Powney v District Court of Ljubljana, Slovenia

Under section 12A of the Extradition Act 2003, a requested person challenging extradition must first show reasonable grounds for believing that a decision to charge or try has not been made, and that absence from the requesting territory is not the sole reason for that failure. The European arrest warrant must be read as a whole and construed cosmopolitanly, with proper respect given to statements by the issuing judicial authority. Under section 21A, Convention compatibility and proportionality are separate questions. The burden lies on the requested person to identify a less coercive measure that is appropriate in the circumstances, having regard to the seriousness of the allegation and likely penalty. The possibility of such a measure is only one factor in proportionality.

The appellant appealed against a district judge’s order for his extradition to Slovenia to face prosecution for alleged timeshare fraud. The European arrest warrant stated that the procedure was at the judicial-investigation stage and that no verdict had been delivered. After the district judge’s decision, the Slovenian authorities supplied further information stating that court investigation had begun against the person charged, but that his absence had prevented preliminary questioning and later procedural steps.

The appeal concerned whether the warrant and further information gave reasonable grounds to believe that decisions to charge and try had not been made under section 12A of the Extradition Act 2003, and whether extradition was disproportionate or incompatible with Convention rights under section 21A.

The appeal was dismissed. No error of law was shown in the district judge’s decision to order extradition.

1. Section 12A. The default position in Kandola v Germany [2015] EWHC 619 (Admin) did not apply because the appellant had raised a challenge. Nevertheless, he had to show reasonable grounds for believing both that one of the decisions to charge or try had not been made and that his absence was not the sole reason for that failure. Failure at the first stage made consideration of the second unnecessary.

2. The warrant had to be read as a whole and given a cosmopolitan construction. Its preamble was not conclusive in every case, but could not be ignored. The warrant’s description of judicial investigation and the absence of a verdict was consistent with the accusation having proceeded to the court stage, with decisions to charge and try already made. The introductory words in Box E added little, but any error in the district judge’s interpretation of them did not affect the result.

3. The further information, read as a whole, referred repeatedly to the person charged and to court investigation by an investigating judge. It was inconsistent with the suggestion that Slovenia remained undecided whether to prosecute. The appellant therefore failed to establish reasonable grounds under section 12A(1)(a)(i). He would also have failed under section 12A(1)(a)(ii), since no basis had been identified for believing that his absence was not the sole reason for any failure to make the decisions.

4. Section 21A. Convention compatibility and proportionality were distinct questions, although overlapping factors could be relevant to both. For proportionality, the specified matters in section 21A(3) had to be considered. The allegation was serious, a custodial sentence was likely if proved, and no less coercive measure had been shown to be appropriate. The burden was on the requested person to identify an appropriate alternative, not merely a measure theoretically available. It was unnecessary for the requesting authority to provide a detailed account of its decision-making in every case, and the possibility of a less coercive measure was not decisive.

5. The appellant advanced no substantial separate Article 8 point. The high public interest in honouring extradition arrangements supported the conclusion that extradition was compatible with Convention rights and proportionate.

The second ground of appeal was rejected, and the order for extradition stood.

1. Westminster Magistrates’ Court. The appellant was arrested under a European arrest warrant and remanded pending the extradition hearing.
2. District Judge Coleman. On 11 May 2015, the district judge rejected challenges under sections 2, 12A and 21A of the Extradition Act 2003 and ordered extradition to Slovenia.
3. High Court (Administrative Court). The appeal was dismissed. The court held that the district judge had made no error of law.