Ali v Public Prosecutor of Bavaria Germany

An accusation European Arrest Warrant must be construed as a whole and in its civil-law context. A reference to an investigation arrest warrant does not, without more, show that extradition is sought merely to question a suspect where the warrant identifies the person as accused and requests surrender for criminal prosecution. The court should avoid an unduly narrow English reading of terminology used in a foreign criminal process. Article 8 family and private life claims must be balanced against the United Kingdom’s treaty obligations. The judgment also indicates that requesting states may assist future cases under section 12A of the Extradition Act 2003 by identifying the provisions establishing that the person has been charged.

The appellant challenged an order for his extradition to Germany made by District Judge Evans on 1 April 2014. The European Arrest Warrant concerned alleged participation in missing trader intra-community fraud and tax evasion. Four grounds were advanced below, but only compliance with section 2 of the Extradition Act 2003 and Article 8 of the Convention were pursued on appeal.

The appellant argued that the warrant was not an accusation warrant because the underlying judicial decision was described as an investigation arrest warrant. He also relied on his family circumstances. The central issues were whether the warrant sufficiently stated that it was issued for prosecution and whether extradition would be disproportionate.

1. Appeal dismissed. The warrant complied with section 2(3) of the Extradition Act 2003. The statutory requirement is assessed from the face of the warrant, construed as a whole.
2. The Framework Decision contemplated surrender for two purposes: prosecution or execution of a custodial sentence. Although the warrant used wording leaving both possibilities open, it was plainly not a conviction warrant. It therefore operated as an accusation warrant. The description of the appellant as “defendant” was consistent with his being the subject of criminal prosecution in a civil-law system.
3. The expression “investigation arrest warrant” had to be read in its German procedural context. The term untersuchungshaftbefehl referred to a warrant issued at the start of the criminal process. An English court should not infer that the warrant sought extradition merely for questioning where the document otherwise identified an accusation and requested surrender for prosecution. The court consequently differed from the conclusion reached in Khan and Ors v Prosecutor’s Office Bavaria, Germany [2014] EWHC 1704 (Admin).
4. Section 12A of the Extradition Act 2003 was noted. In appropriate cases, requesting states using civil-law procedures should identify the provisions demonstrating that the individual has been charged rather than merely being sought for questioning.
5. The Article 8 challenge failed. The appellant’s family circumstances did not outweigh the United Kingdom’s obligation to comply with its treaty commitments. Lord Justice Aikens agreed with the judgment.

• High Court (Administrative Court): appeal dismissed. The court upheld the extradition order made by District Judge Evans on 1 April 2014.
• District Judge Evans: ordered extradition in a reserved judgment dated 1 April 2014.
• District Judge Alison Rose: determined on 29 October 2013 that the appellant was the person identified in the warrant.