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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kemp v Court of 1st Instance No.4 of Orihuela, Alicante, Spain [2016] EWHC 69 (Admin) (22 January 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/69.html Cite as: [2016] EWHC 69 (Admin) |
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CO/5500/2015 CROSS APPEAL |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
The Hon Mr Justice Nicol
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Paul John Kemp |
Appellant |
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- and - |
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Court of 1st Instance No.4 of Orihuela, Alicante, Spain |
Respondent |
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Benjamin Newton (instructed by Hodge Jones and Allan) for the Respondent
Hearing dates: 9 December 2015
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Crown Copyright ©
LORD JUSTICE BURNETT:
The statutory provisions
"12A Absence of prosecution decision
(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."
Section 21A person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of 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 meaning of 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 seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of 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 both of 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 both of these decisions-
(a) that the extradition would be compatible with the Convention rights:
(b) that the extradition would not be disproportionate."
The Background Facts
Section 21A and Proportionality
"driven on the instant facts … to conclude surrender would not be proportionate given the period already served effectively in custody and the overall period since 2010 in the unusual context of this case."
His overall conclusion on this issue was:
"… I do find surrender on these particular facts would not be "proportionate" given the time in effect in custody (subject to qualifying curfew 638 days +) and the likely sentence given a maxima of 4 ½ years. Therefore I discharge this request on that ground."
"While the focus of subsection (3)(b) is upon the likelihood of a custodial penalty it does not follow that the likelihood of a non-custodial penalty precludes the judge from deciding that extradition would be proportionate. If an offence is serious the court will recognise and give effect to the public interest in prosecution. While, for example, an offence against the environment might be unlikely to attract a sentence of immediate custody the public interest in prosecution and the imposition of a fine may be a weighty consideration. The case of a fugitive with a history of disobeying court orders may require increased weight to be afforded to subsection (3)(c): it would be less likely that the requesting state would take alternative measures to secure the requested person's attendance."
Section 12A
"28. The application of 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, i.e. 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", i.e. 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 both of 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 one of 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 production of 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 (i.e. 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 majority of 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."
"6. The decision on the prosecution and trial has not yet been adopted regarding the now arrested John Paul Kemp, having not yet been brought before the court.
7. After the surrender, as in the already cited case of Adam Lee Garvey, the court would be able to conclude the proceedings concerning John Paul Kemp and to decide the continuation of the case against him with the aforementioned phases of prosecution and referral to the trial court to be tried.
8. The only cause for which the procedure could not continue regarding John Paul Kemp is because it had not appeared nor had not been rendered before the court that issued the Examining Judge. Spanish procedural law requires that before deciding to initiate phase for prosecution and trial the defendant appear before the Examining Court to be informed about the charges against him and about its rights, to appoint a lawyer of his choice, that otherwise would be appointed by the Bar on his behalf, and to exercise its right of defence since that moment onward. "
"The only reason why it has not been possible for the proceedings to continue in respect of John Paul Kemp is because he has not been presented before the Examining Magistrate."
"(1) "Judicial engineering" by the Spanish Judicial Authority;
(2) Abuse of process on the basis that it was clear that the conduct set out in EAW3 did not give rise to the offence alleged;
(3) Specialty in respect of the extant proceedings which formed the basis of EAW1;
(4) Articles 6/5 of the European Convention on Human Rights;
(5) The bar under S.12A of the 2003 Act; and
(6) Article 31 of the Refugee Convention."
"47. It was submitted to the Senior District Judge by the Spanish Judicial Authority that the only reason why the decision to try had not been taken was the absence of the appellant from Spain. That absence impeded the final conclusion of the instrucción phase and the opening phases of prosecution and trial. The Spanish Judicial Authority issued a certificate to that effect. It was submitted there was no bar to extradition.
48. Mr Casanova's evidence in relation to that certificate, which on this point was not disputed by any evidence to the contrary before the Senior District Judge, was that the appellant could have been questioned in the UK by video conferencing, the use of the Mutual Legal Assistance Convention or even a temporary transfer to Spain for the purposes of questioning under the provisions of the 2003 Act. It was therefore submitted on the appellant's behalf that his absence from Spain was not the sole reason why the decision to charge had not been made.
49. The response of the Spanish Judicial Authority was a statement that:
"I can confirm that, in issuing such [the certificate to which we have referred], I considered whether there was any suitable alternative means of interviewing the defendant in this case, including for example the use of mutual legal assistance and videolink. I can confirm, having considered this, that the position remains as set out in the document of 13 February 2015; the only reason in this case why a decision to try has not been taken is exclusively the absence of the defendant in Spain."
50. After being referred to the decision of this court in Kandola v The German and Italian Judicial Authority [2015] EWHC 619 (Admin) the judge decided that he had confidence and mutual respect for the Spanish Judicial Authority; if the investigating judge told him that he had considered the alternatives and the sole reason why the decision to try had not been taken was the absence of the appellant, then he accepted the word of the investigating judge. He therefore dismissed this as a bar to extradition."
"56. It is clear in our view that, where evidence is adduced which shows that a means of examination of a defendant is possible either through the use of the Mutual Legal Assistance Convention or otherwise before the decision to prosecute is made, then it is for the requesting European judicial authority to prove by adducing evidence to the requisite standard of proof that the test in s.12A(1)(b)(ii) has been met. In the present case the Spanish Judicial Authority has given no reasons. On the face of it, on the evidence before the court, it therefore has not shown that the sole reason for the decision to prosecute not having been made is the appellant's absence from Spain."
The Spanish authorities declined the opportunity to adduce further evidence in response to Mr Casanova on this point. In [59] he said that Mr Casanova's evidence plainly calls for an explanation. The Spanish authorities had declined to provide "simple reasons", and to do so would enhance confidence. His overall conclusion is at [60]:
"It seems to us, following the decision in Kandola, that the Senior District Judge was wrong on the facts of this case to act on the unreasoned statement of the Spanish judge.
(1) Proper evidence had been adduced before the court that there was a means of examining the appellant in the United Kingdom; therefore the sole reason for the decision to prosecute not having been made was not his absence from Spain.
(2) There are real concerns about the delay in this case. The matter with which the appellant is charged relates to events in April 2011 and further delay would not be acceptable.
(3) It would not have been difficult for the Spanish Judicial Authority to have responded on this point. It could easily set out its reasons, taking into account that the purpose of s.12A was to ensure that there would be no delays.
(4) It is inexplicable in these circumstances why the Spanish Judicial Authority did not seek to take advantage of the invitation which we extended to put in evidence during the course of the appeal. We are very concerned that our invitation was expressly declined on the instructions of the CPS, in contradistinction to acceptance by the Spanish Judicial Authority of the need to terminate the proceedings underlying EAW1.
(5) In the light of these matters and of evidence which we have considered under the first issue, "judicial engineering", and the concerns we have expressed, the failure to answer the simple points raised by Mr Casanova cannot be accepted in this particular case.
(6) Even if Kandola was wrongly decided (which we think it was not) and the usual position is that it is permissible to accept the unreasoned statement of a judicial authority, it would not in the circumstances of this case be appropriate to accept the unreasoned statement of the Spanish Judicial Authority."
"Individuals can be compelled to attend court for the purposes of MLA requests under section 15 of CICA. However, schedule 1 of CICA makes it clear that a person cannot be compelled to give any evidence before a nominated court which he could not be compelled to give in criminal proceedings in the UK or if the criminal proceedings were being conducted in the requesting state. Of particular relevance in this context are:
- The privilege against self-incrimination; and
- The provisions in UK domestic law that a person charged with an offence cannot be compelled to give evidence in his own trial."
Conclusion
Mr Justice Nicol