(1) Vanda Puceviciene v Lithuanian Judicial Authority (2) Andreas Conrath
| Jurisdiction | England & Wales |
| Judge | Lord Thomas Of Cwmgiedd CJ,and |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] EWHC 1862 (Admin) |
| Docket Number | Cases No: CO/4714/2015 CO/3240/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2016 |
[2016] EWHC 1862 (Admin)
The Lord Chief Justice of England and Wales
Lord Justice Burnett
Mr Justice Ouseley
Cases No: CO/4714/2015
CO/5620/2015
CO/3240/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
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
This is the judgment of the Court, to which all have contributed.
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.
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
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
It is important to note the following four matters in relation to the European Council Framework Decision of 13 June 2002 (2002/584/JHA).
i) 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.
ii) We received no submissions by reference to the principle of conforming interpretation that s.12A is inconsistent with the Framework Decision. Its purpose, as summarised in paragraph 11 below, is to ensure that individuals are tried expeditiously following their surrender. Consequently in broad terms it is consistent with Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights and Freedoms. As the Luxembourg Court in Aranyosi and Caldararu recognised, the Framework Decision did not modify any of the fundamental rights specified in the Charter [83]. The parties have proceeded on the assumption that s.12A is consistent with the Framework Decision. We have done the same.
iii) The Framework Decision contains no provision requiring either any particular stage to have been reached in the prosecution process before an "accused" person can be extradited, or requiring MLA to have been considered and rejected before an accusation warrant is enforced by extradition. The pro forma contained in the annex to the Framework Decision simply states:
"The warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution…"
iv) Article 15(2) permits "the executing judicial authority", which in the United Kingdom is Westminster Magistrates' Court, to request supplementary information from the requesting judicial authority.
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."
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.
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.
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."
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...
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