see paragraphs 95-96 below where the explanation given to the requesting judicial authority is set out). We have made our observations at paragraphs 23-27 as to the procedure to be adopted.
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.
(e) The court’s consideration of the evidence
57. The decision for the judge will be a decision on the evidence presented to him. It will be highly fact sensitive.
58. As was made clear in Kandola, the statement of the judicial authority as to the making of the decisions should be accepted by the judge, unless there is clear evidence of bad faith or impropriety. The judge conducting the extradition hearing should therefore not in general question the statement of the judicial authority without such evidence of bad faith or impropriety. In the light of (1) the principle of mutual confidence and recognition and (2) the fact that the procedural system of the state and the decisions made are being explained by a judicial authority in that state, clear evidence is essential if the statement is to be questioned. Assertion will not do.
59. It is to be hoped that if a sufficient explanation along the lines suggested at paragraphs 52-56 is given to the requesting judicial authority, the answer given by the judicial authority will be sufficient in the overwhelming majority of cases. But that may not always be the case.
60. In the appeal by Mr Savov, we were provided with an English translation of the Czech Code of Criminal Procedure as it was thought necessary to explain the information provided by reference to the Code and as Mr Savov had introduced his own evidence on Czech law. The translation was provided without difficulty as it had been published by Wolters Kluwer – see paragraph 143 below.
61. From information provided to us, it appears that some other states have provided translations of their codes; the text of the German code can be found at the website of the European Judicial Network. If such are available, they will inevitably be of assistance to judges in determining disputed questions.
62. Whereas translations of Codes may on occasions be helpful, we envisage that the provision of expert evidence from lawyers should be very rare indeed. The appeal of Mr Savov is an example of an appeal where such evidence was called. It should not have been. It is no part of the function of the extradition court to embark upon an investigation of the legal niceties in the jurisdiction of the requesting judicial authority. It should not seek to resolve apparent conflicts of opinion about the meaning of foreign law. The judicial authority’s description of its own law and procedure should, under the scheme of the Framework Decision, be accepted at face value. The evidence in Mr Savov’s case went into matters that were not matters that should have been explored: see paragraphs 167-168. It did not begin to provide a basis for an allegation of impropriety or bad faith. Our courts rely on the rule that such allegations should not be advanced unless there is a proper basis for making them. There was none in that case. Absent the clearest evidence of impropriety or bad faith, it is not the function of the court to examine the conduct or correctness of the decision of the requesting judicial authority or the prosecutor (see paragraph 213) or whether the prosecutor could have pursued a different method of proceeding (see paragraph 209). These are questions to be determined in the courts of the requesting state after extradition.
63. Finally, it is with regret that we must add that the court will be astute to reject any attempt to use documents obtained by a requested person without lawful authority. We declined to admit such evidence filed on behalf of Mr Savov (for reasons set out at paragraph 196 below).
(f) The time at which the issue is to be judged
64. It is a commonplace for the EAW to be issued at a time when the prosecutor has no address at which the accused can be found, and possibly knows not in which country he is then residing.
65. The relevant time for examining whether the s.12A 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 judicial 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 language of s.12A does not relate the questions to the time of issue of the EAW. The natural language of s.12A 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 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 s.12A 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 s.11, notably the passage of time bar. It also fits with the commonplace delay arguments raised under Article 8 ECHR.
(5) The role of MLA in the working of s.12A
66. We have referred at paragraphs 28-31 to the role of MLA in s.12A and the effect of the decision in Kandola. It is an issue common to the appeals. The effect of the decision in Kandola has been that in deciding whether the sole reason why there has been no decision to charge or try is the requested person’s absence from the territory of the requesting state, the requesting judicial authority has been asked whether or not it has considered the use of MLA; and if it has considered but rejected its use to provide its reasons. Those reasons have then been subjected to judicial scrutiny in this jurisdiction.
67. Decisions of a Division of the High Court are not binding on another. Instead, there is the well-established practice that the High Court and its Divisional Courts will follow its earlier decision unless satisfied that it is clearly wrong: see R v Manchester Coroner ex parte Tal [1985] QB 67.
68. We are satisfied that Kandola is clearly wrong in its consideration of MLA in the context of the questions which arise under s.12A, and should no longer be followed in this respect. We have concluded that the Kandola interpretation is inconsistent with the statutory scheme of the Act, and underlying Framework Decision for the following four reasons which are cumulative.
(a) Inconsistency with the wording of s.12A
69. First, it is inconsistent with the wording of s.12A itself. The general questions to be addressed are set out. They are whether the competent authorities (which may or may not be the requesting judicial authority) have taken the relevant decisions, and if not, what is the reason. The section seeks the reason why a decision to charge or a decision to try has not been taken by the competent authorities: why has the material decision not been taken? It is not concerned with an analysis of other ways in which the next step in the requesting judicial authority’s domestic legal system might have been taken. As we shall see, the Act makes specific provision for that.
70. If the requesting judicial authority’s reason for not taking the decision or decisions, given on behalf of a court or prosecutor, is that the requested person is absent from the territory of the requesting state, that statement concludes the questions and answers. The Act does not require the judge at the extradition hearing to go behind the answer and explore whether it is a good or bad reason. Indeed, s.12A must envisage, in the light of the mutual confidence and recognition between judicial authorities, that the answer would be final.
71. Parliament has not identified one of the questions in s.12A as being why MLA has not been used. It is not part of the intended operation of s.12A that the judge at the extradition hearing should ask why absence from the territory has prevented the decisions being taken, or whether some other solution could have been considered, or should have been adopted which might have avoided absence from the territory preventing the decisions being made. The language of Kandola risks judges at the extradition hearing forming views on what prosecutors or judges in other jurisdictions did or did not consider and forming views on what they should, but have not, done to further the prosecution of the case under their procedures. That too would be inconsistent with the confidence and recognition which underpins the EAW system. It would be incompatible with ordinary notions of judicial comity; and the court here would be ill-placed to make an informed judgment on laws and procedures which are likely to be very different. It is the authorities in the requesting state who know the case, the nature of the evidence, their own procedures and law, and thus what course from their domestic point of view should be followed. We cannot envisage that Parliament intended to set in train a process which is both unprincipled and impractical.
72. There may be, in what we would anticipate would be very rare cases, circumstances in which mutual trust and confidence has broken down, or where there is cogent evidence of bad faith or of abuse. In those circumstances, it may well be appropriate to go behind the answers and seek more information. Spanish Judicial Authority v Arranz [2015] EWHC 2305 (Admin) provides a rare example of the problems, there described as “judicial engineering” which justify that different approach, and what is says should be read in the context of the very special circumstances of that unusual case. No general rule was being suggested, as has already been made clear in Kemp v Court of 1st Instance No.4 of Orihuela, Alicante, Spain [2016] EWHC 69 (Admin), [38].
(b) The purpose of s.12A
73. Second, the purpose of s.12A is not furthered by its interpretation in Kandola. The mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody whilst the alleged crime continued to be the subject of lengthy investigation without decision to charge and try having been made. It was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction. The application of the provisions of s.12A secures that the requesting judicial authority will be in a position to get on immediately with the next step in its prosecution process as soon as the requested person is surrendered. The purpose of s.12A is served by confining it to the issues it actually raises.
74. The effect of the questions relating to MLA has in fact been to delay extradition in very many cases and to no valuable point. It has been something of a “spanner in the works” of speedy extradition, usually of foreign nationals to their own country. Parliament was aware that the Act implemented the Framework Decision into the laws of the United Kingdom, that an EAW “shall be dealt with and executed as a matter of urgency” (article 17.1) and in contested cases the Framework Decision envisages a maximum period of 60 days between arrest and decision to surrender (article 17.3). S.12A should receive an interpretation which does not place in jeopardy any hope of achieving the time limit envisaged in the Framework Decision.
(c) The lack of explicit provision
75. Third, if Parliament had intended that, unless MLA had been considered and rejected for sound reasons, extradition should not take place it would have legislated for that explicitly. That is particularly so because many countries subject to the EAW system have criminal procedures which include a stage early on where the accused is formally involved in the investigation, or include a formal examination before the decision to charge or try.
(d) The explicit provision in s.21B
76. Fourth, Parliament did legislate in a way which enables MLA to be used in connection with an EAW, not in s.12A, but in s.21B. That is a strong indication that MLA should be considered only through that mechanism, absent the sort of breakdown in trust in answers to questions and requests which occurred in Arranz. The provisions operate quite differently. S.12A provides a bar to extradition; it is one of the bars in s.11; therefore, failure in relation to the consideration of MLA, if relevant under s.12A, would bar extradition.
77. S. 21B operates if “at any time before or during the extradition hearing” the judicial authority or the requested person requests either a temporary transfer to the requesting state or that arrangements be made for him to speak to the authorities of the requesting state. If such a request is made there may follow an adjournment of up to seven days to enable the other party to respond to the request. If consent is forthcoming, the judge gives appropriate directions to enable the transfer or communication. If consent is refused, there is no question of compelling the unwilling party to co-operate, no sanction, no investigation of the reasons and no question of the requested person being discharged if it is the requesting state which does not consent to his request.
78. Thus when Parliament did make provision for either party to request arrangements enabling them to speak, with consents to be sought after an adjournment granted for that purpose, it did not create a bar. That is entirely consistent with our view, given that MLA requires the co-operation of all parties to be effective, and is far from being the simple process which appears often to have been assumed, as Kemp, at [41-42], adumbrates. It would be extraordinary to elevate a failure to contemplate the use of MLA to the status of a bar to extradition under s.12A, when the Act itself creates an entirely consensual process for its use.
79. S.21A also arises for consideration. The structure of the Act requires the judge to consider whether any of the bars operate (see s.12 to s.19A) and only if they do not to consider s.21A. This section provides the means through which the rights of a requested person guaranteed by the European Convention on Human Rights may be protected (s.21A(1)(a)). It also requires the judge to discharge the requested person if his extradition would be disproportionate in the limited sense described by the section (s.21A(1)(b) and (3)). One of the factors which the court must consider is the possibility of “less coercive measures” (s.21A(3)(c)) being taken by the requesting state. If MLA were relevant to s.12A, MLA could only be considered as a less coercive measure under s.21A if the failure to use MLA had not barred extradition under s.12A.
80. S.21A was considered in Miraszewski and others v District Court in Torun, Poland and another [2014] EWHC 4261 (Admin). The European Council Handbook, addressing concerns about the disproportionate use of the EAW by some Member States, and notably Poland, suggests that the “less coercive instruments” of MLA should be used where possible; [22]-[23]. At [40] Pitchford LJ, with whom Collins J agreed, thought that this might cover MLA for pre-trial proceedings. It is difficult to square that with the statutory effect of s.21A which is that, if the less coercive measure of MLA should have been used, extradition is disproportionate, barred, and the requested person must be discharged. The requested person cannot be compelled to participate in the interview which the requesting judicial authority may thereafter seek under MLA but obviously without any EAW to back it up. If the requested person refuses to participate, or the interview leaves the requesting judicial authority wanting to pursue extradition, it would then have to issue a further EAW, to which this time round the use of MLA as a less coercive measure would be no answer. That is a very convoluted way to achieve what could be achieved much more simply under s.21B.
81. It is only under s.21B that the decision on the EAW can be delayed while the MLA process takes place. S.21B is therefore the route to the use of MLA to advance the criminal process through interview before extradition so as to reduce pre-trial delay after extradition, or perhaps as a means of changing the mind of the requesting judicial authority on the decision which has already been made to charge and try. It is likely that s.21A(3)(c) was intended, as the Handbook implies, to cover cases where the supposed “accused” was no more than wanted for questioning as a mere suspect. Although that implies that the EAW itself ought to have been found invalid if the requested person was not even an “accused”, the need for that word, and others to be given a “cosmopolitan” interpretation, is spelt out in Ali v Public Prosecutor of Bavaria [2014] EWHC 3881 (Admin), [14-21], and may affect what could be achieved with its use.
II: THE SPECIFIC APPEALS
82. We now turn to the facts of the individual appeals. Our decisions are decisions on the facts and, in contrast to the general guidance we have given, are likely to be of little (if any) assistance in subsequent cases.
(1) VANDA PUCEVICIENE
83. We set out the detail of the extraordinarily protracted proceedings in this case as it is illustrative of the very serious problems that have arisen in relation to s.12A, particularly in the light of the experience in applying the decision in Kandola. There were a total of six hearings and five sets of questions and answers dealing with the s.12A and s.21B points. The time period between arrest and extradition decision was almost 9 months.
(a) The issue of the EAW
84. The appellant, Vanda Puceviciene (VP) is a Lithuanian national who has lived in the UK since 2009. She is wanted for prosecution by the respondent judicial authority, the Lithuanian prosecuting authorities, in relation to allegations of 39 offences of fraud, said to have taken place between 2008 and 2009 when she was employed at a Lithuanian bank. The EAW was issued on 30 November 2011 by a Deputy Prosecutor in the Prosecutor General’s Office. It was certified by the Serious Organised Crime Agency (SOCA) on 23 September 2013.
85. The domestic warrant was specified as:
“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)”
86. Exhaustive details of the 39 offences for which she is wanted were then set out. Under Box (f) of the EAW (which allows the requesting judicial authority to give details of “other circumstances relevant to the case”), it was stated that the clock stops for limitation purposes if the requested person disappears during the pre-trial investigation and added:
“[VP] has been absconding criminal prosecution (announced wanted on 2011-10-26) …”
87. VP was arrested on the EAW on 5 January 2015 and appeared at Westminster Magistrates’ Court the following day and was released on conditional bail. The extradition hearing was listed for 8 April 2015.
(b) The 12 March 2015 questions and the response on 26 March 2015
88. The only point then taken on behalf of VP was the length of time that had elapsed since the date of the alleged offence. Therefore prior to the hearing the CPS posed 13 questions in order for the Lithuanian judicial authority “to assist [the CPS] in making representations to the English Court” on that issue, save for the last two which concerned other discrete matters raised by VP. None of the questions were shown to the judge at the subsequent hearings as the CPS at that hearing considered that they were privileged. At our request, they were provided to us.
89. The questions asked in relation to the lapse of time point but which became relevant to the s.12A issue were as set out below. On 26 March 2015 the judicial authority replied to each of the 13 questions. The questions and answers which have some relevance for the purposes of this appeal were:
“(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
90. It is not clear when the s.12A challenge was raised. However it was certainly before District Judge McPhee at the hearing on 8 April 2015, as is made clear by the only judgment he gave, that dated 28 September 2015.
91. As explained in that judgment, he determined the first-stage of the s.12A test as set out in Kandola at the hearing on 8 April 2015 without any further information from the Lithuanian authorities:
“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 [28]-[30] 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.”
92. Having decided that point in the VP’s favour, the judge considered and decided the s.12A (1)(a)(ii) point in her favour as well. As he explained:
“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”.
93. The judge adjourned the matter part-heard:
“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…”.
94. However, it appears that it was also re-listed for another judge on 12 May 2015.
(d) The questions asked on 13 April 2015 and response on 17 April
95. Following the hearing on 8 April 2015 the CPS wrote to the Lithuanian judicial authority on 13 April 2015. The letter gave the following brief explanation and asked the Kandola questions:
“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?”
96. The judicial authority responded promptly by letter of 17 April 2015:
“(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
97. At that hearing on 12 May 2015 VP obtained a 7-day adjournment on the basis of her making a request under s.21B(3) for arrangements to be made for her to speak to the prosecuting authority in Lithuania.
(f) The CPS letter of 14 May 2015 and response on 15 May 2015
98. On 14 May 2015, the CPS wrote again to the judicial authority:
“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”.
99. The Lithuanian judicial authority sent an urgent response the following day (15 May 2015):
“… 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
100. The adjourned hearing went ahead on 18 May 2015 before a different judge. That judge was given the 15 May 2015 response and adjourned the hearing for more information.
(h) The CPS letter of 29 May 2015 and response on 15 June 2015
101. This second adjournment prompted the CPS to write once again to the Lithuanian judicial authority, by letter dated 29 May 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.”
102. The judicial authority responded on 5 June 2015, stating:
“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
103. The next hearing was on 8 June 2015 before District Judge McPhee. At that hearing, as he explained in his judgment of 28 September 2015, he found that the response of 5 June 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”.
104. A further hearing took place on 12 August 2015. The response from the judicial authority dated 15 May 2015 was put before District Judge McPhee for the first time. In his judgment, he stated:
“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
105. Prior to the final hearing, the CPS wrote to the judicial authority on 2 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.”
106. The judicial authority responded on 18 September 2015:
“… 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
107. At the final hearing which took place on 28 September 2015, the judge was presented with the 18 September 2015 response. He determined in the judgment he handed down that same day:
“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.”
108. He concluded that the judicial authority had proved the matters required under s.12A(1)(b)(ii) to a criminal standard and therefore s.12A could not afford a bar to extradition.
(l) VP’s submission on appeal
109. The substance of the argument on appeal was that the judge had been right initially to conclude that this was a suitable case for MLA. VP was of good character and not a fugitive in the classic sense. She had repaid some of the funds allegedly misappropriated. She had reason to believe that if she repaid the outstanding amount the criminal prosecution would be discontinued. Initially both parties had consented to MLA, but the requesting judicial authority withdrew its consent, without explanation as to why the resort to MLA would serve no legitimate purpose. As the requesting judicial authority had initially consented to MLA arrangements, the judge could not properly have been sure that the appellant’s absence from Lithuania was the sole reason for the absence of a prosecution decision, or that this was a case in which a trial would in fact take place.
(m) Our conclusion
110. In the light of our general conclusions in respect of the role of MLA set out at paragraphs 66-81 above, her appeal must fail. The judge proceeded down the course which the decision in Kandola required, but, as we have explained, we are satisfied that it was wrong to require him to do so. He should not have embarked on that inquiry at all.
111. However, our decision does not rest solely on that basis. There are two other grounds.
112. First, bearing in mind that there had to be an evidential basis for reasonable grounds to be established for the belief that decisions had not been made, and what Aikens LJ said in Kandola about the evidence required for that at [31]–[32] summarised at paragraphs 13-15 above, we consider that the judge ought not to have found that there were reasonable grounds for that belief when he made that decision on 8 April 2015 (paragraphs 90-93). The state of the evidence was clear:
xxii) 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.
xxiii) 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.
xxiv) 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.
xxv) 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.
xxvi) 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.
xxvii) 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.
113. Second, if, contrary to our view, the District Judge was entitled to embark on the second stage of the inquiry, the position in relation to the reason why the relevant decisions had not been taken was clear to the criminal standard from the Lithuanian prosecutor’s response of 17 April 2015, essentially repeated in the 18 September 2015 letter.
2. ANDREAS CONRATH
114. We again set out the history of this matter at length for reasons similar to those we have set out in the appeal of VP. There was one extradition hearing (the second-stage of the s.12A test being determined on the papers) and two sets of questions with respective responses. The time between arrest and extradition decision was five and a half months.
(a) The EAW
115. The respondent Andreas Conrath (AC) has lived and worked in the UK since July 2011. His surrender is requested by German judicial authorities in relation to offences of fraud and theft said to have taken place between 2009 and 2011. The EAW was issued by the appellant judicial authority, the Wuppertal Department of Public Prosecutions on 28 April 2015 and was certified by the National Crime Agency (NCA) on 27 May 2015.
116. The EAW contained the required statement that AC’s surrender was sought for the purposes of conducting a criminal prosecution, that the authority requesting the domestic arrest warrant was the Wuppertal Local Court (Amtsgericht) and that it was issued on 24 May 2012. Details of the 19 offences in respect of which AC is described as “the suspect” are given. His “form of participation” was given as “offender”.
117. AC was arrested on 1 June 2015 and attended Westminster Magistrates’ Court the following day. He was released on conditional bail for an extradition hearing on 29 September 2015.
b) The questions on 18 September 2015 and the response of 23 September 2015
118. Prior to the extradition hearing the CPS wrote to the judicial authority on 18 September 2015, confirming the arrest and stating that AC was contesting his extradition on the basis of the length of time that had elapsed since the date of the offences. The CPS asked 8 questions. The questions asked in relation to the lapse in time issue which were subsequently relied on by AC as relevant to the s.12A issue and the responses on 23 September 2015 (as translated) were:
“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
119. At the first hearing before Senior District Judge Riddle on 29 September 2015, the evidence of AC was heard. It was summarised as follows:
“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”.
120. The judge then considered the further information provided on 23 September 2015 and decided that it raised questions under s.12A about whether a decision to charge and try had been taken. After acknowledging that the statement in the EAW that the person was sought “for the purposes of conducting a criminal prosecution” was sufficient though not conclusive under s.12A, he referred to the further information of 23 September 2015:
“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
121. By letter dated 7 October 2015, counsel instructed by the CPS wrote to the judicial authority to ask “the four Kandola questions”. These were answered on 20 October 2015. The first three questions were:
“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
122. The second-stage of the s.12A process was determined on written submissions filed on 2 November 2015. In his judgment given on 13 November 2015, after setting out the responses to the four Kandola questions, the judge continued:
“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.”
123. Consequently, the judge moved on to consider s.12A(1)(b)(ii), stating:
“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.”
124. The judge went on to make additional observations about the general application of s.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”.”
125. The judge went on to find that AC’s absence from Germany was not the sole reason why the decisions had not been taken. The further reason was in fact that the prosecutor had not known of his address.
“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
126. The essence of the submission made to us by the judicial authority was that the judge, although acknowledging a cosmopolitan approach was needed to the interpretation of the terms in s.12A, had not in fact applied that approach. The evidence before him clearly showed that AC would be indicted as and when he was returned. The decision to indict was procedurally as strong, if not stronger, than a decision to charge. However, the judge fell into error in that he confused the decision to charge with the fact of being charged. He should not have found there were reasonable grounds for believing no decision had been made to charge or try AC. Even if he had been right to make that decision, he should have been satisfied to the criminal standard that the decisions had been taken. He was also wrong in his conclusion on sole reason.
(g) Our conclusion on the decision to charge and try
127. We have referred at paragraph 37 to Cranston J’s observation when giving permission to appeal. Indeed the decision in this case might have been designed to bring forcefully to the attention of the Divisional Court the difficulties which Kandola had created. The Senior District Judge was clearly concerned that German judicial authorities might find it impossible to make the statements seemingly required by s.12A that the relevant decisions had been taken by the time of the extradition hearing.
128. In our view the judge was incorrect in finding that there were reasonable grounds for believing that the relevant decision had not been taken.
xxviii) 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.
xxix) 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.
xxx) 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.
xxxi) 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.
xxxii) 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.
xxxiii) 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.
xxxiv) As we have made clear at paragraph 54, there is no need for a formal decision.
(f) Our conclusion on the sole reason
129. We are also unable to agree with the judge’s finding that the sole reason for absence was that AC’s address was not known and not his absence from Germany.
130. We reiterate that the focus should not have been on the fact of indictment, but on the decision to “indict” if the judge was correct in using that term as the equivalent to “charge”. If the judge had focused on the decision, the legal inhibition of the unknown address would have fallen away.
131. Second, the decision provides an illustration of going behind the reason given by the prosecutor, which clearly was that AC’s absence from Germany was the reason there has been no indictment.
132. Third, the only justification for the judge doing so, and considering the effect of the unknown address is that he focused on what was known “at the time the decision was made”. It is not clear what decision the judge was referring to, but it appears that it was the decision to issue the EAW. It cannot have been at the time of the extradition hearing, by which time AC’s whereabouts were well known to the prosecutor. As we have explained at paragraph 65, the relevant time is the time of the extradition hearing.
133. For all these reasons, the appeal by the judicial authority must be allowed.
(3) FRANTISEK SAVOV
134. We have again sought to set out in detail what happened in the third appeal as it is illustrative of the protracted nature extradition proceedings can take through the use of s.12A by a person with a very deep pocket who is determined to frustrate his extradition by every device possible.
(i) Introduction
(a) The EAW
135. Frantisek Savov (FS), a Czech national, is accused, along with 10 other co-defendants, of tax evasion/fraud and money laundering between 2009 and at least 2012. The sums involved amount to many millions of pounds. He is said to be the organiser. The criminal enquiry into the allegations began in February 2012. A prosecution against nine (later ten) co-defendants began on 13 September 2013. The prosecution of FS was commenced by way of a resolution under s.160 of the Czech Code, issued on 22 May 2014.
136. FS was initially treated as a fugitive by the Czech judicial authorities as his whereabouts were unknown; it was their belief that he was evading the criminal proceedings. Under Czech procedure a fugitive can be tried in absence. As we set out in more detail below, the prosecutor explained that it was her view that it would be unsatisfactory to proceed to trial in his absence given the number of co-defendants and the interlinked nature of the alleged criminality. His address was later ascertained and he was no longer treated as a fugitive.
137. The Regional Court for Prague 5 issued an initial EAW on 9 June 2014. FS was arrested on 27 August 2014 under that EAW. The initial EAW was later replaced by a new EAW dated 30 October 2014 and certified on 13 November 2014. FS was again arrested on 24 November 2014 under the second EAW and produced before Westminster Magistrates’ Court.
(b) The initial proceedings before the Senior District Judge: bad faith
138. FS initially raised many issues before the Senior District Judge based around his contention that the extradition proceedings, and the underlying domestic proceedings, were brought in bad faith, were politically motivated and were an abuse of the processes of the courts. These were primarily raised as bars under s.13 of the 2003 Act. No challenge under s.12A was made. He produced opinion evidence from Czech lawyers and others, on Czech politics and law, to support his argument that the prosecutor was manipulating proceedings, was unduly influenced by a named policeman, that a Czech Finance Minister was influencing proceedings, that the police and judiciary were corrupt and open to bribery, cases were artificially created and inadequately controlled and that confidential information was leaked. In the end, FS decided not to pursue these defences.
139. This was, however, not before the prosecutor, Dr Bicanova, had responded to them in a 33 page letter dated 16 March 2015, supported by her own experts. This letter (which we consider at paragraphs 150 and following) was to play a central part in the argument which FS pursued in relation to s.12A, notwithstanding that the letter relied on was not directed to that issue.
(c) The reliance on s.12A and the decision of the Senior District Judge on 2 July 2015
140. The extradition hearing took place before Senior District Judge Riddle where the sole issue related to s.12A. He handed down his judgment on 2 July 2015.
141. It had been agreed by the parties that there were reasonable grounds for believing that no decision to try had been made. It followed on the terms of s.12A that the judicial authority had to prove that a decision to charge and a decision to try had been made. The judge decided not to go behind that agreement, despite what he was to say about the evidence. Although FS argued that there had been neither a decision to charge nor a decision to try, the central issue, as the judge rightly concluded for the reasons we have given at paragraph 50.vi), was whether there had been a decision to try FS.
142. The judge was sure that there had been a decision to charge and a decision to try FS. He also concluded, in case it was necessary to do so, that if there had been no such decisions, the sole reason was FS’s absence from the Czech Republic. His extradition was ordered.
(ii) The evidence before the Senior District Judge
(a) An outline of Czech criminal procedure.
143. As the evidence before the judge related in part to the way in which criminals are prosecuted in the Czech Republic, it is necessary to outline the main provisions of the Code of Criminal Procedure. The fundamental details of Czech criminal procedure were not in dispute. It can be broadly divided into three separate stages – verification, investigation and trial.
144. In the “verification” stage the authorities establish whether there are grounds to commence a criminal investigation. By s.158, in the Chapter headed “Procedure Prior to the Commencement of the Criminal Prosecution”, it is the task of the police to carry out all necessary investigations, and to “clarify and verify the facts reasonably suggesting” that a crime has been committed. The police are obliged, within certain time limits, to review the facts suggesting that the offence was committed and to explain to the public prosecutor why the process of “verification” has not been completed within those time limits, what remains to be done, and how long that will take; s159. The prosecutor can alter the list of what remains to be done or set a different period in which it is to be completed. If further time is then required, the police can provide a reasoned justification for a further extension in the same way, in relation to which the prosecutor has the same powers as before.
145. The “investigation stage” is the stage where the prosecuting authorities undertake a pre-trial investigation to establish whether there is sufficient evidence to take the matter to trial. It commences in the manner set out in the last Chapter of Part 2 of the Code; its first subdivision is entitled “The Initiation of Criminal Prosecution”. S.160 states that, once the “verification” process of the facts suggests that the offence being investigated had been committed and it was “adequately justified” by whom it had been committed, the police authority “shall immediately decide to initiate the criminal prosecution of this person as an accused….” The “resolution statement on the initiation of the prosecution” must contain a description of what the accused person is alleged to have done, state the offence, identify the accused, and the “justification” for the resolution must indicate precisely the facts that show the merits of the prosecution. This resolution must be served on the accused no later than his first interview, and on the public prosecutor and defence counsel.
146. The investigation procedure in s.164 requires the police to carry out certain investigations, if they have not done so already, including the questioning of witnesses. The Code imposes no requirement for the accused to be questioned before the petition for the indictment is submitted to the prosecutor, but the accused is entitled to present his defence before that happens; this presentation includes being interviewed, and the police must examine carefully the evidence he submits. The accused cannot however be compelled to answer questions. The police, by s.164(4), have to question the witnesses again “upon the petition of the accused” and he and defence counsel are allowed to participate. The accused and defence counsel have the right to examine the police file, and request that further investigations are carried out, all before the file and petition for indictment can be lodged with the prosecutor.
147. Once the police are satisfied that the investigation is complete, “and its results sufficient for an indictment”, the accused and defence counsel can examine the file and submit petitions for further investigation to be carried out, which the police may accept or reject. S.166(3) then provides that after the completion of the investigation, the police “shall submit the file with the petition for the indictment”, including their explanation for refusing the petition for further investigations, to the public prosecutor.
148. Up to this stage, the public prosecutor has had the role of supervising the investigation by the police in a variety of ways, including requesting the police for the file for the purposes of review, and granting extensions of time for the investigation. But by s.175(1), it is the public prosecutor alone who is entitled “(a) to decide on the termination… of the criminal prosecution” or “(b) to lodge an indictment”, or “(g) to petition a request for an accused from abroad”. S.176 provides for the indictment in these terms:
“(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...”
149. The defence may make submissions and the public prosecutor will then consider what decision to make. If they decide the evidence is sufficient, they will lodge an indictment under s.176 and the ‘trial’ stage formally begins. Part 3 of the Code deals with “Proceedings Before the Court”. The basic provision in s.180 is that the criminal prosecution takes place only upon indictment submitted to the court by the public prosecutor.
(b) The letter of 16 March 2015
150. The public prosecutor’s letter of 16 March 2015 was, as we have said at paragraph 139, not directed to s.12A but directed at answering the serious allegations made about the way in which the prosecution was being conducted.
151. The letter stated that, in the s.160 resolution concerning proceedings against FS in May 2014, the police had described convincingly their reasons for reasonably suspecting that he had participated in the criminal activity alleged; inquiries were being pursued into his exact involvement, and the facts detected thus far supported those reasonable suspicions. Evidence of the involvement of FS had also been given by Maler, one of his co-accused, and indirectly by others.
152. The letter described in some detail why FS had been treated as a fugitive at the time of the resolution in May 2014. He had been out of contact since September 2013, communicating only via his lawyers, and not accepting service of documents. He was not at his permanent address, and he could not be located. He would not turn up at the appointed time and place for questioning, apologising for not doing so. Mail remained undelivered. The media, in which this case was widely reported, repeatedly reported that he had been informed that a search for him had been launched. He knew unequivocally of the ongoing criminal proceedings and the search for him.
153. The letter was relied on by FS to make points in respect of the s.12A issue. One aspect referred to on a number of occasions by FS was the length of time the proceedings were taking, which had led to repeated claims on behalf of FS that there had been inadequate control over the police and public prosecutor. FS had taken proceedings in the Constitutional Court to challenge the resolution of May 2014 to start criminal proceedings against him. This challenge was rejected in February 2015 as “manifestly unfounded”. It was submitted on behalf of FS that this decision had confirmed the appropriateness of proceeding against him as a fugitive.
154. Although FS had contended that the institution of proceedings against him as a fugitive was an abuse of process, and that the prosecution was unjustified anyway, the thrust of the decision was that the Constitutional Court would intervene only exceptionally before a case was otherwise concluded. It had done so in one “quite extraordinary” prosecution where there was clear evidence of arbitrary decision-making which violated constitutional protections. The procedure leading to the contested decisions, including the decision to proceed against FS as a fugitive, was constitutional. The court did not decide that FS had to be treated as a fugitive, let alone so treated for all time, so that the prosecutor could not change her mind, or change it if circumstances changed. The fact that one decision was constitutional, contrary to FS’s then submissions, did not mean that the alternative method of proceeding would be unconstitutional.
155. FS also relied on what the prosecutor had said in explaining the time taken: the length of the criminal proceedings
“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
156. FS had obtained a confidential internal review of the state of the criminal prosecution involving FS and ten others dated 4 March 2015. It was put before the judge attached to a skeleton argument with its provenance stated as “an unnamed official in the Czech Republic with lawful access” to the document. We infer that there was no authority to pass it to FS’s legal team or to FS. As we set out at paragraphs 176 to 189, FS obtained further confidential documents and sought to put them before us on the appeal.
157. The March review was undertaken shortly before the letter of 16 March 2015. It listed the tasks undertaken since the previous 6 monthly review, and those which were then planned. This included questioning Maler, a number of witnesses, requests for the identification of further bank accounts, and a handwriting examination of certain signatures. The reasons for not finishing the investigation within six months were explained: the case concerned sophisticated criminal activity with a significant number of accused; more people were now implicated and some procedural stages had to be repeated; some witnesses had been obstructive; claims of alleged legal confidentiality had slowed down the handing over of data; data from a server, recently secured, had yet to be examined; legal assistance requests to the USA and the Dominican Republic would take some time to be answered; it was not known when this extradition process from the UK would finish. It could not be said when the investigations would be completed, but it could not reasonably be expected within the next six months. The prosecutor had extended the period for the examination by a further six months. She added:
“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
158. The prosecutor (as distinct from the Czech court which was the requesting judicial authority) was asked by the CPS to provide further information in relation to the s.12A issue and did so in a letter dated 28 May 2015. Our request for provision of the questions was declined as we have explained at paragraph 22 above.
159. The response addressed two issues: - the course of the proceedings and whether there had been a decision to charge and to try.
xxxv) 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;
xxxvi) 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;
xxxvii) 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;
xxxviii) 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’;
xxxix) Subject to the facts that might arise from the interrogation of FS, it was the intent of the Czech authorities to submit an indictment;
xl) 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.
160. She explained why FS was no longer being prosecuted as a fugitive, and his extradition was sought instead:
“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.”
161. However as the prosecutor had received “information from British authorities about his location” in the UK, the Code required that, if the justification for proceeding against someone as a fugitive ceased, he should be proceeded against in the normal way.
162. She again explained why MLA had been rejected. FS’s approach to the criminal proceedings made it impossible to expect that “his interrogation as an accused could have been achieved by way of a request for [MLA].” Such a request required the consent of the individual to be effective, and a person who deliberately evaded proceedings is necessarily someone who refuses to consent to the use of MLA.
163. She also explained the role of the interrogation of the accused in Czech criminal procedure:
“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).”
164. There then followed passages (upon which the judge was to rely for his conclusion that the prosecutor had made the decision to try FS):
“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.”
165. She then dealt with the reasons as to why there had been no indictment:
“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”.
166. She reiterated that the Czech authorities involved in the criminal proceedings were unequivocally of the opinion that FS was continuing to evade them, and that there was a serious flight risk which made MLA, which required the voluntary co-operation of the defendant, “inappropriate and unacceptable”. Interrogation over a video-link could not help in view of the millions of files and the need for FS to be in the same room as the interrogator; nor could the files practicably be brought to the UK for that purpose. She continued:
“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
167. In addition to this evidence provided on behalf of the judicial authority, evidence from lawyers was adduced on behalf of FS. One witness, for example, took the prosecutor to task for not justifying objectively the views expressed towards the end of her letter of 28 May 2015.
168. The evidence was described by the judge:
“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.
169. As we have said at paragraph 141, the judge rightly identified the central issue as being whether the Czech prosecuting authorities had made a decision to try. He had heard evidence as to the adequacy of the file and the correctness of what the prosecutor had done. Those matters were not in point. The question was not whether the prosecutor had made the correct decisions, but whether she had made a decision to try. That depended on whether the statement that she intended to issue a s.176 indictment amounted to a decision to try. He was sure that the decision to charge FS was the s.160 resolution of 22 May 2014. No indictment had yet been lodged under s.175. As FS was no longer being treated by the public prosecutor as a fugitive for the purposes of s.302 and proceedings in his absence, no indictment could be lodged before he had been interrogated. Interrogation only took place if the accused wished it, but the opportunity had to be given. At his request, witnesses might have to be re-interviewed, with the participation of the accused and his defence counsel.
170. The judge recognised that there were a number of matters to be concluded before the indictment could be lodged, including the opportunity for FS to present evidence, for the ten co-defendants and their lawyers to examine the whole file and to produce further evidence. All of this would take “considerable further time.” It could be two years before the indictment was lodged, of which a maximum of one year could be spent in pre-trial custody.
171. S.12A did not require that extradition only take place when the case was ready for trial. Some delay was inevitable in listing a long, complicated multi-handed trial. It was an aim of s.12A that lengthy pre-trial detention be avoided, but the wording of s.12A did not relate directly to whether the case was ready for trial.
172. Even though an indictment was not imminent that did not mean that no decision to try had been taken. A formal process was not needed; nor was it necessary that the investigation be completed; nor was it necessary that the decision was irrevocable.
“… 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.”
173. He rejected the evidence of FS’s Czech lawyers. They were either not expert or objective. They could not know better than the prosecutor whether
“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
174. The final issue was whether FS’s absence was the sole reason why no such decision had been taken, if in fact it had not been taken. This turned first on the fact that he had originally been treated as a fugitive, and proceedings could have been continued against him to trial in his absence on that basis. He was no longer being treated as a fugitive. As his whereabouts were known, he had had reverted to a “normal legal status”. The judge accepted the prosecutor’s reasons as to why interrogation of FS was:
“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.“
175. He rejected the evidence of FS’s witnesses for the same reasons as before. He then concluded with these observations, which are correct and important:
“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
176. We were invited for the purpose of the appeal to consider further evidence on behalf of FS, and in reply from Dr Bicanova. We did so de bene esse. We set the evidence out as it amply demonstrates what can happen if the process under s.12A is not conducted in accordance with the guidance we have given.
177. The evidence of FS comprised internal prosecution documents somehow obtained by FS from the Prosecutor’s Office. Neither Mr Jarusek, FS’s Czech lawyer, nor Mr Garner, his English solicitor, explain how they came by any of them. It is the inevitable inference in those circumstances that FS has a contact in the Public Prosecutor’s Office, who is prepared for illicit motives or reward to supply such material, describing the acts and plans of the police and prosecutor, to assist him to frustrate the investigation, the prosecution and his extradition.
178. The prosecutor’s reply points out that in the “broader context” of FS’s defence, an individual had recently been convicted of attempting to bribe a computer expert, working to decipher computer files in the case, to tamper with the results so that there would be no evidence from his examination. No direct relationship had been proved between FS and the criminal, but as she said: “Cui bono?” She used this “context” to reject the contentions of FS’s lawyers that the new evidence showed her to have misrepresented the position to the Senior District Judge, and to accuse them of misrepresentation instead. Later her reply drew attention to how Mr Jarusek “fully uses all means offered by the legal order of the Czech Republic to continuously contest my steps taken in the criminal case without succeeding with any of his filings so far”, but she did not intend to discuss with him the details of the collection of the evidence or her evaluation of it “at this stage and in this place”.
(b) The documents produced
179. The important documents were:
xli) 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.
xlii) 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
180. Mr Garner suggested in his witness statement that the November review showed that the investigation was still far from complete; that was relevant to whether any decision to try had been taken. Mr Jarusek, who is familiar with the case file, delved deeply into the review in his witness statement of December 2015, and elaborated all the work which was yet to be done in relation to each aspect listed in the review, before the evidence necessary for the completion of the investigation could be fully obtained. He explained how he saw the problems which the prosecutor had faced and continued to face in getting it all done. Proceedings would not be completed “within the next few months”. He pointed out that the co-defendant Maler had withdrawn his statement which was key evidence against FS. On the basis of his evidence, he expressed surprise that the prosecutor had told the Senior District Judge that “basically in just a few days” after extradition FS would be questioned, the parties familiarised with the file and charges brought, when she knew of the substantial evidential material still to be gathered. He added that if the material was so large as it was already said to be, before several more months of investigatory material was added, the process of familiarisation of just one million files, at a minute a file, 24 hours a day, would take 694 days.
181. Mr Garner raised two other points as to why the evidence in the record of supervision was new and potentially decisive: the use of MLA and the treatment of FS as a fugitive. Mr Garner, in what we regret to describe as a submission masquerading as evidence, said that it was “difficult to reconcile” what was said in the record of supervision about the request for MLA in November 2014 with what the prosecutor had previously told the Senior District Judge, namely that a decision not to seek MLA had been made by May 2015. There had been an adjournment during the extradition hearing at which point the Senior District Judge had offered the court space for an interrogation of FS. It was not thought to be practicable and instructions needed to be taken, but there had been no indication on behalf of the prosecutor that a request had already been made. The Senior District Judge had explicitly accepted the prosecutor’s statement as to why MLA was not appropriate. Mr Jarusek’s “evidence” was that the prosecutor must have known in November 2014 of the scale of the documentation and the practical problems in conducting an interrogation in England, yet she had asked the UK to assist this by MLA. Her later reasons as to why MLA was not practicable were therefore “fabricated” to avoid the MLA problem which, not having been used to interrogate FS when it could have been, barred his extradition under s.12A.
182. Mr Garner, turning to the position of FS as a fugitive, argued in his “evidence” that what the record of supervision showed about the prosecutor’s knowledge of FS’s whereabouts supported FS’s concern that the decision now to proceed against him as a non-fugitive was simply a device to reduce the difficulties which s.12A had created for them. The Senior District Judge had accepted that FS had been properly considered a fugitive until recently, and that, although the prosecutor was aware that FS was in the UK, his exact place of residence here had remained unknown. Mr Garner argued that the prosecutor’s letters of March and May 2015 at least gave the impression that FS had ceased to be a fugitive because his location had come to light between the two letters, whereas the record of supervision suggested that the prosecutor already had his address back in November 2014 because she was requesting service on him of the s.160 resolution. His son’s birth in London in January 2014 had been registered and a copy of the birth certificate sent to the Czech authorities. The record of birth and public sources suggested that FS was in the UK, with the child born in London, according to the prosecutor’s petition for the EAW, in June 2014. Mr Garner said that she must have obtained that information from the relevant Register which would have shown FS’s UK address. She knew of his location in the UK well before May 2015 since FS had been arrested by appointment in August 2014, bailed with a residence condition with a specific address in September 2014, and a bail form, containing the address, was sent by the Czech police to the Prague Court. In November 2014, the first EAW was withdrawn and FS was re-arrested on the new one, and again bailed with a residence condition. Between his first arrest and May 2015, there were a number of bail hearings at which a residence condition was imposed. Czech TV had reported on the case in February 2015 with footage showing the details of where he lived and had to report. We pause to note at this stage that it is very unlikely that the Senior District Judge would have been unaware of the fact that FS had been on bail with a residence condition for a long time.
183. Mr Jarusek complained that FS had not been told of the change in the procedure under which he was being prosecuted, and that the first official record of the change appeared in the criminal file only the day after the prosecutor’s letter of 28 May 2015 to the Senior District Judge. He provided the basis for much of what Mr Garner had said. The “alleged discovery” of FS’s address in May 2015 was not regarded by him as a justification for a change in the manner in which his client was being prosecuted, nor was it the reason; the truth was that it suited the prosecutor to change the way she was proceeding against FS because of s.12A.
(d) The evidence of the prosecutor
184. The prosecutor in her reply of 22 January 2016 said that the MLA request sent in December 2014 “involved only primary questioning…comprising only six questions and aiming to obtain basic information and opinion from the accused [FS].” She listed the six questions. She described them, on the face of it reasonably, as very generally formulated for initial and informative questioning:
“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.”
185. She was aware that he would have to consent to this questioning. What she then said has to be understood in the context of proceedings against a fugitive who would be represented at the trial. She continued:
“… 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.”
186. The prosecutor had received no “official information” from the UK authorities about his address in the UK; she assumed they had it for the purposes of dealing with the EAW; if she had known the address, she would have put it in the request for MLA. Her request to the Prague court had pointed out that extradition proceedings were under way, so she was obviously assuming that the UK had the address of FS which she did not. She reiterated her explanation for proceeding against FS as a fugitive given in her letters of March and May 2015. After his arrest in the UK, it was only a matter of time before proceedings against him as a fugitive would change, but the change was “linked to the receipt of official information” of his address in the UK. Grounds for treating him as a fugitive ceased, for s.306a purposes, only when she received that “official information”. As soon as she received it, she drew up a record of that fact and filed it in the criminal file; there was no obligation to inform FS’s lawyers. None of the previous information, birth, bail conditions or media footage, had amounted to grounds for ceasing to treat FS as a fugitive.
187. The prosecutor denied any contradiction between what she said in her letter of 28 May 2015 about the problems with MLA and her making the MLA request, for the reasons she had given. She pointed to limitations on MLA as a means of conducting the interrogation envisaged by the Czech Code. The questioning would be done by the UK authorities, not by the prosecutor who was familiar with the detail of the case. The prosecutor could only ask questions through the UK authorities and with their consent. It would be practically impossible to ensure that the evidence against the accused had been put to him sufficiently because of its volume, the need for the UK authorities to understand it and to respond to answers, and for it to be translated for them to ask the questions. This meant that even if the six questions had been put to FS, it would still have been impossible to finish the investigation without further questioning, quite apart from the subsequent need for the defence to have the opportunity to familiarise themselves with the file. This was all part of her thinking behind saying in the letter of 28 May 2015 that MLA remained inappropriate and unacceptable. Moreover, there had been no answer by the UK to the request, and it was unlikely that a request enlarged in scope would have met with greater or more rapid success.
188. She reiterated that she was prepared to submit an indictment after FS had been interrogated following extradition and the defendants had familiarised themselves with the file. It was prosecuting attorneys alone who were entitled “to assess if the results of investigation justify sufficiently bringing any accused individual before court i.e. the submission of indictment”. The refusal of Maler to testify meant that she would have to do without his evidence, but she said that she still had “enough other proofs of evidence” to submit an indictment against FS. She did not mean by saying, in her letter of May 2015, that she was prepared to submit an indictment after FS had been interrogated and familiarisation was complete, that the investigation would thereupon have finished. It was possible to adduce further evidence after submission of the indictment, including evidence obtained through MLA. She meant that the evidentiary position made it possible to submit an indictment. There was still an obligation to pursue relevant facts; the evidentiary position was not frozen by the submission of an indictment. Time spent waiting for extradition was used to gather further evidence, and the list of steps, with no date by which they were to be done, reflected that wait of unknown duration. None of the steps listed to be undertaken, except for FS’s surrender to the Czech Republic, hindered the submission of an indictment against him. She repeated that, after the extradition and interrogation of FS and defence familiarisation with the file, “I am prepared to submit an indictment.” She was not going to discuss the scope and quality of the evidence against him.
(e) The further statement of FS’ lawyer
189. After the close of the hearing, a fourth statement was received from Mr Jarusek. It provided the evidential basis for a submission made at the hearing of the appeal, that the prosecutor’s change in the manner of proceeding against FS from fugitive to non-fugitive meant that the s.160 resolution and other documents had to have been served personally on FS, pursuant to s.306(a)(1) of the Code. This, he said, had not happened. The prosecutor’s failure to comply with that procedural requirement showed that the change was simply a device for avoiding problems with s.12A. There was no reply from the prosecutor, but we draw no adverse inference from that.
(f) The submissions on the appeal
190. The conclusion of the judge that a decision to charge FS had been made was not challenged before us. The argument before us focused on what the judge had identified as the central question - whether there had been a decision to try, though there were also submissions on the new evidence and the issue as to MLA. We have explained at paragraph 50.vi) why the real focus of arguments on s.12A should be on whether there has been a decision to try.
191. The essence of the submissions made on behalf of FS was that the decision to try FS had not been taken, the prosecutor had acted in bad faith and was lying and MLA could be pursued. The judge had been wrongly dismissive of the evidence of FS’s lawyers.
192. The judicial authority submissions in essence were that the evidence showed a decision to try had been made, there had been no misconduct on the part of the prosecutor and the prosecutor was entitled to proceed as she had done. The judge had been correct in his assessment of FS’s lawyers.
(g) The provision of the questions asked of the judicial authority
193. As we have set out at paragraph 158, the judge was not provided with the questions to which the letters from the prosecutor were the response. We asked for the questions. After giving the CPS time to consider the issue, we were told they would not provide the questions as they were embedded in confidential advice (see paragraph 22 above).
194. In response, it was submitted on behalf of FS that confidentiality did not enable the judicial authority to refuse to disclose the questions. The only grounds on which it could rely were privilege and Public Interest Immunity. Privilege was not claimed as there was no relationship that could give rise to such a claim and no issue of PII was raised. Confidentiality did not provide any basis to withhold the questions.
195. We have not had the benefit of full argument on this issue. In circumstances where the two letters (unlike the position in the other appeals) are understandable on their own and where the request was made by the court, we are satisfied that we can reach our decision without insisting on our request to see them.
(v) Our conclusions
(a) The admission of the further evidence and the allegation of misconduct by the prosecutor
196. We deal first with the admissibility of the further evidence submitted by FS. There is plainly a strong public interest in declining to admit these confidential documents which have been illicitly obtained from the prosecution authorities of a friendly foreign state. We decline to do so; it is not in the interests of justice. It follows that the evidence of FS’s lawyers in support cannot be admitted.
197. However, if it had been in the interests of justice to admit the evidence, we would also have admitted the prosecutor’s reply. Assuming that we had admitted all this evidence, our conclusions are as follows.
198. We are satisfied beyond doubt that FS is trying to use every procedure available to him here and in the Czech Republic and every other means to resist extradition and prosecution. Those means include the benefit he has sought to derive from documents to which he has access only as a result of misconduct helpful to him in the prosecutor’s office.
199. We accept as truthful explanations in the prosecutor’s statement about what happened over the MLA request and the change from treating FS as a fugitive. In our view, they reflected reasonable approaches to the issues, and made clear sense in a multi-handed trial. They provide no basis whatsoever which would even begin to permit an argument properly to be raised in this court in relation to engineering and manipulation.
200. When FS could only be proceeded against as a fugitive as his address was unknown, that is the procedure which had to be followed. After his whereabouts had become known so that extradition could proceed, the position would obviously change. So the fact of change could not give rise to any concern. The delay and the timing did not undermine the fundamental sense of what the prosecutor did. We accept what she says about the timing of the change, and her view that she needed official confirmation of his address.
201. But even if the timing of the decision was affected by awareness of how the change could advance her answer to the issues raised by s.12A, we cannot see that could provide any basis for it properly to be argued that that was an objectionable manipulation of the process. Rather it is an obvious step, by way of tactical response to a problem. After all, it was entirely proper for the prosecutor to want him extradited for trial. She was not obliged to maintain his position as a fugitive for such advantage as it might give him in resisting extradition as an accused, so that he would be extradited as a convicted person entitled to a retrial later and separately from his co-defendants.
202. Mr Jarusek’s post-hearing evidence does not provide the remotest basis for advancing a contrary view. Mr Jarusek’s contention does not come from any particular wording of the Code explicitly containing the obligation he asserts. It is only the first sentence of s.306a(1) which could be relevant:
“If the grounds for the proceedings against a fugitive have expired, the criminal proceedings shall continue pursuant to the general provisions.”
203. This does not require a return to the first steps, but rather a continuation from the stage reached. Mr Jarusek was developing a submission about how the Code should be applied in these circumstances, in view of the arguments he deployed to support his position, rather than giving independent expert evidence. He gave no evidence of any court decision to support his view, nor of any practice commonly adopted by prosecutors so as to prove a generally accepted meaning of the Code in these circumstances. It was not as though the defendant’s lawyer has not been served. But even if the prosecutor ought to have taken the step of serving FS, and had not done so, it would not provide any proper basis for an allegation that her omission, in relation to the change in FS’s position, was done in bad faith or amounted to misconduct. The highest it could be put was that she had omitted a procedural step with whatever consequences, unspecified by Mr Jarusek, that might have in Czech law.
(b) A decision to try has been made
204. We have explained at paragraph 54 that a formal decision to try is not necessary.
xliii) 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.
xliv) That does not prevent the decision to try for the purposes of s.12A being made earlier.
xlv) 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.
xlvi) 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.
205. Upon that basis we examine whether there has been a decision to try here.
xlvii) 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.
xlviii) The letter of 28 May 2015 setting out further information is quite clear.
c) 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.”
d) 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.
xlix) 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.
l) 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.
li) 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.
lii) 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.
liii) 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.
206. We reject the various points which were raised on behalf of FS. We have already rejected his charge that the prosecutor was lying. FS pointed to the volume of work yet to be done and submitted that she cannot therefore yet have made the decision. If that goes to whether a decision to try for the purposes of s.12A can ever be made before a petition is submitted by the police, it is irrelevant. Such a decision for s.12A purposes does not require any particular stage in the criminal procedures of the requesting state to have been reached. If it goes to whether such a decision can have been taken here, the prosecutor has explained the position in relation to such work, how it has proceeded during the wait for his extradition and how it can proceed after the submission of the petition and indictment. It does not give us cause to doubt whether the decision has been taken.
(c) MLA and the sole reason issue
207. We have set out at paragraphs 66-81 our conclusions on the relationship between MLA and s.12A. Furthermore we accept what the prosecutor has said about the thinking behind the request for MLA and its limitations. Even were the consideration of MLA relevant to the s.12A decision, it is clear that the prosecutor has considered it, rejected it, explained why, and to the extent that it is ever appropriate for this Court or a District Judge to comment on those reasons, they are ones she is entitled to rely on.
208. It is perfectly clear that, if we were to conclude that no decision to try had been taken, it could only be because the prosecutor is unable to take it while FS is absent from the Czech Republic, because the prosecutor considers that he needs to be interrogated there. She has taken that view on reasonable grounds, and that MLA will not be productive. It is not for this Court to force the prosecutor to conduct the prosecution in a way she judges slow, inefficient, cumbersome or destructive of the prosecutorial process.
209. The s.12A question is: why has the relevant decision-maker not taken the decision to try? That is sufficiently answered by the relevant decision-maker saying that it is only because of the requested person’s absence, and it is a sufficient reason that the decision-maker prefers to proceed to trial in his presence. It is no answer for the accused person to say that the prosecutor could proceed to trial in his absence, thus allowing the accused and a fugitive accused to dictate the course of criminal proceedings against them.
210. We do not accept the submissions on behalf of FS that earlier decisions post Kandola on the role of MLA in s.12A reinforce its relevance. All either assumed that Kandola was right or expressed reservations about it. They offered no independent reasoned support for it.
211. The statutory question is not: can you carry out an interview by MLA in the UK? The statutory question focuses on absence as the sole reason for the prosecutor not having taken the decision to try, and it focuses on the prosecutor’s reason: what is the reason or reasons why the prosecutor has not taken the decision to try? If, contrary to our conclusion, there was no such decision, the only reason why the prosecutor has not taken it is that she has concluded that she needs to interview FS first, for which purpose she has concluded that she requires his presence in the Czech Republic. It is nothing to the point that some means might be found to conduct some sort of interview with FS in the UK, however unsatisfactory that might be, or even that some prosecutors might in fact adopt that course. The statutory questions are not intended to open up a debate before the judge at the extradition hearing about the prosecutor’s justification for his conclusion; it simply asks why the decision has not been taken.
212. FS submitted that, because the Czech Republic countenanced trial in absentia, his absence could not be the sole reason why no decision to try had been taken. Thus approached, s.12A would bar the extradition of fugitive and non-fugitive accused alike where the requesting state permitted trial in absentia. The trial would take place upon extradition as a convicted person by way of a retrial, if such a right existed. It would be an error of some magnitude to construe any part of the Act so that absence from the state seeking extradition, whether as a fugitive or not, barred extradition for trial where the requesting state permitted trials in the absence of the accused.
The evidence of foreign lawyers
213. The introduction of evidence from foreign lawyers illustrates how s.12A can be misapplied, and can turn the extradition process into a detailed examination of foreign procedure, of the strength of the case against the requested person, and of the way in which proceedings have been conducted by the prosecutor. It enables the requested person to attempt to explain how they should be conducted quite differently, and what should be done to complete the investigation before the requested person is extradited. S.12A arguments have developed far beyond what Parliament can have intended. The judge was entirely correct in what he said about these proceedings - see paragraph 175 above. He was right not to be tempted down the path of judging the performance of the prosecutor and deciding how the prosecutor should perform her task in testing whether the evidence satisfied s.12A, and was right to treat the evidence called on behalf of FS as briefly as he did, for the reasons which he gave. The evidence shows what a determined requested person, especially with deep pockets, can do to delay or to foil extradition, in the attempted misapplication of s.12A.
Conclusion
214. For those reasons, we are satisfied that the relevant decisions have been taken and that the appeal should be dismissed.
Overall Conclusion
215. The appeal of Puceviciene is dismissed. The prosecutor’s appeal in Conrath is allowed. The appeal of Savov is dismissed.
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