Kandola & Ors v Generalstaatwaltschaft Frankfurt, Germany & Ors

Section 12A of the Extradition Act 2003 creates a two-stage bar to extradition under an accusation European arrest warrant. The requested person must first raise reasonable grounds that a decision to charge or try has not been made, and that absence from the requesting state is not the sole reason. The requesting state must then prove that both decisions have been made or that absence is the sole reason for their absence.

The provision must be construed cosmopolitanly, while respecting individual liberty. A clear statement in the warrant may ordinarily be relied upon. Extradition was disproportionate under Article 8 where separation would have a profound effect on dependent children. Particularity under section 2(4)(c) is assessed by the practical adequacy of the warrant, not by indictment-level standards.

Three appeals arose from extradition orders made by District Judges at Westminster Magistrates’ Court on accusation European arrest warrants issued by authorities in Germany and Italy.

The common issue was whether extradition was barred by section 12A of the Extradition Act 2003 because the requesting authority had not decided to charge or try the requested person, and absence from the requesting state was not the sole reason.

Mr Kandola also challenged the validity and particularity of his warrant and whether the alleged conduct constituted extradition offences. Ms Droma relied additionally on Article 8 and statutory proportionality. Mr Ijaz challenged the particularity of his warrant and relied on double jeopardy.

1. Section 12A. The court held that the provision operates in two stages. At the first stage the requested person must show reasonable grounds for believing that a decision to charge or try has not been made and that absence from the requesting state is not the sole reason. At the second stage the requesting state must prove, to the criminal standard, that both decisions have been made or that absence is the sole reason for their absence. The warrant should ordinarily be trusted where it speaks clearly, although extraneous evidence may be considered where the position is unclear. Elaborate expert evidence should generally be avoided.
2. Mr Kandola established reasonable grounds at the first stage, but Germany proved that the absence of a pre-charge examination in Germany, and the rejection of mutual legal assistance because of flight risk, meant that absence was the sole practical reason. His section 12A challenge therefore failed.
3. Ms Droma established both limbs of the first stage. Germany failed to explain coherently why mutual legal assistance had not been used. Her extradition was therefore barred by section 12A.
4. Mr Ijaz established the first-stage requirements, and Italy accepted that investigation remained incomplete. Italy could not prove either statutory alternative. His extradition was barred by section 12A.
5. The Kandola warrant was an accusation warrant when read as a whole. The reference to an investigational arrest warrant was consistent with the cosmopolitan operation of German criminal procedure. The warrant contained sufficient particulars under section 2(4)(c), and the alleged conduct constituted extradition offences.
6. The Ijaz warrant satisfied section 2(4)(c) as to count 2 but not count 1. Count 1 did not identify the additional conduct said to account for its wider period and substantially greater loss. The double-jeopardy challenge failed because the German proceedings concerned German offences, not the Italian fiscal conduct.
7. The District Judge applied the wrong Article 8 test in Ms Droma’s case by referring to a very high threshold. The correct approach is proportionality, balancing the public interest in extradition against interference with private and family life. On the evidence concerning the three children, extradition would be disproportionate.
8. Mr Kandola’s appeal was dismissed and his extradition order confirmed. Ms Droma’s appeal was allowed on sections 12A and 21A(1)(a), and she was discharged. Mr Ijaz’s appeal succeeded as to count 1 and section 12A; he was discharged on both counts.

• Westminster Magistrates’ Court: District Judges Snow and Devas made extradition orders, rejecting the appellants’ challenges.
• High Court (Administrative Court): The appeals were heard together. The court confirmed Mr Kandola’s extradition, discharged Ms Droma, and discharged Mr Ijaz on both counts.