Sebastian Jaworski v Einhaus Oberstaatsanwalt of the Staatsanwaltschaft Frankfurt (Germany)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 08 June 2016 |
| Neutral Citation | [2016] EWHC 1646 (Admin) |
| Date | 08 June 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/583/2016 |
[2016] EWHC 1646 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holroyde
CO/583/2016
Mr P Mason (instructed by Lansbury Worthington) appeared on behalf of the Applicant
Miss J Farrant (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
On 29 January 2016 Senior District Judge Riddle ordered the extradition of the Applicant, Mr Jaworski, to Germany pursuant to an accusation European Arrest Warrant which was issued on 26 November 2015 and certified by the National Crime Agency on 8 December 2015.
With the leave of Irwin J, the Applicant appeals on a single ground relating to section 12A of the Extradition Act 2003. I have been greatly assisted by the admirable written and oral submissions of Mr Mason and Miss Farrant, to both of whom I am grateful.
The facts can be briefly summarised. I gratefully adopt the succinct words of the District Judge who indicated that in essence the Applicant was:
(1) "… sought as part of a "gang of thieves" who travelled from Poland to Germany to break into cars and take them to Poland to be deconstructed and sold. It is said that it was the responsibility of Mr Jaworski to make sure that the area was not disturbed and later to drive the stolen cars (of which there were 12) to Poland or to drive ahead of the stolen goods on the look out for police controls."
In the European Arrest Warrant the nature of the offending is described as "grand gang theft" alleged to have taken place between 2 September 2012 and 10 July 2014.
I set out the terms of section 12A of the 2003 Act as annex A to this judgment.
Valuable guidance as to the operation of section 12A was given by a Divisional Court in Kandola v Germany [2015] EWHC 619, in particular in paragraphs 28 to 34 of the judgment of the court given by Aikens LJ. I attach those paragraphs as annex B.
In summary, the application of section 12A involves two distinct stages. At the first stage, the requested person must establish both of two negatives. First, there must be reasonable grounds for the judge to believe that either a decision to charge the requested person or a decision to try the requested person has not been taken. Secondly, there must be reasonable grounds for the judge to believe that the requested person's absence from the requesting state is not the sole reason why one or both of those two decisions has not been made.
If, but only if, the requested person succeeds at that first stage, the burden then shifts to the requesting state to prove to the criminal standard that either both a decision to charge and a decision to try have been made or if one or both of those decisions has not been made, that the requested person's absence from the jurisdiction is the sole reason for the relevant failure.
Here it is submitted by Mr Mason on behalf of the Applicant that the learned District Judge misinterpreted the guidance given in Kandola and so fell into error in his application of section 12A to the facts of this case.
In view of the focus placed upon it in Mr Mason's submissions, it is appropriate for me to set out in full a lengthy paragraph from the judgment of the District Judge. At page 2 of his judgment he said:
(1) "I start from the default position, namely that the two decisions have been taken. That is reinforced by the warrant itself. The warrant starts with the standard preamble that surrender is requested "for the purposes of conducting a criminal prosecution or executing a custodial sentence…" Further in box E the defendant is referred to as "the accused together with the other prosecuted persons…" He is said to be the main perpetrator. It is correct, as Mr Mason points out, that it is not clear from the terms of the EAW as a whole that the decisions have been taken. He is right, in my view, to say that the court can look at extraneous material, in this case the form A which provides supplementary information in relation to the EAW request. In that form, it says: "please do not arrest the W/P before tomorrow, 2015-12-09, in order not to compromise German investigations!" Mr Mason says this points to the fact that investigations are continuing and the decision to charge and try has not been taken. However, the remarks themselves are far from specific. There is a reasonable inference that the investigations relate to this particular case, but not necessarily this particular defendant and in any event the timing is "tomorrow". When I put together all the information I have, and starting with the default position, reinforced by comments in the warrant and in particular the reference to "other prosecuted persons", and reminding myself of the high degree of trust referred to in paragraph 31, then the defence have not satisfied me that there are reasonable grounds for believing that at least one of the two decisions has not been made."
Mr Mason submits that in that passage the learned District Judge misapplied Kandola in at least two respects and that as a result he adopted an incorrect approach, which had the effect that he wrongly elevated or increased the burden upon the Applicant beyond the establishing of reasonable grounds for the relevant belief. He argues that the initial error of interpretation of Kandola tainted what followed and therefore cannot be treated as an immaterial mistake by the District Judge which did not affect the outcome of the case.
First, Mr Mason submits that in paragraph 30 of Kandola the reference to a default position is a reference to a default position which obtains only unless and until the requested person raises a challenge under section 12A. I agree that that is how the phrase is used in paragraph 30. That paragraph simply makes the point that in the absence of any section 12A challenge, the court will proceed on the basis that the relevant decisions have been made and that no further inquiry is needed.
But although I accept that submission from Mr Mason, I do not think it assists the Applicant. When a challenge is raised under section 12A, Kandola makes clear that the initial burden at the first stage lies on the requested person. If he fails to establish reasonable grounds for the relevant beliefs, the court is not left in a vacuum. In the absence of a successful challenge, the court can and should proceed on the basis that the relevant decisions have been taken. I do not think it would be an abuse of language to refer to that as "a default position", though that is doubtless an unhelpful phrase to adopt in the context of a discussion about Kandola.
Secondly, Mr Mason points to the DJ's reference to "the high degree of trust referred to in paragraph 31" of Kandola. He submits that in that paragraph the court in Kandola used the phrase simply to explain why, when the EAW itself is clear, there is no need for a DJ to look further. Again, I accept Mr Mason's submission in that regard, but again I do not think that it helps the Applicant. It does not seem to me that the District Judge in fact gave unmerited or inappropriate trust to any aspect of the EAW.
Thirdly, Mr Mason submits that the DJ gave undue weight to the standard preamble of the EAW. Precisely because it is a standard preamble, he argues, only limited weight can or should be given to it. In making this submission, Mr Mason sought to gloss some of what I said at paragraph 26 of my judgment in Powney v Slovenia [2015] EWHC 2543 (Admin). I am grateful for his submissions, but I see no reason to alter or amend what I said in that case.
Fourthly, Mr Mason points to a number of the phrases in the EAW which the District Judge in his judgment did rely upon and which Mr Mason submits he was wrong to rely upon. I will deal with each of these briefly.
First, Mr Mason points to the phrase "the accused together with the other prosecuted persons". In my view, the natural meaning of that phrase is that it refers to a man who is himself to be prosecuted, not to a mere suspect who might or might not be shown to be implicated in the alleged crime. The argument put forward attractively by Mr Mason, that an alternative interpretation of the words is possible as a matter of semantics, does not, in my view, amount to a reasonable ground for thinking that a decision to prosecute the Applicant had not been made.
Secondly, Mr Mason refers to the DJ's reference to the allegation in the EAW that the Applicant's role was that of "main perpetrator". He submits that the word perpetrator is equivocal. Not, in my view, in this context. To my mind, the reference to him as a main perpetrator favours the view that the decision to prosecute him has been made.
Thirdly, Mr Mason points to the note in form A...
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