Carpenter v Pre-Trial Investigation Court Milan, Italy

Under section 12A of the Extradition Act 2003, the standard wording of an accusation European Arrest Warrant ordinarily supports an inference that decisions to charge and try have been made. That inference does not arise where the warrant deliberately omits the prosecution wording and instead seeks detention under a pre-trial custody order issued for an investigatory purpose. In that situation, the warrant may provide reasonable grounds for believing that no decision to try has yet been made. The court must then proceed to the second statutory stage, at which the requesting authority bears the prescribed burden. In forum cases, the judge must apply only the matters specified in section 19B. A prosecutor’s absence of any current intention to prosecute in the United Kingdom is neutral unless it amounts to the statutory belief that the United Kingdom is not the most appropriate jurisdiction. Article 8 rights must be balanced against the weighty public interest in extradition.

Stephen Carpenter appealed against an order made by District Judge Blake at Westminster Magistrates’ Court directing his extradition to Italy under a European Arrest Warrant. He faced allegations of fraudulent bankruptcy and self-laundering arising from transactions involving an Italian company, an English company and a Hungarian company.

Four grounds remained on appeal: dual criminality, absence of a decision to try under section 12A of the Extradition Act 2003, forum under section 19B, and interference with Article 8 rights. The central issue under section 12A was whether the wording of the warrant and accompanying documents provided reasonable grounds for believing that the competent Italian authorities had not yet decided to try him.

1. Dual criminality. The allegations, read as a whole, alleged that Mr Carpenter acted dishonestly and in complicity with others to extract assets from the bankrupt Italian company and transfer money to Hungary. The conduct would constitute conspiracy to defraud in England. The second offence corresponded to money laundering under section 327 of the Proceeds of Crime Act 2002. This ground was rejected (paras [13]-[16]).
2. Section 12A. The statutory inquiry has two stages. First, the requested person must raise more than a bare assertion to establish reasonable grounds for believing that a decision to charge or try has not been made. If that threshold is met, the requesting authority must prove at the second stage that both decisions have been made, or that any absence is solely attributable to the person’s absence (para [18]).
3. The usual accusation-warrant wording supports an inference of a decision to charge and a contingent decision to try. Here, however, the prosecution wording had deliberately been removed. The warrant sought detention pursuant to a pre-trial custody order made by an investigation judge. Read with the other documents, it indicated that the investigation had concluded but that a preliminary hearing judge had yet to decide whether the case would proceed to trial. The first stage of section 12A was therefore satisfied (paras [27]-[32]).
4. Forum. The district judge properly applied the statutory factors in section 19B. Italy was the appropriate forum because the alleged fraud, victims and most co-defendants were located there, and a single trial was desirable and practicable. The absence of a current intention by UK prosecutors to prosecute was neutral under section 19B(3)(c), but relevant to the desirability of proceedings occurring in one jurisdiction under section 19B(3)(f) (paras [34]-[40]).
5. Article 8 and fresh evidence. The public interest in extradition remained weighty and outweighed the family, health and business consequences relied upon. The proposed fresh evidence was neither admissible under the applicable test nor materially persuasive (paras [41]-[46]).
6. The appeal succeeded only on section 12A. The district judge should have proceeded to the second stage. The parties were directed to file written submissions on the appropriate relief within 14 days (paras [47]-[48]).

• High Court (Administrative Court): The Divisional Court rejected the challenges based on dual criminality, forum and Article 8, but held that the first stage of section 12A was satisfied and directed submissions on the appropriate relief.
• Westminster Magistrates’ Court: District Judge Blake ordered extradition to Italy and rejected the challenges advanced before him.