Prenga v Court of Florence, Italy

Under section 12A of the Extradition Act 2003, the court must identify whether the competent authority has decided to charge and to try the requested person. The decision to try must be made by the person with institutional competence under the requesting state’s procedure. An intention by a prosecutor to seek committal is not necessarily that decision where a different judicial authority must decide committal. Informality or conditionality does not prevent a decision from qualifying. On appeal, later evidence may be admitted where it is credible, could not have been obtained earlier, and justice requires its admission. The section 12A question may therefore be assessed at the appeal stage.

The appellant challenged an order made by District Judge Tempia on 6 August 2015 for his extradition to Italy to face serious drug-trafficking allegations. The appeal was confined to section 12A of the Extradition Act 2003, namely whether the Italian authorities had decided to charge and try him. The District Judge held that the prosecutor’s intention to request committal to trial amounted to a decision to try.

By the time of the appeal, the appellant had been committed to trial and further evidence established that the relevant decisions had been made. The central issues were whether the District Judge had identified the authority competent to decide to try, and whether the later evidence could be admitted on appeal.

1. Appeal dismissed. The District Judge’s conclusion that extradition was not barred by section 12A was correct, although the route by which she reached it was legally erroneous.
2. Section 12A requires attention to the decisions to charge and to try. A decision may be informal, conditional or contingent, but it must be made by the authority having institutional competence under the requesting state’s procedure. On the uncontradicted expert evidence, the ordinary Italian procedure applied. The prosecutor could decide to charge, but the GUP, not the prosecutor, was competent to decide to try.
3. The District Judge was entitled to conclude that the decision to charge had been made. She was wrong to treat the prosecutor’s intention to take the appellant to trial as a decision to try, and had failed to give proper weight to the evidence distinguishing the ordinary procedure from the immediate procedure.
4. Had the District Judge applied Kandola v Germany with the benefit of the later authorities, she could have confined her attention to the European Arrest Warrant. The warrant and the order for pre-trial precautionary custody showed that the evidence had been assessed as sufficiently strong for the immediate procedure to apply if the appellant were returned promptly. The order could therefore be treated as a contingent decision to try.
5. Fresh evidence showing that the decisions to charge and try had subsequently been made was admitted. It was credible, could not reasonably have been obtained for the first-instance hearing, and was capable of affecting the appeal. Excluding it would have been contrary to the interests of justice and would have caused further delay. The section 12A bar was properly examined at the appeal stage.

The appeal failed and was dismissed. Consequential orders were left for written submissions.

• High Court (Administrative Court): [2016] EWHC 3002 (Admin) dismissed the appeal against the District Judge’s extradition order, while recognising that the first-instance reasoning had been flawed.
• Westminster Magistrates’ Court: District Judge Tempia ordered extradition on 6 August 2015.