Bledar Prenga v Court of Florence, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] EWHC 3002 (Admin) |
| Docket Number | Case No: CO/3766/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 November 2016 |
[2016] EWHC 3002 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Holroyde
Case No: CO/3766/2015
Aaron Watkins (instructed by Henry Milner & Company) for the Appellant
Hannah Hinton (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 26 th October 2016
Approved Judgment
On 6 th August 2015 District Judge (Magistrates' Courts) Tempia ("the DJ") ordered the extradition of Mr Bledar Prenga ("the appellant") to Italy, where he is accused of serious drug trafficking offences. Mr Prenga appeals against the order for his extradition.
I am grateful to Mr Watkins and Ms Hinton for their written and oral submissions on behalf of the appellant and the requesting judicial authority ("the respondent") respectively.
The ground of appeal:
Italy has been designated a Category 1 territory for the purposes of the Extradition Act 2003, and the appellant's extradition was ordered pursuant to section 21(3) of that Act. Before the DJ, the appellant challenged extradition on three grounds, relating to sections 12A, 2(4)(c) and 21A of the 2003 Act. In this appeal, however, he has advanced only one ground of appeal: namely,
"that the DJ erred in concluding that the decisions required by s12A of the Extradition Act had been taken, because
a) She was wrong in law that an intention to formally request committal to trial could amount to a decision to try for the purposes of s12A; and
b) She failed to consider at all whether a decision to charge had been taken."
For the purposes of this appeal, therefore, the key statutory provisions are sections 12A and 26–27 of the Extradition Act.
Section 12A, headed "Absence of prosecution decision", 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.
(2) In this section "to charge" and "to try", in relation to a person and an extradition offence, mean –
(a) to charge the person with the offence in the category 1 territory, and
(b) to try the person for the offence in the category 1 territory."
Where extradition is ordered to a category 1 territory, section 26 provides a right of appeal to the High Court on a question of law or fact. Section 27, headed "Court's powers on appeal under section 26", provides –
"(1) On an appeal under section 26 the High Court may –
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that –
a. the appropriate judge ought to have decided a question before him at the extradition hearing differently;
b. if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that –
a. an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
b. the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
c. if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must —
a. order the person's discharge;
b. quash the order for his extradition."
Case law relating to s12A of the Extradition Act 2003:
There have been three important recent decisions of Divisional Courts which are relevant to this appeal. Only one of them had been decided before the hearing at first instance in this case.
On 13 th March 2015 a Divisional Court handed down judgment in the case of Kandola v Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097. At paragraphs 26 – 34 of the judgment, the court gave guidance as to the construction of s12A, and explained that it involves two distinct stages. At the first stage, the court would be concerned with whether there were reasonable grounds for believing (a) that at least one of two decisions (ie to charge, or to try, the requested person) had not been taken, and (b) that the absence of the requested person from the category 1 territory was not the sole reason for the failure to make one or both of those decisions. It was for the requested person to establish that there were reasonable grounds for believing both of those negatives. Only if he did so would the second stage arise for consideration. At the second stage, it would be for the requesting state to prove to the criminal standard that the decisions to charge and to try had both been made.
In relation to the first stage, the court in Kandola said (at paragraph 31) that if it was clear from the EAW itself that the two decisions had been taken, then the DJ should look no further. If however the warrant itself did not make it clear whether the decisions had been taken, then the DJ would be entitled to consider extraneous evidence; but the court discouraged the adducing of expert evidence about the relevant domestic law, saying that it should not be regarded as normal practice though it may be necessary "in rare cases".
The judgment of a Divisional Court in Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin), given by the Lord Chief Justice, was handed down on the 22 nd July 2016. At paragraph 50, with reference to the best approach to ascertaining (at either the first or second stage) whether a decision to charge and a decision to try have been made, the court said at paragraph 50:
"(vi) It is also important to emphasise that the real focus of s12A is always on whether there has been a decision to try. If there has been no decision to try, the question of whether there has been a decision to charge is irrelevant. If there has been a decision to try, a decision to charge will inevitably have been taken either earlier or at the same time as the decision to try. The words 'decision to charge' in reality add nothing to the achievement of the purpose, actual or supposed, of the Act or to its effect. They add nothing at either the 'reasonable grounds' stage or at the second stage where the burden lies on those representing the competent authority of the requesting state to prove that the decisions have been taken."
It is necessary to cite a lengthy passage at paragraphs 51–56 of the judgment, in which the court set out the correct 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. If there is such evidence before the judge, then so that the requesting judicial authority can provide assistance to the judge, the requesting judicial authority must be provided with some explanation of what is meant by the terms "decision to charge" and "decision to try". The authority needs that explanation so that it can provide by reference to the relevant procedural system a description of the functional equivalents of those terms and the stage the proceedings have reached.
53. We do not envisage anything elaborate by way of explanation, but simply to use the terms of the Act without such an explanation is insufficient. …
54. In explaining the requirements, it will be necessary to deal with the issue of formality and contingent or conditional decisions. We see no reason why any formality is required in relation to the making of a decision, as a prosecutor is entitled to make a decision to try a defendant before implementing any formal steps necessary, unless the procedural law of the requesting state prevents informality. Furthermore, in our view, a decision to try is nonetheless a decision to try even if it is conditional or subject to review. We find the judgment of the Irish Supreme Court in Olsson very persuasive in these respects, as we have stated at paragraph 45 above. There will, for example, be a decision to try, even if it is taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try.
55. However, although the focus will be on the decision to try, as we have set out at paragraph 50(vi), it may be necessary for the court to receive additional information as to whether there has been a decision to charge. It will usually be clear from the statement in the EAW that there has been a decision to charge as, in general, the request for the surrender of a person for the purposes of criminal prosecution cannot be made unless...
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