Davis v Public Prosecutor of Landshut Germany

On an appeal under section 26 of the Extradition Act 2003, dual criminality must be established to the criminal standard. Where the requested offence is aiding and abetting a dishonest tax evasion offence, the allegation must involve knowledge that the dishonest evasion was taking place. An apparent inconsistency between the description of the assistance as intentional and a reference to acting recklessly may create sufficient doubt about the offence alleged and the required mens rea. In that event, the court must not order return. A fresh warrant is not precluded if the requesting state can clarify that the person is alleged to have knowingly and intentionally assisted the evasion.

The claimant appealed under section 26 of the Extradition Act 2003 against a District Judge’s decision dated 4 January 2013 ordering his return to Germany. The European arrest warrant alleged that he had aided and abetted, and attempted to aid and abet, evasion of German turnover tax through fictitious invoices issued by a company of which he was the shareholder and managing director.

The warrant described the assistance as intentional. Further information from the German authorities stated that he was suspected of endorsing possible tax evasion recklessly. The central issue was whether the alleged conduct, viewed against the available information, established dual criminality.

1. Appeal allowed. The claimant’s return was not permitted because dual criminality had not been established to the criminal standard.
2. German tax evasion appeared capable of amounting to an offence corresponding to tax evasion in England. However, the relevant allegation against the claimant was aiding and abetting. The translated German description stated that an abettor intentionally rendered aid to another’s unlawful act. In the context of dishonest tax evasion, nothing short of knowledge that the evasion was occurring would suffice.
3. The further information created an unresolved inconsistency. It maintained that the claimant could be prosecuted for intentional aiding and abetting, but concluded that he was suspected of endorsing possible tax evasion recklessly. Recklessness, understood in the English criminal context, did not necessarily establish the knowledge required for intentional assistance.
4. The claimant’s account was that he had no involvement with the company’s invoices or with the co-accused’s activities. The material also provided some support for that account. Since the court was required to apply the criminal standard, the ambiguity and evidential uncertainty meant that dual criminality was not proved.
5. The decision did not prevent the German authorities from issuing a fresh warrant if they could establish that the claimant could be prosecuted for knowingly and intentionally assisting the provision of invoices used to evade tax. Costs were ordered to be assessed.

• District Judge: On 4 January 2013, District Judge Coleman ordered the claimant’s return to Germany to face charges of evasion of tax.
• High Court (Administrative Court): The appeal under section 26 of the Extradition Act 2003 was allowed because dual criminality was not established to the criminal standard.