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Cite as: [2016] EWHC 69 (Admin)

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Neutral Citation Number: [2016] EWHC 69 (Admin)
Case No: CO4029/2015 APPEAL


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :

The Rt Hon Lord Justice Burnett
The Hon Mr Justice Nicol


Paul John Kemp
- and -

Court of 1st Instance No.4 of Orihuela, Alicante, Spain


Louisa Collins (instructed by CPS) for the Appellant
Benjamin Newton (instructed by Hodge Jones and Allan) for the Respondent
Hearing dates: 9 December 2015



Crown Copyright ©


  1. On 11 August 2015 District Judge Purdy discharged the respondent and refused to order his extradition to Spain on an accusation European arrest warrant ["EAW"] on the ground that his extradition would be disproportionate for the purposes of section 21A(2)(b) of the Extradition Act 2003 ["The 2003 Act"]. The respondent had resisted extradition on a number of additional grounds, including pursuant to section 12A of the 2003 Act. He argued that the judicial authority had not established that he was sought for charge or prosecution or that the only reason why he had not been charged was his absence from Spain.
  2. With leave of the single judge the judicial authority appeals against the conclusion that extradition would be disproportionate. The respondent cross appeals against the conclusion that he was not entitled to be discharged pursuant to section 12A.
  3. The statutory provisions

  4. With effect from July 2014 the provisions in issue in this appeal were introduced into the 2003 Act by the Anti-social Behaviour, Crime and Policing Act 2014. As material they provide:
  5. "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."
  6. Whilst section 21A is concerned both with Convention rights and proportionality, this appeal relates only to the latter.
  7. The Background Facts

  8. The respondent's extradition is sought pursuant to an accusation warrant issued on 13 April 2010 by the Court of First Instance of Orihuela, Alicante Spain. It superseded an earlier warrant which had been withdrawn. The allegation against the respondent is that he played a leading role in a conspiracy to smuggle of 800 kilograms of cannabis (sourced in Morocco) from Alicante to the United Kingdom. He was said to be a middle man concerned with storage and transport of the drugs. The drugs were seized. The EAW indicates that the evidence against him stems from telephone intercepts. The maximum penalty in Spain for such offending is four and a half years' imprisonment. The respondent was arrested pursuant to the EAW on 10 June 2010. The extradition proceedings were then delayed because the appellant was being prosecuted in England for affray. In due course he was convicted (on his guilty plea) and on 21 April 2011 was sentenced to 24 months imprisonment suspended for two years with an unpaid work requirement. The extradition hearing then commenced on 3 June 2011. There was then a single issue, namely whether the EAW was invalid because it had not been issued for the purpose of his being prosecuted, as required by section 2(3)(b) of the2003 Act. Judgment on that issue was due to be given on 28 July 2011 but the respondent did not answer to his bail. Inquiries revealed that he was in custody on remand for alleged offences of causing grievous bodily harm with intent and an offence under the Firearms Act 1968. The extradition proceedings were again adjourned.
  9. The respondent was eventually acquitted of those offences on 19 March 2015 following a trial at Bristol Crown Court. Only then could the extradition proceedings continue.
  10. The proportionality argument successfully advanced before the District Judge rested on the submission that for much of the time in the intervening period of nearly four years the respondent was subject to bail conditions in the extradition proceedings which included a curfew subject to electronic monitoring. He spent some time on remand in custody pending trial for the serious offences, but it appears was released when custody time limits expired. At all events, for a protracted period the respondent was subject bail conditions relating to curfew in both sets of proceedings. The essence of the argument was that despite the evident seriousness of the alleged offending, his extradition would be disproportionate for the purposes of section 21A of the 2003 Act because (a) others convicted in connection with this conspiracy had received sentences of two years' imprisonment, but suspended; and (b) the respondent had been on curfew for so long; that (c) in reality he had served any "likely penalty".
  11. The evidence of the respondent's bail history was provided in his own statement and accepted by the District Judge. His account is now known to have been inaccurate. He said that he had been subject to an electronically monitored curfew between 22.00 and 06.00 from 4 October 2010 until 8 July 2011, when he went into custody for the other matters. He said he was released from custody on 3 February 2012 and thereafter subject to an electronically monitored curfew between 22.00 and 07.00 until the extradition hearing. The respondent indicated that his curfew had been lifted on a few occasions to enable him to attend identified family related events. His statement is silent about the coexistent bail conditions in the Crown Court proceedings. The significance of increasing the curfew to nine hours each day (which we were told was done at the instigation of the respondent's extradition lawyers when they realised that the a longer curfew was in place in the criminal proceedings) was that by virtue of section 240A of the Criminal Justice Act 2003, had he been convicted at Bristol Crown Court and sentenced to a term of imprisonment, half of the period spent subject to that longer curfew would have counted against that sentence so long as it was also subject to electronic monitoring. In the language of the 2003 Act a "qualifying curfew" is one of nine hours a day or more but credit against sentence follows only if it satisfies the "electronic monitoring condition". To qualify for credit against sentence the curfew must have been a condition of bail in those proceedings.
  12. It is common ground that section 240A does not directly apply to extradition proceedings.
  13. It is correct that the eight hour curfew was first imposed on 4 October 2010. It appears that the curfew technically remained in place even whilst the respondent was in custody. It may well be that the extradition court was unaware of what was going on. There is a record that bail was revoked on 22 November 2011 but on 20 December 2011 it was once again granted subject to the eight hour curfew (without monitoring), albeit that the respondent was in custody until 3 February 2012. Contrary to the evidence of the respondent the records from Westminster Magistrates' Court show that the eight hour curfew continued until 14 January 2013 when it was increased to nine hours. Whatever may have been the position in the equivalent Crown Court bail conditions, the curfew imposed as a bail condition in the extradition proceedings was not ordered to be electronically monitored until 16 December 2014.
  14. This summary of the true position is derived from the bail records which are before us, but do not appear to have been produced to the District Judge. It demonstrates that the District Judge was mistaken, entirely understandably, in thinking that the respondent had been on a curfew which, had he been sentenced for an offence in England and Wales, would have been a qualifying electronically monitored curfew between 3 February 2012 and 14 August 2015, when the District Judge gave his reserved judgment. First, the condition was not extended to nine hours until almost a year later than indicated by the respondent. Secondly, the extradition curfew was not subject to a condition of monitoring until approaching two years later.
  15. Section 21A and Proportionality

  16. The extradition hearing took place on 30 July 2015. The issue relating to proportionality and the electronic curfew had been raised by the respondent's solicitors shortly after his acquittal. It was argued on behalf of the respondent, and described by the District Judge as the high point of the argument, that he had been subject to a "qualifying curfew … equating to 638 days" at the date of the hearing. Since in England prisoners are generally released after serving half of their sentence this was equivalent to a domestic sentence of almost four years. That was very close to the maximum available in Spain, yet the indications were he would receive much less than that and that any sentence might be suspended. The District Judge felt
  17. "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."
  18. Miss Collins submits that the District Judge was not only mistaken in his calculations relating the curfew, but that he was wrong as a matter of principle to credit the curfew in the way he did effectively as if the respondent faced being sentenced in this jurisdiction. She drew our attention to article 26 of the Council Framework Decision of 13 June 2002 (which underpins the EAW system). That provides that the issuing Member State must deduct any time spent in custody arising from the execution of an EAW from any custodial sentence. It says nothing about how to treat curfews or the impact of other bail conditions. She refers to well-known jurisprudence which cautions against second-guessing sentencing policy in other European countries or assuming that it will be the same as here: e.g. Poland v Celinski [2015] EWHC 1284 (Admin) at [13].
  19. Section 21A(3) in terms provides that only three factors may be considered by the court in deciding whether extradition would be disproportionate. The material factor for the purposes of this part of the appeal is "the likely penalty" which would be imposed upon the respondent, were he to be convicted in Spain of the conspiracy. The EAW specified that the maximum penalty is four and half years. Section 240A has no application to the Spanish proceedings. Its relevance to the question of proportionality is limited to the way in which it might affect the likely penalty in Spain. There is no warrant for assuming that the Spanish court would adopt the same approach as an English Court to time spent on remand subject to a qualifying and monitored curfew. As it happens, the Court of Appeal Criminal Division has decided that defendants should benefit from the credit against their sentence pursuant to section 240A only if they satisfy the conditions both as to the period of the curfew and monitoring. It was not for the courts to rewrite the provision to apply it by analogy and more widely: R v Barrett 2010 1 Cr App (s) 87 p 572 (a 12 hour non-monitored curfew). That approach would be all the more appropriate when thinking about likely sentencing in a foreign jurisdiction.
  20. In my judgment, the District Judge was mistaken in approaching the likely sentence in Spain by assuming that the time he considered had been spent on a qualifying and monitored curfew (were section 240A to apply) should be credited against any custodial sentence eventually passed.
  21. Further information is now available from the Spanish authorities which demonstrates that there is no mathematical calculation for sentencing purposes regarding curfews (or indeed any provision of Spanish law equivalent to section 240A). The conditions attached to pre-trial bail may be taken into account by the sentencing court following conviction in determining the appropriate penalty. In that respect the position appears to be similar to the position here.
  22. Furthermore, the court records show that the curfew was both qualifying and monitored on a hypothetical basis from 16 December 2014, a period of only seven and a half months before the extradition hearing. The factual premise upon which the District Judge proceeded was, in any event, in error.
  23. It follows that the conclusion on proportionality cannot stand. It falls to this court to make its own assessment.
  24. The correct approach to section 21A was discussed in Miraszewski v Poland [2014] EWHC 4261 (Admin). The respondent points to information accepted by the District Judge that others involved in the conspiracy who have been sentenced have received suspended sentences of 2 years' imprisonment. Whether the same or a similar sentence would be likely in the respondent's case is very difficult to judge. Sentencing is necessarily a process finely tuned to the individual circumstances of the offender and the offence, or his role in the offending. The weighing of aggravating and mitigating factors in the case of co-defendants can lead to very different sentences for the same offence. The respondent is said to have been a major player in the conspiracy. He has a poor record of previous convictions but would seek to pray in aid personal mitigation arising from the health of his partner and the fact that he has young children. The sentence in this jurisdiction would be very much more severe. But even assuming that a suspended sentence would be the likely outcome in Spain, that fact could not, on its own, lead to a conclusion that extradition would be disproportionate. In the course of his discussion of section 21A(3)(b) in Miraszewski, Pitchford LJ said at [39]:
  25. "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."
  26. I would add that a non-custodial penalty may also entail a significant element of immediate punishment, beyond placing a defendant at risk of serving the sentence if he reoffends. Suspended sentences in many jurisdictions have conditions attached to them which have an additional penal character. In this jurisdiction we are familiar with requirements to carry out unpaid work, be subject to a curfew etc. Community penalties may similarly have a tough penal element. Furthermore, suspended sentences and community penalties may have a significant element of rehabilitation attached to them (for example an attendance centre requirement) with a view to reducing the risk of reoffending.
  27. In my judgment an offence alleging that an accused has played a leading role in a conspiracy to smuggle 800 kilograms of cannabis is without question one that it so serious that the public interest in prosecution leads to the conclusion that extradition would be proportionate, whether or not the penalty might be a suspended sentence.
  28. Section 12A

  29. Section 12A is a complex provision and couched in parts in negative terms. The background to its introduction is set out between [17] and [25] of the judgment of this court given by Aikens LJ in Kandola v Germany [2015] EWHC 629 (Admin). By reference to Re: Ismail [1999] 1 AC 320 he explained that a "cosmopolitan" interpretation of the terms "decision to charge" and "decision to try" was necessary so that such concepts should not be fixed by reference to domestic law procedures which are not replicated in Category 1 territories - see [26] and [27]. He continued:
  30. "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."
  31. The procedure in Spain is different from that in England and Wales. The police investigated the alleged conspiracy and, having completed their investigation, provided the evidence to the "Juez de Instrucción" (the Examining Magistrate). The decision whether to proceed to trial rests with the court. The state of the proceedings was described in a memorandum from Senior Judge Francisca Isabel Fernández Zapata dated 20 July 2015. We have the original Spanish version and a translation from the Spanish Court. The lead conspirator, Adam Lee Garvey, was extradited from the United Kingdom and produced before the court. That enabled the court to determine that the prosecution should proceed. A trial followed. Senior Judge Zapata continued:
  32. "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. "
  33. The translation is far from perfect. A more accurate translation of the first sentence of paragraph 8 would be:
  34. "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."
  35. This document suggests that the accused must be brought before the court which decides whether a prosecution is to proceed to trial. It is apparent that the statement from Senior Judge Zapata was designed to deal in short order with the questions identified by Aikens LJ in Kandola at [34].
  36. The respondent produced evidence provided in advance of the extradition hearing concerning the fate of a fellow alleged conspirator, Keith Wilson-Campbell who was extradited to Spain in February 2011. It was served to support a submission that the only purpose of the extradition was to question the accused and therefore that the EAW was defective because it was not for the purpose of a prosecution (see section 2(3)(b) of the 2003 Act). The District Judge did not accept that argument and it has not been renewed in the cross appeal. Mr Wilson-Campbell refused to provide a statement or give evidence in the extradition proceedings, but a conversation he had with the respondent's solicitor, Michael Goold, was recounted in his statement. Mr Wilson-Campbell eventually appeared before the Examining Magistrate in Alicante, where he answered questions. His case was that he had been innocently caught up in the smuggling and was not in any way involved. The judge was satisfied by his account and in due course he was discharged.
  37. This evidence shows that part of the process when an accused is brought before the Examining Magistrate enables questions to be asked of him, and provides him with an opportunity to exculpate himself. The rules protecting an accused against self-incrimination, guaranteed by article 6 of the European Convention on Human Rights ["the Convention"], must be assumed to apply.
  38. Mr Newton's argument before the District Judge on behalf of the respondent was that (a) there were reasonable grounds to believe that neither a decision to charge nor to try him had been made (section 12A(1)(a)(i)); (b) that there were reasonable grounds to believe that his absence from Spain was not the sole reason for that failure (section 12A(1)(a)(ii)) because he could be questioned in the United Kingdom using Mutual Legal Assistance ["MLA"]; (c) that Spain had not proved that a decision to charge and a decision to try the respondent, had been made (section 12A(1)(b)(i)); and (d) that Spain had not proved that the sole reason for not taking those decisions was the respondent's absence from Spain (section 12A(1)(b)(ii)).
  39. The District Judge rejected those submissions. He accepted that there was an intention to prosecute, rather then simply question, the respondent. He concluded that the sole reason why matters had not progressed further was the respondent's absence from Spain. The communication from the Senior Judge proved these matters. In those circumstances he did not express a view on whether it appeared to him that there were reasonable grounds for believing that the respondent's absence was not the sole reason for a material decision or decisions not having been made.
  40. So far as the first of the propositions advanced on behalf of the respondent is concerned, it is common ground that a decision to try the respondent has not been made. We did not hear argument on when, for the purposes of section 12A, an accused is to be taken to have been "charged" in Spanish criminal proceedings. It may well be, applying a cosmopolitan interpretation, that a decision to hold the hearing before the judge would be regarded as a decision to charge because an accused is brought formally before a court and provided with an opportunity to answer the case against him. On any view, the hearing before the Examining Magistrate is necessary for the purpose of deciding whether the criminal proceedings should continue. Although the involvement of the court in Spain might have satisfied the charge aspect of section 12(A)(1), there were clearly reasonable grounds to believe that neither the decision to charge nor to try had been made.
  41. Attention then moves to whether there were reasonable grounds to believe that the sole reason for the failure to make those decisions was the respondent's absence from Spain. Kandola at [33] makes clear that the requested person must adduce sufficient evidence, which need not be elaborate, to give rise to the necessary belief. By contrast, assertion is not enough. The respondent produced no evidence at all on this issue before the District Judge. The matter was advanced by way of argument only. Mr Newton advanced his argument by reference to the facts of the various appeals considered in Kandola and submitted that they were analogous. Kandola was concerned with three German cases, two of which raised issues under section 21A(1). Under German law the next stage in the proceedings was an interview with the prosecutor (described as a hearing). It was accepted by the German authorities that MLA could, in an appropriate case, be used to undertake that part of the process. So, reasoned Mr Newton, since the decision by the Examining Magistrate in Spain whether to try the respondent involves a hearing at which he may give his account (if he wishes) the possibility of MLA must follow.
  42. To my mind, this approach falls within the rubric of "mere assertion" and did not give rise to the reasonable grounds necessary to trigger the need for the Spanish authorities to prove that the respondent's absence was the sole reason for the decisions not having been made.
  43. Miss Collins submits that the position has not changed. By contrast, Mr Newton relies upon the decision of this court in Arranz v Spanish Judicial Authority [2015] EWHC 2305 (Admin) as establishing that, as a general proposition, any person subject to a Spanish accusation EAW, whose proceedings in Spain have yet to complete the instrucción stage, may rely upon section 12A(1) unless the Spanish authorities provide evidence which explains why alternative methods of questioning available without return to Spain have not been tried. In short, he submits that the decision in Arranz provides the evidence needed to establish reasonable grounds to believe that absence from the jurisdiction is not the sole reason why the material decisions have not been taken. The judgment in Arranz was handed down on 31 July 2015.
  44. Arranz was an unusual case. It concerned an ETA terrorist who had been subject to three EAWs. The background, set out in the judgment of Lord Thomas of Cwmgiedd CJ between [2] and [19], shows a complex procedural and legal history which included the unfortunate reality that an undertaking given by the Spanish authorities to the English courts had not been complied with. The first warrant was a conviction warrant. It requested the return of Mr Arranz on the basis that he has been wrongly released from a long sentence for murder and terrorism. He was eventually discharged under that warrant because the European Court of Human Rights had condemned the law upon which Spain relied as being in breach of article 5 of the Convention. The second was an accusation EAW which sought Mr Arranz's extradition for terrorism and forgery. That was defective. He was discharged. The third EAW was a replacement for the second. The Senior District Judge ordered his extradition for the terrorism offence but not for forgery. Mr Arranz appealed to this court.
  45. There were six issues in the appeal, namely,
  46. "(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. The first of those issues was based upon the contention that the Spanish judicial authorities had responded to the outcry following Mr Arranz's release by taking every possible step to secure his return to Spain and in doing so had not acted in good faith and could not be expected to try him fairly. The abuse of process argument was founded on the limited circumstances in which the information set out in a warrant can be examined to establish whether it is fair and accurate: Zakrzewski v Poland [2013] 1 WLR 324. The third ground arose from the fact that the Spanish authorities did not withdraw the domestic warrants that underpinned the first EAW (despite an undertaking to do so) until during the course of the appeal proceedings. In the course of his consideration of the article 6 issue, Lord Thomas noted that the instrucción stage was not complete. That would have to wait until Mr Arranz had an opportunity to put his case [42]. The discussion relating to section 12A(1) of the 2003 Act begins at [45]. Mr Newton relies upon the very short summary of the evidence of an expert instructed by Mr Arranz, Mr Casanova, found in [48] of the judgment. Mr Casanova's evidence covered all aspects of the appeal on which Spanish law was relevant. The brief reference to his evidence relevant to section 12A(1) must be read in context of material provided by the Spanish authorities:
  48. "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."
  49. In [54] Lord Thomas affirmed one of the points made in Kandola, namely that a requested person was entitled to challenge a statement from the Judicial authorities that his absence was the only reason for the case not to have proceeded to charge or decision to try. He continued,
  50. "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."
  51. It is important to keep in mind the two stages relating to the question whether the sole reason for the decisions not have been made is the absence of the requested person from the jurisdiction. Stage 1 requires the requested person to provide evidence to establish reasonable grounds for the specified beliefs. If stage 1 is successfully navigated by the requested person, stage 2 requires the judicial authorities to prove either that the specified decisions have actually been taken or, if that is not possible, that the reason they have not is solely attributable to the requested person's absence. In Arranz Mr Casanova's evidence established the first stage but the response of the Spanish authorities failed to satisfy the second. The language used by Lord Thomas to my mind makes plain that he was not seeking to lay down a general rule governing the approach to arguments under section 12A(1) arising in the context of Spanish accusation warrants where the instrucción phase has yet to be completed. If Lord Thomas had been intending to lay down a rule of the sort contended for by the respondent I have no doubt he would have said so. The conclusion in that case depended upon its unusual circumstances and on the evidence as before the court.
  52. It follows that a requested person cannot rely upon the short summary of the evidence of Mr Casanova on this point as "evidence" to enable a district judge reasonably to believe that his absence from Spain is not the sole cause of the failure to make the decisions in question. It is unclear whether the evidence was of general application or conditioned by the nature of the case in Arranz; for example, whether what was contemplated was a single exchange as part of a Spanish court hearing, or a series of exchanges leading to proceedings in court before the Examining Magistrate. It does not meet the point made by Senior Judge Zapata that the respondent must be brought before the court in Spain. The summary of the evidence of Mr Casanova touches on questioning only.
  53. Two of the possibilities referred to by Mr Casanova, namely a simple video link and temporary surrender pursuant to section 21B of the 2003 Act would require the consent of the requested person. There is no indication in the evidence from the respondent that he would co-operate with any attempt of this sort. If a requested person wishes to suggest that his absence is not the sole reason for the lack of progress in the requesting state, he would at least need to give evidence of his willingness to co-operate in an alternative mooted procedure. Mr Newton did not rely upon either of these options as being realistic in this case. The general reference to MLA also requires further consideration. No submissions were developed about how it would operate, but Mr Newton indicated that what was in contemplation was a video link.
  54. Section 30 of the Crime (International Co-operation) Act 2003 ["CICA"] applies where the Secretary of State receives a request from the central authority of another country for a person in the United Kingdom to give evidence via video link in foreign criminal proceedings. Unless he considers it inappropriate to do so, the Secretary of State must nominate a court where the witness may be heard via a live television link in those proceedings. Paragraph 1 of Part 1 of Schedule 2 provides that "the nominated court has the like powers for securing the attendance of the witness to give evidence through the link as it has for the purpose of proceedings before the court." Paragraph 9 provides that "the witness cannot be compelled to give any evidence which he could not be compelled to give" in English criminal proceedings. Home Office Guidance (Requests for Mutual Legal Assistance in Criminal Matters - Guidelines for Authorities Outside of the United Kingdom – 2015) states:
  55. "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:
  56. Requesting authorities are reminded that although a witness may be compelled to attend court, in such circumstances he may not in fact give any evidence and thus they are expected to consider the utility of making requests when that is likely to happen. We heard no argument on the application of the CICA to the circumstances of this appeal. It would involve the possible use of coercive power (assuming an accused can be made the subject of a witness summons) to secure the attendance of a defendant in foreign criminal proceedings before an English court to answer questions which enable the foreign court to decide whether the proceedings should continue or be stopped. Whether what is proposed is free from legal difficulty in English law may need exploration in an appropriate case.
  57. Mr Newton's submits candidly that he is "seeking to exploit a failure" on the part of the Senior Judge Zapata to say whether she had considered taking evidence by live television link and, if so, why she decided not to. I am unpersuaded that the argument based on Kandola overcame the threshold to require an evidential response from the Spanish authorities. For the reasons I have given, I do not consider that the brief reference to the evidence of Mr Casanova in Arranz does so either. In any event, the evidence from the Senior Judge states that the respondent's physical presence is required before the court in Spain, a feature not touched on in that brief reference. The need for further particulars from the Spanish authorities in Arranz flowed from the evidence he adduced in the context of the unusual background to the third EAW. Even if the issue were approached through the second stage (namely whether the Spanish authorities had proved that the sole reason for the failure to proceed further was the respondent's absence from Spain), the District Judge was entitled (as he did) to take at face value the unequivocal statement from Senior Judge Zapata. Aikens LJ explained in Kandola at [34] that in the majority of cases a short statement would be adequate for these purposes. This is one such case. Arranz was not.
  58. Conclusion

  59. I would allow the appeal and dismiss the cross appeal and quash the order of the District Judge for the discharge of the respondent. By virtue of section 29(5)(b) and (c) of the 2003 Act the matter will be remitted to the district judge with a direction to proceed as required to do if he had decided the question in this appeal differently.
  60. Mr Justice Nicol

  61. I agree.

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