Puceviciene v Lithuanian Judicial Authority

For the purposes of section 12A of the Extradition Act 2003, decisions to charge and try require a cosmopolitan and functional interpretation. They need not be formal, final or irrevocable. A conditional decision remains sufficient where the requesting authority has decided to proceed to trial, subject to an interview or later review.

The authority’s explanation of its procedure and decisions should ordinarily be accepted unless clear evidence establishes bad faith or impropriety. Whether mutual legal assistance could have been used is irrelevant to the section 12A bar. Any consensual pre-extradition interview should instead be pursued under section 21B.

Three conjoined appeals concerned accusation European Arrest Warrants and the construction of section 12A of the Extradition Act 2003. Lithuanian authorities sought Vanda Puceviciene for alleged fraud. German prosecutors sought Andreas Conrath for alleged fraud and theft. Czech authorities sought Frantisek Savov for alleged tax fraud and money laundering.

District Judge McPhee ordered Puceviciene’s extradition. Senior District Judge Riddle discharged Conrath because he was not sure that decisions to charge and try had been made or that absence from Germany was the sole reason for any failure. The same judge ordered Savov’s extradition after finding that both decisions had been made.

The central questions were how foreign procedural decisions should be characterised under section 12A, when their existence should be assessed, and whether failure to use mutual legal assistance could prevent absence from being the sole reason for an outstanding prosecution decision.

1. Disposition. Puceviciene’s appeal was dismissed. The German prosecutor’s appeal in Conrath was allowed. Savov’s appeal was dismissed.

2. Section 12A of the Extradition Act 2003 requires a cosmopolitan and functional assessment of the requesting state’s procedure. The court must focus principally on whether the relevant decision-maker has decided to take the accused to trial. Neither a formal charge nor a trial-ready case is required. A decision may be informal, conditional or subject to review, including review following the accused’s interview.

3. A decision to charge exists when the evidence is sufficient under the relevant system to make the allegation that the requested person committed the offence. A decision to try exists when the competent police authority, prosecutor or judge has decided to proceed with taking that person to trial. In many systems the decisions may be simultaneous.

4. The requesting judicial authority must be given a short explanation of the English statutory concepts so that it can describe their functional equivalents and the stage reached under its own procedure. Its statement that the relevant decisions have been made, or that absence is the sole reason why they have not been made, should ordinarily be accepted. Clear evidence of bad faith or impropriety is required before the extradition court goes behind that statement. Expert evidence on foreign procedural law should be admitted only very rarely.

5. The relevant time is the date of the District Judge’s extradition decision and, where the issue arises, the appellate decision. Section 12A does not fix the inquiry at the date when the European Arrest Warrant was issued.

6. The treatment of mutual legal assistance in Kandola v Generalstaatwaltschaft, Frankfurt, Germany [2015] EWHC 619 (Admin) was clearly wrong and should no longer be followed. Section 12A asks why the competent authority has not made the relevant decision. It does not authorise scrutiny of whether another procedure could have enabled the authority to act. Parliament provided a separate, consensual mechanism for pre-extradition communication in section 21B. Only rare evidence of a breakdown in mutual trust, bad faith or abuse could justify going behind the authority’s answer.

7. Puceviciene’s warrant and supporting information disclosed no reasonable grounds for believing that the decisions had not been made. In any event, Lithuania proved that her absence was the sole reason for any outstanding decision. In Conrath, a cosmopolitan reading established that the German prosecutor had decided to indict and try him immediately upon surrender. In Savov, the Czech prosecutor’s evidence established an existing decision to submit an indictment after interrogation and defence access to the file.

• High Court (Divisional Court): In [2016] EWHC 1862 (Admin), dismissed Puceviciene’s and Savov’s appeals and allowed the German judicial authority’s appeal in Conrath.
• Westminster Magistrates’ Court: District Judge McPhee ordered Puceviciene’s extradition on 28 September 2015. Senior District Judge Riddle discharged Conrath on 13 November 2015 and ordered Savov’s extradition on 2 July 2015.