Da Silva v German Judicial Authority

Section 12A of the Extradition Act 2003 requires a two-stage inquiry. The requested person must first establish reasonable grounds for believing that the requesting state has not decided to charge or try him and that his absence is not the sole reason. The requesting authority must then prove that the relevant decisions have been made, or that absence is the sole reason for their absence.

The provision must be construed cosmopolitanly. A decision to charge or try need not be final or irrevocable. An informal or provisional decision to prosecute may suffice, particularly where the requesting state’s procedure requires the suspect to be examined before the investigation is formally concluded. The issuing warrant may itself establish that the required stage has been reached.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order dated 14 September 2016 requiring his extradition to Germany for trial for fraud. He argued that the European arrest warrant showed only an investigation and did not establish decisions to charge or try him, as required by sections 2 and 12A.

The appellant relied on a German lawyer’s evidence concerning the unfinished investigation and the requirement under German law for examination of the accused. The central issue was whether section 12A was satisfied where the German authorities had not completed that examination and would not conduct it through mutual legal assistance in the United Kingdom.

1. Appeal dismissed. The District Judge’s decision to order extradition was correct. The German lawyer’s report was admitted, but it did not assist the appellant.
2. Section 12A requires two stages. First, the requested person must persuade the judge that there are reasonable grounds for believing that the competent authorities have not decided to charge or try him, or have made neither decision, and that his absence is not the sole reason. Secondly, the requesting authority must prove that both decisions have been made, or that the person’s absence is the sole reason for the missing decision.
3. The section must be construed with regard to differing continental systems. A final or irrevocable decision is unnecessary. Following the approach applied in Minister for Justice, Equality and Law Reform v Olsson [2011] 1 IR 384 and adopted in Savov and Others v Judicial Authorities of Lithuania, Germany and the Czech Republic [2016] EWHC 1862 (Admin), an informal or provisional decision to prosecute may satisfy the statutory requirement.
4. The warrant described an arrest for pre-trial custody, set out powerful prima facie evidence of fraud and was consistent only with a conclusion that prosecution would follow unless the appellant’s explanation caused the authorities to desist. It therefore demonstrated at least an informal decision to prosecute.
5. German procedure required examination of the accused before the investigation could formally conclude under sections 163a(1) and 169a of the German criminal procedure code. The German authority’s refusal to conduct an external examination through mutual legal assistance was a matter for that authority. The domestic court could not go behind it or require the investigation to be treated as concluded.
6. The reference to the appellant as a “suspect” did not show that the decision to charge or try had not been made. Even a person awaiting trial remains a suspect until conviction.
7. Even if section 12A(1) had not otherwise been satisfied, the evidence indicated that the appellant’s absence was the sole reason why prosecution had not progressed. The appeal was accordingly dismissed and certification was refused.

1. High Court (Administrative Court): On an appeal under section 26 of the Extradition Act 2003, Collins J dismissed the appeal against the District Judge’s order dated 14 September 2016.