Trenk, R (on the application of) v District Court In Plzen-Mesto, Czech Republic

For extradition under Part 1 of the Extradition Act 2003, the warrant must establish both that the person is accused of an offence and that surrender is sought for prosecution. A formal notice described as instituting prosecution does not necessarily mean that prosecution has begun in substance. The court must examine the foreign procedure and the evidence explaining the stage reached. A case remains investigative where the suspect is sought for further questioning so that the prosecuting authority can decide whether charges should be brought. The court should construe the legislation broadly and purposively, applying a cosmopolitan approach to foreign criminal procedures, but that approach cannot displace the statutory requirements.

Mr Trenk challenged a District Judge’s decision of 18 December 2008 ordering his extradition to the Czech Republic under a European Arrest Warrant. The warrant concerned an alleged swindling or credit-fraud offence. The Czech authorities described him as an accused person and stated that surrender was sought for prosecution, but also explained that the investigation remained incomplete, that he had not been charged, and that he was required for questioning before the prosecuting attorney could decide whether charges should be brought.

The central issue was whether the proceedings had crossed the boundary from investigation into prosecution for the purposes of section 2 of the Extradition Act 2003.

1. The appeal was allowed. The District Judge had reached a conclusion that he should not have reached. Mr Trenk was to be discharged under section 27(5)(a) of the Extradition Act 2003.
2. Section 2 required the Part 1 warrant to establish both that Mr Trenk was accused in the requesting territory of the specified offence and that the warrant had been issued for the purpose of prosecution. Although he could properly be described as an accused, the second requirement was not established.
3. The court adopted the broad, generous and purposive construction described in Ismail [1999] AC 320. It also applied a cosmopolitan approach, recognising that foreign criminal systems should not be judged by an English and Welsh procedural model.
4. The Czech materials nevertheless showed that the investigation and preparatory procedure remained incomplete. The police had not completed questioning Mr Trenk. The prosecuting attorney had not evaluated the evidence and decided whether the suspicion justified bringing charges. Under the Czech procedure, the formal institution of prosecution was therefore the initiation of an investigatory process, not the substantive commencement of a prosecution.
5. The European Arrest Warrant and the Czech authorities’ statements could not, by themselves, determine the issue. The evidence showed that surrender was sought to enable further questioning and to allow a decision whether charges could or should be brought. Mr Trenk’s absence from the Czech Republic did not justify departure from the statutory requirements.
6. The case was materially different from McCormack [2008] EWHC 1453 (Admin), where the police and public prosecutor had concluded their investigations and passed the matter to the examining magistrate.

• High Court (Administrative Court): allowed the appeal against the District Judge’s extradition order and ordered the appellant’s discharge under section 27(5)(a) of the Extradition Act 2003.