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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Powney v District Court of Ljubljana, Slovenia [2015] EWHC 2543 (Admin) (14 September 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2543.html Cite as: [2015] WLR(D) 392, [2015] EWHC 2543 (Admin) |
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COURT OF
JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
![]() ![]() Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HOLROYDE
____________________
BRIAN ![]() ![]() |
Appellant |
|
- and - |
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![]() ![]() |
Respondent |
____________________
Catherine Brown (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 21st July, 2015
____________________
OF
JUDGMENT
Crown Copyright ©
Mr Justice Holroyde:
"EUROPEAN ARREST WARRANT
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposesof
conducting a criminal prosecution or executing a custodial sentence or detention order."
The warrant then gives Mr Powney
's full name and date
of
birth. It gives his address as a house in Wolverhampton which I understand to be his parents' home. It identifies the order for Mr
Powney
's detention which was issued by the Respondent on 17th October 2014. It indicates the maximum sentence (5 years' imprisonment) for the offence alleged. In Box C2 it states:
"2. Lengthof
the custodial sentence or detention order imposed/Remaining sentence to be served:
The procedure is in the stageof
judicial investigation and the verdict has not yet been delivered."
The warrant then goes on, in Box E, to give detailed particulars of
the fraud alleged, which it describes as "one continued offence" and identifies as coming within the broad category
of
"swindling". This factual summary begins with the words:
"From the Decision to open procedure it is evident that the accused … "
Finally, the warrant identifies District
Investigating Judge Suzana Putrih as the representative
of
the Respondent
court
.
"12A Absenceof
prosecution decision
(1) A person's extradition to a category 1 territory is barred by reasonof
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 neitherof
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 oneof
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."
"21A Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtueof
section 11), the judge must decide both
of
the following questions in respect
of
the extradition
of
the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaningof
the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousnessof
the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guiltyof
the extradition offence;
(c) the possibilityof
the relevant foreign authorities taking measures that would be less coercive than the extradition
of
D.
(4) The judge must order D's discharge if the judge makes one or bothof
these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes bothof
these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.
(8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."
"26 There is a trans-national interest in bringing those accusedof
serious crime to justice, as Lord Steyn noted in Re Ismail [1999] 1 AC 320 at 327. He considered that extradition treaties and extradition statutes should therefore be accorded "a broad and generous construction so far as the texts permit it in order to facilitate extradition". That point was noted by Lord Hope
of
Craighead in Armas at [24], which concerned the construction
of
the EA itself. Lord Hope also pointed out that individual liberty was also at stake, so that "generosity must be balanced against the rights
of
the persons who are sought to be removed under these procedures". He noted that the task
of
construction was not easy because the wording
of
Part 1
of
the EA did not match that
of
the FD 2002. But, he said:
"The task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against the unlawful infringementof
the right to liberty".
The other four law lords agreed with Lord Hope's speech.
27 It seems to us that these are factors to be borne in mind in construing section 12A. It was clearly inserted in Part 1 with the aimof
ensuring that those extradited under "accusation" EAWs should not be subject thereafter to long periods in detention whilst investigations were carried out in the issuing state. At the same time, we must not approach the construction
of
the phrases "decision to charge" and "decision to try" in section 12A by reference solely to the domestic law and practice
of
criminal procedures in England and Wales or even the UK as a whole. Instead we must do so in a "cosmopolitan" way, just as Lord Steyn said the word "accused" in section 1(1)
of
the Extradition Act 1989 must be so construed: see Re Ismail [1999] 1 AC 320 at 322. That was also the approach
of
this
court
in Assange: see [151].
28 The applicationof
section 12A in practice is not easy to work out because it involves two distinct stages. In the first stage, which involves both section 12A(1)(a)(i) and (ii), the "appropriate judge" is concerned with whether there are reasonable grounds for believing that at least one
of
two decisions have not been taken, ie. the decision to charge or the decision to try the requested person, and, then, furthermore, if one
of
those two decision have not been made, that a state
of
affairs (the absence
of
the requested person from the category 1 territory) is not the sole reason for the failure to make one or other or both
of
those two decisions. Both those negatives have to be established (to the requisite level
of
"proof") by the requested person. The appropriate judge will only have to consider the issue
of
whether it appears that there are reasonable grounds for believing that the sole reason for a "failure" to make one or other or both
of
the two decisions (to charge and try) is not the requested person's absence from the category one territory if it "appears" to him that there are reasonable grounds for believing that at least one
of
those two decisions has not been made.
29 The appropriate judge will only embark on the second stage, in section 12A(1)(b)(i) and (ii), if he is satisfied that there are reasonable grounds for believing both that no decisions to charge and /or to try have been made and that the person's absence from the category 1 territory is not the sole reason for those decisions not being taken. Again the statutory wording puts the matter in a negative way. However, at this second stage, it is for "those representing the category 1 territory" to "prove", ie prove to the criminal standard (see section 206(2) and 206(3)(b)of
the EA ), that it has made a decision to charge and has made a decision to try the requested person. If those two matters are proved, that is the end
of
the section 12A challenge. However, if those representing the category 1 territory cannot prove, or accept, that either or both
of
the decisions have not been taken, then, in the alternative, the category 1 territory can prove (again, to the criminal standard) that the sole reason for whichever
of
those decisions has not been taken is the requested person's absence from the category 1 territory. If those representing the category 1 territory do not prove either
of
the matters identified in section 12A(1)(b)(i) and (ii) to the criminal standard, then the requested person's extradition to that territory for the extradition offence will be barred.
30 At the first stage, it seems to us that the default position will be that the two decisions have been taken. It is only if the requested person raises before the appropriate judge the challenge that no prosecution decision to charge or try has been made, that the appropriate judge (in England and Wales the DJ) has to decide the point. The phrase "it appears to the appropriate judge" must mean that he is satisfied, on the material before him, that there are "reasonable grounds for believing that" one or bothof
the two decisions have not been made. The phrase "reasonable grounds for believing" means that, on the objective view
of
the appropriate judge, there are "reasonable grounds for believing" that one or both
of
the two decisions have not been made. "Reasonable grounds for believing" involves something less than proof on a balance
of
probabilities, but more than simple assertion, or a fanciful view or "feeling".
31 On what evidence is the DJ to come to a decision that "it appears" to him that there are "reasonable grounds for believing" that at least oneof
the two decisions has or has not been made by the competent authorities? The exercise will be conducted on two bases. First, it may be clear from the EAW itself, read as a whole, that the appropriate authorities have taken or have not taken the two decisions. If the matter is clear from the terms
of
the EAW as a whole that the decisions have been taken, then the DJ should look no further in relation to that point. That is because the DJ is entitled to rely on the statements made in an EAW by a fellow judicial authority. Although section 12A is not based on either FD, it seems to us that any statement
of
the relevant judicial authority on this issue must be treated with a high degree
of
trust, because the whole basis
of
the EAW mechanism is "based on a high level
of
confidence between Member States": see paragraph (10)
of
the preamble to FD 2002.
32 Secondly, however, if a requested person makes a challenge under section 12A and it is unclear from the EAW itself whether decisions have been taken to charge and try, the DJ must be entitled to consider extraneous evidence. It is up to the requested person to advance sufficiently cogent evidence to raise a case to the standard indicated above. However, we think that extraneous evidence from a requested person should not be permitted to throw doubt on a clear statement in the EAW that the two decisions have, in fact, been made. Furthermore, we suggest that the productionof
elaborate "expert" evidence from lawyers or others on what, under the relevant domestic law, might constitute a "decision to charge" or a "decision to try" is not to be encouraged, particularly at the "reasonable grounds for believing" stage, or else hearings on this issue will become long, complicated and very costly. It may be necessary in rare cases, but it should not be regarded as the normal practice. We think that this approach is in line with that recommended in Assange at [147], although we appreciate that the remarks in Assange concerned section 2
of
the EA , not the new section 12A . We accept the proposition advanced by the Judicial Authority in Mr Kandola's case that at the first stage (ie the "reasonable grounds" stage), it is neither appropriate nor necessary for the DJ to make or direct enquiries
of
the Judicial Authority as to whether decisions to charge or try the requested person have been made. That is because it is for the requested person to satisfy the DJ that there are "reasonable grounds for believing" that at least one
of
the two decisions has not been made. Likewise, it is not appropriate or necessary for the DJ at this "reasonable grounds for believing" stage to cause any inquiry to be made
of
the Judicial Authority as to the reason for the absence
of
either such decision. That is because, at this first stage, it is also for the requested person to show that there are reasonable grounds for believing that the failure to take whichever decision is missing is not solely due to the requested person's absence from the category 1 territory.
33 How is the DJ to tackle the question, at the "reasonable grounds for believing" stage,of
whether the sole reason for the lack
of
decisions to charge and/or try is the absence
of
the requested person from the category one territory? Again, it must be for the requested person at this stage to provide sufficient evidence to raise a case that his absence from the category one territory is not the sole reason for the lack
of
decisions to charge and try him. It is likely that this could only be done by some sort
of
extraneous evidence from the requested person. We think that the evidence need not be elaborate, but mere assertion will be insufficient to raise a case that there are "reasonable grounds for believing" that the sole reason for the lack
of
decisions is not the absence
of
the requested person from the category one territory concerned.
34 If the requested person satisfies the DJ as required by both section 12A(1)(a)(i) (either as to a decision to charge or try) and (ii), so that the burden then falls on those representing the category 1 territory to prove (to the criminal standard) that the two decisions have been made, or, alternatively, that the sole reason for them not being made is the requested person's absence from the category one territory, how are those matters to be proved? In the vast majorityof
cases a short, clear, statement from the relevant Judicial Authority answering the following simple questions from the CPS acting on its behalf in the extradition proceedings should be determinative: "(i) has a decision been taken in this case (a) to charge the requested person and (b) to try him, if not, (ii) is the sole reason for the lack
of
each
of
the decisions that have not been taken the fact that the requested person is absent from the category 1 territory
of
which you are a/the Judicial Authority?" The requested person may be able to challenge such statements, but we would hope that disputes on the issues raised by section 12A(1)(b) will not result in elaborate hearings on factual or expert evidence, or else that would defeat the whole object
of
the EAW system
of
simple and quick procedures to surrender persons who are wanted for the purposes
of
criminal prosecution to category 1 territories. Elaborate evidence would also place an intolerable burden on the DJs who have to deal with extradition and who already have a very heavy work load
of
cases and hearings. "
"(1) Thecourt
will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page
of
the warrant, which may well be equivocal. (2) In the case
of
an "accusation case" warrant, issued under Part 1
of
the Act, the
court
has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a)
of
the Act. (3) Similarly, the
court
will look at the wording
of
the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose
of
the warrant is for the purpose
of
the requested person being prosecuted for the offences identified. (4) The
court
must construe the words in section 2(3)(a)(b) in a "cosmopolitan" sense and not just in terms
of
the stages
of
English criminal procedure. (5) If the warrant uses the phrases that are used in the English language version
of
the EAW annexed to the Framework Decision, there should be no (or very little) scope for argument on the purpose
of
the warrant. (6) Only if the wording
of
the warrant is equivocal should the
court
consider examining extrinsic evidence to decide on the purpose
of
the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face
of
the warrant itself. (7) Consideration
of
extrinsic factual or expert evidence to ascertain the purpose
of
the warrant should be a last resort and it is to be discouraged. The introduction
of
such evidence is clean contrary to the aspiration
of
the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states
of
the European Union. Therefore the introduction
of
extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
"Adopting a cosmopolitan approach, I interpret these words as meaning that the case is at a stage where it is ready for trial."
He then referred to the words in Box E (quoted above) which introduce the factual summary of
the allegation, and said –
"I interpret these words as evidence that the criminal proceedings against MrPowney
have commenced."
"The detailsof
the alleged conduct are set out fully in the EAW and give no indication at all that further investigation is necessary or envisaged. Considering the wording
of
the warrant as a whole I am satisfied that the warrant is clearly for the purpose
of
the requested person being prosecuted for the offence set out."
"I find that MrPowney
has not proved to the required standard that no decision has been made to charge or try him. In fact it is clear to me that, on reading the warrant as a whole, Slovenia has clearly made decisions to charge and try Mr
Powney
for the extradition offence. There is therefore no need for me to go on to consider the further steps set out in this section."
"The alleged frauds took place over a periodof
about 11 months. It seems to have been committed with others. There are "several tens"
of
victims who have, no doubt, lost hard-earned savings. The amounts defrauded from them total EUR 31,990. This is a large sum
of
money, though not notably large by the standard
of
frauds that the criminal
courts
deal with. The extradition offence is a serious one."
As to subsection (3)(b), the likely penalty, he said:
"In our own jurisdiction the requested person would almost certainly receive a custodial sentence, the lengthof
which would depend on his plea, antecedents and mitigation. The offence carries a 5 year maximum penalty in Slovenia."
As to subsection (3)(c), less coercive measures, he said:
"There is no information that such measures are envisaged by Slovenia. MrPowney
told me he would be prepared to be interviewed by Slovenian authorities in this country."
"MrPowney
's personal circumstances are that he is 56 years old and lives permanently in Tenerife. He came to London to visit his daughter and was then arrested under this EAW. He intends to return to Tenerife at the conclusion
of
the proceedings against him. I have not been told
of
any significant issues that would bar extradition under section 21/Article 8 or any other Convention right. Taking all these matters into account, I find that for an offence
of
this seriousness, extradition would be compatible with Convention rights and would not be disproportionate."
"1. Under the Criminal Procedure Act applicable in the Republicof
Slovenia, a
court
investigation forms part
of
criminal procedure conducted by the Investigation Judge who is also competent for the issuing
of
the European Arrest Warrant for the person charged, in this particular case for Brian
Powney
, in order to successfully complete the criminal procedure.
Court
investigation has been initiated for the said person but without the preliminary questioning, since the local authorities have been unable to reach him; however, the Investigation Judge cannot complete this stage
of
the procedure until the person charged is questioned. The presence
of
the person charged is mandatory also in later stages
of
the procedure, namely after the lodging
of
charge.
2. Regarding the person charged, please note that there is no other more appropriate action to be taken, since the said person is avoiding the procedure; we have also received a note from Interpol Manchester in February 2014 saying that the person charged no longer resides at his permanent residence at [Wolverhampton] and that the British security authorities have no knowledgeof
his current residence. In light
of
the information received, the
Ljubljana District
State Prosecutor's Office motioned that detention be ordered for the person charged and European Arrest Warrant be issued."
i) As to section 12A, "the investigation of
the case is not yet complete; the requesting judicial authority have not yet decided whether to charge the Appellant or place him on trial. There are no reasonable grounds for believing that the sole reason for the Slovenians' failure to decide whether to charge or try the Appellant is the Appellant's absence from that country."
ii) As to section 21A, "the learned District
Judge failed adequately or at all to conduct the proportionality exercise, including proper consideration
of
the question
of
less coercive measures."
i) DJ Coleman misinterpreted Box C2: the reference to "the verdict" should be understood to mean "a final decision as to whether or not to charge Mr Powney
".
ii) DJ Coleman was wrong to rely on the words of
the preamble: the pro forma language
of
the preamble, which appears in every EAW, cannot assist in understanding the purpose for which the warrant was issued. In this regard, Mr Hawkes relies on paragraph 15
of
the judgment in Asztaslos
v
Hungary [2011] 1WLR 252, in which the
court
held that the failure
of
the requesting authority to delete inapplicable words from the preamble did not
of
itself render the EAW invalid.
iii) DJ Coleman wrongly interpreted the introductory words of
Box E, which should be understood to refer to an ongoing investigation rather than to a settled decision to charge or to try.
iv) DJ Coleman was wrong to conclude that there was nothing to indicate that any further investigation was necessary or was envisaged. In this regard, Mr Hawkes points out that the EAW states that RCI, based at Northampton, does not exist, whereas such a company can easily be identified via the internet. That, he says, is an indication that the investigation of
the alleged crime cannot be complete.
"11. … The German judicial authorities can be taken to understand the fundamental principles underlying the Framework Decision. That decision is intended to facilitate the easy and speedy extraditionof
individuals from one Member State to another for two and only two purposes: to prosecute them and to require them to serve the unexpired portion
of
a sentence
of
imprisonment imposed upon them, hence respectively the shorthand 'accusation and conviction warrants'. … 13. … A glance at this warrant will demonstrate that it is not a conviction warrant. Therefore, what the German authorities are certifying is that it is an accusation warrant. It is a warrant issued to secure the surrender
of
the Appellant for the purpose
of
conducting a criminal prosecution against him. 14. Its terms are consistent with that. … 16. Anyone reading this warrant in … a 'cosmopolitan' sense and not with the narrow focus
of
an English lawyer would immediately appreciate that this is a warrant issued at the start
of
a civil law criminal process in which the investigating judge or judge
of
the first instance is commencing the prosecution against the individual."
"…the submissionsof
both counsel that section 21A(1) creates two separate bars to extradition in an accusation case. It may be that the factors influencing an Article 8 balance under section 21A(1)(a) will overlap with an assessment
of
proportionality for the purpose
of
section 21A(1)(b) , but that they require separate consideration is made plain by the terms
of
section 21A(2) and (3) . Subsections (2) and (3) require a free standing judgment that (subject to the bracketed words in subsection (2), to which I shall return) is formed upon consideration
of
, and only upon consideration
of
, the seriousness
of
the conduct alleged, the likely sentence and alternative methods
of
securing the requested person's attendance at the
court of
the Category 1 territory."
"It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligation under Article 5 (3) ECHR , already considered the takingof
less coercive measures. I accept the submission … that there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances."
He submits however that in the circumstances of
this case Mr
Powney
has discharged that burden.
"(3) A request under this subsection is a request by the person in respectof
whom the warrant is issued—
(a) to be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representativesof
an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant."
In any event, says Miss Brown, the possibility of
less coercive measures has to be viewed in the context
of
the likelihood
of
a custodial sentence in the event
of
conviction.
Lord Justice Burnett: