Case No. CO/4767/2016 
Neutral Citation Number: [2017] EWHC 897 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 6 April 2017
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 
DA SILVA
Appellant

v 

GERMAN JUDICIAL AUTHORITY
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Ms D Barden (instructed by McMillan Williams) appeared on behalf of the Appellant 
Mr R Evans (instructed by CPS Extradition Unit) appeared on behalf of the Respondent 
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J U D G M E N T (Approved)
1.	MR JUSTICE COLLINS:  
2.	This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Lucie which is dated 14 September 2016 whereby he ordered that the Appellant be extradited to Germany in order to stand trial for an offence committed there.  
3.	The issue which was before the District Judge and which has been raised before me is whether there were proper grounds for deciding that the provisions of section 12A and indeed section 2 of the Extradition Act were met on the basis that the warrant did not establish that there had been the necessary decision that the Appellant be charged or tried for the offence and that the situation had not got beyond the investigation stage.  
4.	The offence in question was essentially one of fraud.  I do not think it is necessary for the purposes of this judgment to go into any further detail.  Suffice it to say that the amount in question was substantial, being in the order of 30,000 Euros.  
5.	The warrant in question was in the usual form in that it stated at its outset that it had been issued by a competent judicial authority which requested that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution.  That goes on "or executing a custodial sentence or detention order".  
6.	That is, as Ms Barden submits, common to all arrest warrants, but it is not something that can be overlooked because it recognises that the purpose behind an arrest warrant is that there should be a criminal prosecution conducted.  Thus it must be as a general proposition that a warrant cannot be issued unless it is for that purpose and it is not sufficient and it has never been regarded as sufficient that a warrant can be issued properly simply to enable the extradition of an individual in order to further an investigation.  
7.	However, as our law has made clear in the cases which have sought to construe the terms of section 12A, it is necessary to adopt what has been described as a cosmopolitan approach bearing in mind that continental systems vary and we cannot impose our system and what our system requires upon other countries.  
8.	In this case, the Appellant was arrested under this warrant at the beginning of August 2016.  In fact, he is a Portuguese national.  He was arrested at Heathrow when he was travelling to Portugal.  He appeared before the District Judge on 9 August.  There was an application made.  The matter was then adjourned for a hearing which took place on 6 September.  Ms Barden, who appeared on behalf of the Appellant as she has appeared on his behalf before me, applied for an adjournment in order to obtain and serve a statement from a German lawyer who was to say that the relevant decisions, that is the decisions to charge or to try, had not been made.  That was opposed.  
9.	The application was refused by the District Judge on the grounds that there was no material before the court other than a mere assertion that the German lawyer had said those things.  Secondly, the material was unlikely to assist the requested person given the current state of the law, that is that expert evidence was rarely to be required in these cases.  Thirdly, the solicitors had had plenty of time to arrange for the taking and service of the statement.  
10.	The first ground relied on, that is to say that it amounted to no more than a mere assertion, was not, in my view, a satisfactory ground since there was no reason not to trust what had been said by counsel on behalf of the Appellant, who would not have said what she had said unless she had had some material to support that assertion.  However, the other grounds, plenty of time and the fact that an adjournment would clearly have been required and further the view that it was not a case where expert evidence would be helpful, were prima facie a proper grounds for refusing.  
11.	The question I have to ask is whether now that evidence should be admitted before me.  Mr Evans submits that the District Judge's decision cannot be said to have been wrong and that it is now too late for that evidence to be put before and considered by me.  
12.	I think it is unfortunate, albeit it would have involved a short delay, that the District Judge did not permit the adjournment, provided it had been a short adjournment, although I do understand the pressure on the Westminster court and the difficulty of slotting in cases before that court.  
13.	However, as it happens, the evidence in the form of a letter from the German lawyer was put before the judge after the hearing had concluded, but before she gave her judgment.  However, she refused to admit it because leave was not sought to submit the late evidence, the other side would have had to have had time to consider, there would have been further delay and the evidential weight was limited.  She looked at it and took the view that there was nothing specific to the requested person's case which the opinion of the German lawyer would help.  
14.	Again, I think that she adopted too narrow a view of the report because he makes clear that he had been able to review the case file relating to the Appellant in Frankfurt.  
15.	In all the circumstances, I am prepared to consider that report because, as will become apparent, I do not think in the state of the law as it now is laid down by the authorities on section 12A, it assists the Appellant.  
16.	Section 12A was introduced, it was said, in order to ensure that British citizens were not kept for lengthy periods in custody awaiting trial after they had been extradited.  It was necessary, it was believed, to ensure that the stage had indeed been reached when a prosecution was to take place.  
17.	The wording of section 12A is, of course, central to the decision which must be reached.  What it provides, as inserted by the Anti‑social Behaviour, Crime and Policing Act 2014, is as follows:
"(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." 
18.	There are thus two stages.  First, the onus is on the requested person to show and persuade the appropriate judge that there are reasonable grounds for believing that the relevant decision has not been made.  If the judge reaches that conclusion, then the requesting judicial authority must establish and prove either that there had been made a decision to charge and a decision to try or where neither or both of those decisions had been made, the person's absence from the territory was the sole reason for that failure.  
19.	That is the approach.  Obviously, what is needed is a construction of that section as to what is meant by a decision to try or a decision to charge.  There have been two main cases which have sought to make a sensible construction of the requirements of section 12A.  The first is a decision of the Divisional Court consisting of Aikens LJ and Nicol J in Kandola v Judicial Authority in Frankfurt and Others [2015] 1 WLR 5097.  
20.	That pointed out the two stage process that was required, which derives from the Act, and essentially reached, as it were, two conclusions.  It referred to the German procedure, which I shall come to in more detail, but that procedure made it clear that what was required was an opportunity for an individual who was thought to be guilty of an offence to have the opportunity to give his side and to give such explanations as he wished to give before a final decision was made.  
21.	There was a letter before the court in Kandola which explained the stages in the German criminal procedure.  It is convenient to refer to those, albeit they are contained to an extent in the letter from the German lawyer which has been produced on the Appellant's behalf.  It is referred to in paragraph 38 of Kandola:
"The letter of 4 December 2014 explains the stages in the German criminal procedure, which are, broadly: (i) an investigation stage leading to what is called by the judicial authority a "bill of indictment", (ii) the opening of the "main proceedings" and (iii) their continuation to completion of the trial by the competent court.  An examination of the accused is a pre‑requisite for closing the investigation proceedings and then the submission of a bill of indictment to the competent court.  In the case of an accused person not being present in Germany, the public prosecution office can and will make use of the European machinery for Mutual Legal Assistance in criminal matters to ask the authorities in the state where the accused resides to conduct an examination of him.  If an examination cannot take place at all then the investigation proceedings have to be "provisionally determined", ie. terminated.  The decision of the public prosecution office to apply for the opening of the main proceedings does not require the accused to be present in Germany.  However, the main proceedings cannot be conducted against an absent person." 
Then it quotes from the procedure:
"The court may thus provisionally terminate the proceedings before deciding on the opening of the main proceedings if the absence of the indicted accused prevents the holding of the main hearing for a considerable time." 
22.	That may have been the situation when the matter was put to the court in Kandola, but it is apparent from information obtained in this case that the German authority will not necessarily decide that it is appropriate to make use of MLA.  That, of course, can be material in considering, in accordance with section 21B of the 2003 Act, whether there are measures such as examination of an accused person outside Germany which can be made use of.  I will come to the decision in relation to that in due course.  
23.	There were concerns raised about the effect of some of what was said in Kandola and so a further Divisional Court consisting of the Lord Chief Justice, Burnet LJ and Ouseley J was convened to decide in three cases the material issues in relation to section 12A.  The case in question is (I shall call it) Savov and Others v Judicial Authorities of Lithuania, Germany and the Czech Republic [2016] EWHC 1862 (Admin), not yet, I think, reported although I imagine it is likely to be.  
24.	That case, in a lengthy and detailed decision, laid down the correct construction and application of section 12A.  It is to be noted that what was said to be the purpose behind 12A was to ensure that the stage had been reached when there was no likelihood of there being substantial delays in the prosecution being carried out in the requesting state.  
25.	It is to be noted that Sir Scott Baker, having been asked to consider whether amendments to the Extradition Act were required, decided and advised that they were not necessary.  Nonetheless, Parliament was persuaded by the Government to enact section 12A.  
26.	It must be clear that what section 12A does not do is to give on its face proper regard to the different systems that apply in continental states.  However, it is to be noted that the Republic of Ireland had decided to enact provisions which were somewhat similar to those in section 12A.  The Irish provisions in their section 21A of the European Arrest Warrant Act 2003 provided: 
"(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." 
27.	In Ireland in a case called Minister for Justice, Equality and Law Reform v Olsson [2011] 1 IR 384, the Supreme Court decided essentially that the meaning of a decision in section 21A did not require that that was a final or an irrevocable decision and the fact that a further decision might be made eventually not to proceed would not mean the statute had not been complied with once the relevant intention to do so existed at the time the warrant was issued.  
28.	That approach was an approach which the Divisional Court in Savov decided was not only of assistance but applicable to the construction of our legislation because it recognised that any other construction, that is to say that the requirement that there was a final and irrevocable decision, would mean that in many cases it was not possible to give effect to an accusation warrant.  
29.	I now must have a look to see whether the German lawyer's information is of any real assistance in the circumstances of this case.  Before doing so, I should just state what is contained in the warrant because that, of course, is the starting point.  If the warrant itself makes clear that the relevant stage has been reached, then it is not only unnecessary but inappropriate to seek to go any further.  The warrant will speak for itself.  
30.	I have already referred to the introduction, which is consistent with the decision having been made.  What is said in the warrant is that the domestic warrant is what is described as a warrant of arrest for pre‑trial custody and an arrest for pre‑trial custody is on its face indicative that there was at the very least a provisional decision that there should be a trial.  
31.	The details of the circumstances of the offence are set out.  It was allegedly committed at the beginning of October 2012.  It is said that he had pictures of cars up for sale, one in question being a BMW.  He then entered into a contract with the witness, who was looking for a car for a friend.  A purchase price of 30,000 Euros was agreed on.  It goes on: 
"The suspect hereby untruthfully suggested to be able and willing to fulfil this contract.  He arranged an appointment with the witness on 10 October 2012 at the pretended company head office.  In fact, however, he was just intending to receive an advance payment of the purchase price and to use this for himself.  The witness, trusting that the suspect will arrange as agreed upon for the transfer of the possession and property of the vehicle on 10 October 2012, lead [his friend] to transfer the purchase price on 3 October to the account indicated by the suspect.  The amount was credited on 9 October 2012.  The money was then withdrawn and the car was not delivered." 
32.	On those facts, it is clear beyond any question that prima facie an offence of obtaining by deception, or fraud, was established.  It seems to me that on the facts it is quite impossible to conclude that the situation was other than that there was at the very least a provisional or what, as we shall see from the decision in Savov, is described as an informal decision to prosecute.  
33.	However, the German system requires that the accused person or potentially accused person must be given the opportunity of putting his side and being examined.  That is set out in section 163a of the Procedure Code, to which the German lawyer Mr Wallasch refers in his letter.  It reads:
"(1) The accused shall be examined prior to conclusion of the investigations, unless the proceedings result in termination.  Section 58a(1) [et cetera] apply.  In simple matters it shall be sufficient to give him an opportunity to respond in writing.  
 (2) If the accused applies for evidence to be taken in his defence, such evidence shall be taken if it is of importance."
Then it goes on with various provisions which I do not think it is necessary to read.  
34.	The first sentence of 163a(1), which I repeat is "the accused shall be examined prior to the conclusion of the investigations, unless the proceedings result in termination", must, as it seems to me, on any sensible construction mean that the examination must take place before the investigations are complete unless there is nothing to go on.  That is to say the decision is reached that there be no further prosecution because if there is to be a prosecution, then it is necessary that the person who will or may be prosecuted is given the opportunity of putting, as I say, his side.  If he gives an explanation, it may be that it is decided that a prosecution will not proceed.  But as I say, as the court decided in Savov the fact that there may not in due course be a prosecution if the explanation given is accepted does not mean that section 21A is not complied with.  
35.	Reference is made in the lawyer's letter to section 169a of the German criminal procedure code, which provides:
"Conclusion of investigation
If the public prosecution office is considering preferment of public charges, it shall make a note of the conclusion of the investigation in the files." 
36.	It is clear from a combination of 163a(1) and 169a that investigation is not considered to be concluded within the German system until there has been an examination of the potential defendant.  Thus, as it seems to me, 169a, again as a matter of pure language of the provision, comes into play and requires that the note be made at the conclusion of the investigation.  
37.	It is obvious in this case that the investigation had not reached a conclusion, but on the material set out, which I have referred to, in the EAW, it is plain that the evidence that an offence had been committed was indeed powerful.  It is consistent only with the conclusion that the German authorities had taken the view that there was to be a prosecution unless the explanation given persuaded them there should not be.  
38.	I referred to the indication in Kandola that the German authorities would take advantage of MLA.  They have been asked in this case whether they would be prepared to have an external examination, by which I mean an examination when the Appellant was in this country, and they have said that they would not.  
39.	The court in Savov indicated that that was entirely a matter for the judicial authority of the requesting state and it was not appropriate or proper for the court in this country to go behind that.  If that was the view taken, then that was an end of any question of application of what is contained in section 21B or the indication that the examination could properly take place when the individual was not still in the country.  
40.	Ms Barden has submitted that here the Appellant had been given the opportunity of an examination and that by not agreeing to return to Germany he had made it clear that he was not going to avail himself of that opportunity.  That, she submits, means that there ought to have been an end of the investigation and that they cannot now rely on that as a basis for not having reached the stage where an indictment was preferred.  
41.	I am afraid that is an argument which I cannot accept.  The system in Germany, as I have said, requires that there be an opportunity for the accused or for the potential defendant's account to be given.  If Germany decides that that can only be done if he is to be present and they will not make use of MLA, that is a matter for them.  That is a matter which we cannot go behind and that means that that stage still has to be gone through.  But it is clear, and indeed the warrant shows that it is clear, that there has been what the court in Savov described as an informal decision that a prosecution should take place.  
42.	I am bound to say too that it seems to me that even if I were wrong in deciding that section 12A(1) was met in the sense that there are no reasonable grounds for believing that there will not be a prosecution or a trial, the only reason essentially for that not to happen is because the Appellant has not been in the country.  Indeed, that is entirely consistent with the decision in Savov in the case concerning the German judicial authority.  
43.	Ms Barden has sought to rely on the use of the word "suspect" in the warrant, but in my view, that does not assist her in any way because he was a suspect whether or not the stage had been reached where the decision was that he should be prosecuted.  Until convicted, if he was, he would remain a suspect on any sensible use of language.  It seems to me that description of him as a suspect does not in any way mean that there must be a view taken that he is not to be regarded as someone who is to be tried or charged.  
44.	It seems to me in those circumstances that the District Judge was correct in the sense that the letter from the German lawyer does not assist the Appellant when one has regard to the authorities to which I have referred.  
45.	It follows that, in my judgment, there is no basis for this appeal to be allowed and accordingly, it is dismissed.
46.	MR JUSTICE COLLINS:  Ms Barden, in case you were thinking of applying, I am not prepared to certify.
47.	MS BARDEN:  I was not going to, my Lord.  Thank you.
48.	MR JUSTICE COLLINS:  All right.  Well, thank you.  It is not altogether straightforward.
49.	MS BARDEN:  My Lord.