Jaworski v Einhaus Oberstaatsanwalt of the Staatsanwaltschaft Frankfurt (Germany)

Section 12A of the Extradition Act 2003 operates in two stages. At the first stage, the requested person must establish reasonable grounds for believing both that a decision to charge or try has not been made and that absence from the requesting state is not the sole reason for that omission. Only then does the burden pass to the requesting state, which must prove the statutory alternative to the criminal standard.

If the requested person fails at the first stage, the court may proceed on the basis that the relevant decisions have been made. Clear wording in a European Arrest Warrant may be sufficient, although extraneous material may be considered where the warrant is unclear. An immaterial misdirection does not require an appeal to succeed where the correct application of the law would produce the same result.

The applicant appealed, with permission, against the Senior District Judge’s order of 29 January 2016 directing his extradition to Germany under an accusation European Arrest Warrant. He was sought in connection with alleged gang thefts involving vehicles taken from Germany to Poland.

The appeal concerned the application of section 12A of the Extradition Act 2003. The applicant argued that the District Judge had misunderstood the guidance in Kandola v Germany [2015] EWHC 619, wrongly increasing the burden on him at the first stage and placing excessive weight on the warrant. The central issue was whether the District Judge had erred in applying section 12A and, if so, whether the error affected the outcome.

1. Appeal dismissed. The applicant could not discharge the burden imposed at the first stage of section 12A of the Extradition Act 2003. The second stage was therefore not reached.

2. Section 12A involves two distinct stages. First, the requested person must establish reasonable grounds for believing that at least one decision—to charge or to try—has not been made, and that the person’s absence from the requesting state is not the sole reason for the failure. If both negatives are established, the requesting state must then prove to the criminal standard that both decisions have been made or, where one or both have not been made, that absence is the sole reason.

3. The reference in Kandola v Germany [2015] EWHC 619 to a default position means that, absent a successful section 12A challenge, the court may proceed on the basis that the relevant decisions have been made. The expression was potentially unhelpful but did not alter the statutory burden. Where the European Arrest Warrant is clear, the judge need look no further. Where it is unclear, extraneous evidence may be considered.

4. The wording describing the applicant as an accused person prosecuted with others and as a main perpetrator supported the conclusion that decisions to prosecute and try had been made. The reference to continuing investigations did not establish reasonable grounds to believe otherwise, since arresting one participant might compromise investigations concerning others.

5. The District Judge had not given inappropriate weight to the European Arrest Warrant. Any error was at most an infelicity of expression and was immaterial because, on a correct application of the law, the same decision would have been reached. The extradition was to proceed in the ordinary course.

• High Court (Administrative Court): On 8 June 2016, the appeal against the Senior District Judge’s extradition order was dismissed.
• Senior District Judge: On 29 January 2016, ordered the applicant’s extradition to Germany under an accusation European Arrest Warrant.