Bashir Ahmed v Public Prosecutor of Landshut Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 01 March 2016 |
| Neutral Citation | [2016] EWHC 400 (Admin) |
| Date | 01 March 2016 |
| Docket Number | Case No: CO/4705/2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/4705/2015
Mr Ben Cooper (instructed by Hodge, Jones and Allen Solicitors) for the Appellant
Mr Daniel Sternberg (instructed by CPS Extradition) for the Respondent
Hearing dates: 22 January 2016
This is an appeal against the decision of District Judge Grant on 28 September 2015 ordering the extradition of the Appellant to Germany on an accusation European Arrest Warrant issued by the Chief Public Prosecutor of Landshut, Bavaria. The Appellant is accused of two offences of fraud involving the hiring of two valuable cars, a BMW and an Audi, each worth about €60,000, from Sixt and Avis at Munich airport in June 2013. The Appellant is a 55 year old British citizen, who lives in Great Britain, has lived here since 1975, and against whom no convictions or cautions have been recorded in the UK. The appeal is essentially concerned with s12A of the Extradition Act 2003, as amended, which deals with the need for a prosecutor's decision to charge and try an accused before extradition is ordered.
The Appellant admits flying to Munich and hiring the two cars at its airport which he says he did for payment, at the request of a friend. He and this friend drove the two vehicles to Hungary and then on to Istanbul and finally to Kurdistan in Iraq. There he was threatened because of concerns he expressed about what was happening. He was then told that the cars would stay in Kurdistan, but it was agreed that he could leave. His friend had his passport. Just before departure at the Kurdistan airport, he was given back what he thought was his passport, but he was arrested there for possession and use of a false passport. After he had been in prison there for four months or so, he was acquitted, and released. On his return to the UK, Avis contacted him; he told them what he said had happened: that he had acted honestly in hiring the cars but had been duped by his friend. Avis passed this information to the police or to the prosecutor's office in Landshut which were investigating numerous cases involving the fraudulent hire of premium cars at Munich airport.
The statutory provisions
S12A 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."
In essence, the s12A 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.
The proceedings below
In his judgment, the District Judge states:
"On 30 April it was argued on behalf of the judicial authority that a decision to charge and try had been made and argued on behalf of the requested person that no such decision had been made."
Mr Sternberg, then as now for the judicial authority, told me, and I accept, that in fact his argument in response to the asserted bar was rather that there were no reasonable grounds for believing that the relevant prosecution decisions had not been made.
The District Judge then said that, after the hearing and before judgment:
"…it was confirmed on behalf of the judicial authority that no decision to charge and try had in fact been made and the first part of the first stage Section 12A test was conceded. The hearing on 2 September was primarily concerned with the issue of whether the sole reason for this was the requested person's absence from the jurisdiction."
At the 2 September hearing, the information placed before the District Judge was, first, a letter dated 24 April 2015 from the Landshut Public Prosecutor to Mr Sternberg replying to his enquiries dated 14 April 2015, but not faxed in time for the 30 April hearing. The answers need to be read with the questions. Question 1: "has Bashir AHMED been charged or given formal notification that he is alleged to have committed a criminal offence? Answer: Mr Ahmed is not yet charged, he was not informed that he committed a punishable offence." (Note the question). Question 2: "if the formal decision to charge has not been made, what is the reason for this? Answer: he has not yet been charged because he is not present. Under German law, a charge cannot be accepted by the court if the charged person is not present." (Question 2 is clearly the follow-on to Question 1.) Question 3: "Has a decision been made that Bashir AHMED should stand trial for the offence? Answer: a formal decision that Mr Ahmed has to stand trial is not required. The national arrest warrant could only be used in accordance with German law because there is a strong suspicion against Mr Ahmed. The application for an issue of the arrest warrant is the preparation for the referral of charges once he is in Germany. Due to strong suspicion the public prosecutor is obliged to prefer charges. It is therefore certain that Mr Ahmed will have to stand trial in Germany." Question 4: "If the decision to try Bashir AHMED has not been made what is the reason for this? Answer: The only reason is the fact that he is not in Germany." Question 5: "Is the absence of Bashir AHMED the sole reason why a decision to charge and try has not been made (if no such decision has been made)? Answer: Yes, the only reason lies in the fact that he is not present". Question 6: "When did you receive information that Bashir AHMED was not physically present in the country? Answer: On October 1 2013 the prosecutor was informed that Mr Ahmed was not personally present in the country." Question 7: "If no decision to charge or try has been made in Mr Ahmed's case, would it be possible to use Mutual Legal Assistance, such as video-link interviews or hearings or a European Supervision Order in order to make progress in the case against him? Answer: The stated means of legal assistance were not possible because German law requires the personal presence of Bashir Ahmed in Germany." Question 8: "If it is not possible to use Mutual Legal Assistance measures, do you consider Mr Ahmed to be a flight risk? Answer: There is the risk of flight: Mr Ahmed has no permanent social relations in Germany. He is able to abscond at any time. He must expect a lengthy prison sentence without probation. Therefore there is a great incentive for him to flee."
Further information was sought on 16 July 2015 and provided on 22 July 2015 in response to information provided by a German lawyer instructed on behalf of the Appellant. This information was summarised in the letter of 16 July as follows:
"i. Since Mr. Ahmed's whereabouts were known by the prosecutor in 2013 it was possible and still is possible to interrogate Mr. Ahmed by mutual legal assistance prior to bringing charges;
ii. The prosecution could have sent the charges within a mutual legal assistance request in 2013 or he could have been summoned to attend a court hearing within a mutual legal assistance request to the UK;
iii. There is no good reason why the prosecutor has not tried to examine Mr. Ahmed using mutual legal assistance, Mr. Ahmed has always been open about his location in the UK;
iv. That it was not mandatory to issue an EAW against Mr. Ahmed to close the procedure in the prosecution against Mr. Ahmed and to charge him."
The answer was:
"The Public Prosecutor's Office of Landshut is dealing with numerous cases where premium cars were rented fraudulently at Munich Airport. According to established law practice at the Erding Local Court, which has jurisdiction for these cases and the present case as well, the accused must expect imprisonment for at least 2 years and 6 months, which cannot be suspended.
Based on the evidence we have available, particularly the statement of the witness Smith and the photographs available here, the accused Ahmed is strongly suspected of having committed the offence, which makes a conviction very likely.
Considering the prison sentence the accused Ahmed has to expect, it could not be expected that he would face the criminal procedure in Germany voluntarily. The facts and circumstances of the case can ultimately only be clarified and decided in Germany. Even though the address in Great Britain is known here, interrogating the accused Ahmed by way of mutual legal assistance was therefore not indicated. The requested extradition of the accused from Great Britain is essential to ensure the criminal procedure in Germany."
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