Ahmed v Public Prosecutor of Landshut Germany

Under section 12A of the Extradition Act 2003, extradition is barred only where the required decisions to charge or try have not been made, there are reasonable grounds to believe that the requested person’s absence is not the sole reason, and the requesting authority cannot prove the statutory alternative to the criminal standard. The court must examine the substance of the requesting state’s prosecutorial stage, even where its procedure contains no separate formal decision to charge or try. A requesting authority’s explanation for not using mutual legal assistance need only be coherent and intelligible. The court should not review its merits or preferred investigative strategy absent bad faith or exceptional circumstances.

The appellant appealed against a District Judge’s order extraditing him to Germany under a European Arrest Warrant to face allegations of fraud concerning the hire of two expensive cars. Germany had not formally charged him or made a separate formal decision to try him. The central issue was whether extradition was barred under section 12A of the Extradition Act 2003 because decisions to charge and try had not been made for a reason other than his absence from Germany.

The appeal also raised whether Germany should have used mutual legal assistance to examine him in the United Kingdom and whether the District Judge should have adjourned the proceedings under section 21B.

1. Appeal dismissed. The District Judge had misstated the burden at the first stage of section 12A, but had reached the correct conclusion.
2. Section 12A is concerned with the substance of the prosecutorial stage reached, not merely with the existence of a formal decision bearing that name. Where the requesting state’s procedure has no separate formal decision to try, the court must identify the equivalent stage in that procedure.
3. In German procedure, examination of the accused marks the end of the investigation, charging follows, and the effective decision to try is concomitant with charging. The evidence showed that the prosecutor had decided that the appellant would be charged and tried once present in Germany. His absence was the sole reason why the formal stages had not occurred.
4. The prosecutor had considered mutual legal assistance and rejected it because it would not advance the proceedings, which required the appellant’s presence in Germany. The court applied Kandola v Generalstaatsanwaltschaft Frankfurt, Germany [2015] EWHC 619 (Admin) and treated Spanish Judicial Authority v Arranz (No 3) [2015] EWHC 2305 (Admin) as context-dependent. The court was not entitled to review the wisdom of the prosecutor’s decision absent bad faith, a strong basis for doubt, or exceptional circumstances.
5. The refusal to adjourn under section 21B afforded no ground of appeal. The request was late, and the District Judge could properly conclude that the requesting authority’s answer was already known. The principles in Duncan v Presiding Magistrate, Malaga, Spain [2015] EWHC 3466 (Admin) were applicable.

• High Court (Administrative Court): The appeal against the District Judge’s order dated 28 September 2015 was dismissed. The extradition order remained effective.