Doci v The Court of Brescia, Italy & Ors

For the purposes of section 12A of the Extradition Act 2003, a decision to charge or try need not be formal, final or irrevocable. The court must adopt a practical and purposive, or cosmopolitan, approach suited to the requesting territory’s procedure. A decision exists when the competent authority has decided, on sufficient evidence, to make the allegation and proceed towards trial. A clearly expressed intention to make a decision is insufficient, but a contingent decision may qualify. The standard wording of an accusation European Arrest Warrant ordinarily suffices unless the warrant itself gives reasonable grounds for believing that the decisions have not been made. Mutual legal assistance and alternative prosecutorial procedures are generally irrelevant to whether the statutory decisions have been taken.

Two appellants challenged decisions of District Judges at Westminster Magistrates’ Court ordering their extradition to Italy under accusation European Arrest Warrants. Doci argued that no Italian authority had decided to charge or try him because the investigation and formal committal stages had not occurred. He also relied on double jeopardy and abuse of process arising from an Italian firearm conviction and the proposed drug-trafficking charges.

Motiu argued that the wording of his European Arrest Warrant and the precautionary custody order created reasonable grounds for believing that the decisions required by section 12A had not been made. The court considered the earlier Divisional Court decision in Puceviciene v Lithuanian JA and related cases.

1. Section 12A. The appeals were dismissed. Section 12A is compatible with the Framework Decision and must be interpreted practically across different criminal justice systems. A formal charge or formal committal is unnecessary. A decision may be contingent or revocable, but an intention to decide is not itself a decision.
2. Doci. The public prosecutor’s application for precautionary measures constituted the decision to charge. It identified the allegations and was supported by evidence sufficient to show a high likelihood of conviction. The GIP’s decision that it would issue a decree for immediate trial once the prosecutor made the request constituted the decision to try. The fact that formal steps depended on Doci’s presence in Italy did not prevent the decisions from having been made.
3. The absence of mutual legal assistance interviews, or the possibility of using the ordinary rather than immediate procedure, did not create another reason for the absence of a decision. Section 12A does not require the extradition court to investigate the merits of foreign prosecutorial choices or require every alternative process to be pursued.
4. Motiu. The standard European Arrest Warrant wording seeking surrender for the purpose of conducting a criminal prosecution sufficed. Nothing in the warrant created reasonable grounds for believing that the decisions to charge and try had not been made.
5. Double jeopardy and abuse of process. The Italian prosecutor’s assurance that the firearm aggravating circumstance would not be charged was accepted. The extradition remained sought for the two unaggravated offences. There was no uncertainty, invalidity, double jeopardy or risk of breach of specialty.

1. High Court (Administrative Court): appeals against decisions of District Judges sitting at Westminster Magistrates’ Court on 16 March and 4 April 2016. The extradition orders were upheld and both appeals were dismissed.