Fox v Public Prosecutor's Office of Frankfurt am Main Germany

For the purposes of section 12A of the Extradition Act 2003, a decision to try is made when the competent decision-maker has decided to proceed with taking the person to trial. The decision need not be formal, final or unconditional. It may be made while investigations continue and before an indictment is formally preferred.

The relevant decision-maker depends on the requesting state’s criminal procedure. Under the evidence concerning German procedure, the Public Prosecutor was competent to make the decision to try. The issue is therefore approached cosmopolitanly, having regard to the requesting state’s system rather than by imposing English procedural concepts.

The appellant appealed against two decisions of District Judge Tempia ordering extradition to Germany under section 12A of the Extradition Act 2003. The requests concerned allegations of aggravated tax evasion and had been issued by the Public Prosecutor’s Office of Frankfurt.

The appellant accepted that a decision to charge had been made, but argued that no decision to try had been made. He contended that, under German procedure, only the competent court could make that decision and that no indictment had yet been preferred or accepted for trial. The central issue was whether, on the evidence, the Public Prosecutor was competent to make the decision to try.

1. Appeal dismissed. The District Judge was entitled to conclude that the Public Prosecutor had made, and was competent to make, a decision to try the appellant.
2. Section 12A must be construed cosmopolitanly and purposively. The expressions “decision to charge” and “decision to try” must accommodate the criminal procedures of requesting states. The provision does not require the case to be trial-ready or require a formal procedural step.
3. A decision to try is made when the relevant decision-maker has decided to proceed with taking the defendant to trial. It may be informal, conditional or subject to review. Continuing investigations do not prevent such a decision from having been made.
4. The German proceedings were at the investigation stage, but that stage was not confined to investigation in a narrow sense. The Public Prosecutor could seek a domestic arrest warrant and issue an European Arrest Warrant for the purpose of conducting a criminal prosecution or pre-trial detention. Those steps supported the conclusion that a decision to charge and try had been made.
5. The German lawyer’s evidence was that the Public Prosecutor required a strong suspicion based on the evidence before seeking an arrest warrant. The appellant accepted that the Public Prosecutor had made a decision to try. There was no provision in the German Criminal Code showing that the Public Prosecutor lacked institutional competence to make that decision.
6. The absence of a bill of indictment did not alter the conclusion. Preferring an indictment would be clear evidence of a decision to try, but it was not a necessary precondition. The Italian decisions in Doci v Court of Brescia, Italy and Prenga v Court of Florence, Italy concerned different procedural systems and did not undermine the conclusions reached in the German cases.

Mr Justice Sweeney agreed with Lord Justice Hamblen.

• High Court (Administrative Court): appeals against District Judge Tempia’s decisions of 6 April 2017 and 31 August 2017 were dismissed. Extradition under section 12A of the Extradition Act 2003 was ordered.