Ahmed v Public Prosecutor of Landshut Germany [2016] EWHC 400 (Admin)

Case No CO/4705/2015[2016] EWHC 400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/03/2016
Before
MR JUSTICE OUSELEY
Between
BASHIR AHMEDAppellantPUBLIC PROSECUTOR OF LANDSHUT GERMANYRespondent
Mr Ben Cooper (instructed by Hodge, Jones and Allen Solicitors) for AppellantMr Daniel Sternberg (instructed by CPS Extradition) for RespondentHearing Hearing dates: 22 January 2016
JudgmentMR JUSTICE OUSELEY :
[1]This is an appeal against the decision of District Judge Grant on 28 September 2015 ordering the extradition of the Appellant to Germany on an accusation European Arrest Warrant issued by the Chief Public Prosecutor of Landshut, Bavaria. The Appellant is accused of two offences of fraud involving the hiring of two valuable cars, a BMW and an Audi, each worth about €60,000, from Sixt and Avis at Munich airport in June 2013. The Appellant is a 55 year old British citizen, who lives in Great Britain, has lived here since 1975, and against whom no convictions or cautions have been recorded in the UK. The appeal is essentially concerned with s12A of the Extradition Act 2003, as amended, which deals with the need for a prosecutor’s decision to charge and try an accused before extradition is ordered.[2]The Appellant admits flying to Munich and hiring the two cars at its airport which he says he did for payment, at the request of a friend. He and this friend drove the two vehicles to Hungary and then on to Istanbul and finally to Kurdistan in Iraq. There he was threatened because of concerns he expressed about what was happening. He was then told that the cars would stay in Kurdistan, but it was agreed that he could leave. His friend had his passport. Just before departure at the Kurdistan airport, he was given back what he thought was his passport, but he was arrested there for possession and use of a false passport. After he had been in prison there for four months or so, he was acquitted, and released. On his return to the UK, Avis contacted him; he told them what he said had happened: that he had acted honestly in hiring the cars but had been duped by his friend. Avis passed this information to the police or to the prosecutor’s office in Landshut which were investigating numerous cases involving the fraudulent hire of premium cars at Munich airport.

The statutory provisions

[3]S12A provides:
“(1) A person’s extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)— (a) it appears to the appropriate judge that there are reasonable grounds for believing that— (i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and (ii) the person’s absence from the category 1 territory is not the sole reason for that failure, and (b) those representing the category 1 territory do not prove that— (i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person’s absence from the category 1 territory is the sole reason for that failure.” (i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and (ii) the person’s absence from the category 1 territory is not the sole reason for that failure, (i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person’s absence from the category 1 territory is the sole reason for that failure.”
[4]In essence, the s12A bar to extradition only operates if(1) there are reasonable grounds for believing that one or more of the required decisions have not been made, and not made for a reason other than the requested person’s absence from the requesting state, and then(2) the requesting judicial authority fails to establish, to the criminal standard of proof, that in fact both required decisions have been made or that the only reason for both of them not having been made is the requested person’s absence from the requesting state.

The proceedings below

[5]In his judgment, the District

Judge states:

“On 30 April it was argued on behalf of the judicial authority that a decision to charge and try had been made and argued on behalf of the requested person that no such decision had been made.”
[6]Mr Sternberg, then as now for the judicial authority, told me, and I accept, that in fact his argument in response to the asserted bar was rather that there were no reasonable grounds for believing that the relevant prosecution decisions had not been made.[7]The District

Judge then said that, after the hearing and before judgment:

“…it was confirmed on behalf of the judicial authority that no decision to charge and try had in fact been made and the first part of the first stage Section 12A test was conceded. The hearing on 2 September was primarily concerned with the issue of whether the sole reason for this was the requested person’s absence from the jurisdiction.”
[8]At the 2 September hearing, the information placed before the District Judge was, first, a letter dated 24 April 2015 from the Landshut Public Prosecutor to Mr Sternberg replying to his enquiries dated 14 April 2015, but not faxed in time for the 30 April hearing. The answers need to be read with the questions. Question 1:
“has Bashir AHMED been charged or given formal notification that he is alleged to have committed a criminal offence? Answer: Mr Ahmed is not yet charged, he was not informed that he committed a punishable offence.” (Note the question). Question 2: “if the formal decision to charge has not been made, what is the reason for this? Answer: he has not yet been charged because he is not present. Under German law, a charge cannot be accepted by the court if the charged person is not present.” (Question 2 is clearly the follow-on to Question 1.) Question 3: “Has a decision been made that Bashir AHMED should stand trial for the offence? Answer: a formal decision that Mr Ahmed has to stand trial is not required. The national arrest warrant could only be used in accordance with German law because there is a strong suspicion against Mr Ahmed. The application for an issue of the arrest warrant is the preparation for the referral of charges once he is in Germany. Due to strong suspicion the public prosecutor is obliged to prefer charges. It is therefore certain that Mr Ahmed will have to stand trial in Germany.”
Question 4:
“If the decision to try Bashir AHMED has not been made what is the reason for this? Answer: The only reason is the fact that he is not in Germany.”
Question 5:
“Is the absence of Bashir AHMED the sole reason why a decision to charge and try has not been made (if no such decision has been made)? Answer: Yes, the only reason lies in the fact that he is not present”
. Question 6:
“When did you receive information that Bashir AHMED was not physically present in the country? Answer: On October 1 2013 the prosecutor was informed that Mr Ahmed was not personally present in the country.”
Question 7:
“If no decision to charge or try has been made in Mr Ahmed’s case, would it be possible to use Mutual Legal Assistance, such as video-link interviews or hearings or a European Supervision Order in order to make progress in the case against him? Answer: The stated means of legal assistance were not possible because German law requires the personal presence of Bashir Ahmed in Germany.”
Question 8:
“If it is not possible to use Mutual Legal Assistance measures, do you consider Mr Ahmed to be a flight risk? Answer: There is the risk of flight: Mr Ahmed has no permanent social relations in Germany. He is able to abscond at any time. He must expect a lengthy prison sentence without probation. Therefore there is a great incentive for him to flee.”
[9]Further information was sought on 16 July 2015 and provided on 22 July 2015 in response to information provided by a German lawyer instructed on behalf of the Appellant. This information was summarised in the letter of 16 July as follows:
“i. Since Mr. Ahmed’s whereabouts were known by the prosecutor in 2013 it was possible and still is possible to interrogate Mr. Ahmed by mutual legal assistance prior to bringing charges; ii. The prosecution could have sent the charges within a mutual legal assistance request in 2013 or he could have been summoned to attend a court hearing within a mutual legal assistance request to the UK; iii. There is no good reason why the prosecutor has not tried to examine Mr. Ahmed using mutual legal assistance, Mr. Ahmed has always been open about his location in the UK; iv. That it was not mandatory to issue an EAW against Mr. Ahmed to close the procedure in the prosecution against Mr. Ahmed and to charge him.”
[10]The answer was:
“The Public Prosecutor’s Office of Landshut is dealing with numerous cases where premium cars were rented fraudulently at Munich Airport. According to established law practice at the Erding Local Court, which has jurisdiction for these cases and the present case as well, the accused must expect imprisonment for at least 2 years and 6 months, which cannot be suspended. Based on the evidence we have available, particularly the statement of the witness Smith and the photographs available here, the accused Ahmed is strongly suspected of having committed the offence, which makes a conviction very likely. Considering the prison sentence the accused Ahmed has to expect, it could not be expected that he would face the criminal procedure in Germany voluntarily. The facts and circumstances of the case can ultimately only be clarified and decided in Germany. Even though the address in Great Britain is known here, interrogating the accused Ahmed by way of mutual legal assistance was therefore not indicated. The requested extradition of the accused from Great Britain is essential to ensure the criminal procedure in Germany.”
[11]The Appellant’s German lawyer, a criminal law specialist of 18 years’ experience, had reviewed the prosecution file and said in his report that the prosecution had established from the UK police that it had the correct address for the Appellant, that Avis had contacted him personally and had forwarded what he said to the police and prosecutor. Its investigator had spoken in person to Mr Ahmed at his home who had told them that he had been duped by a friend into doing what he did and explaining the position much as I have recounted it earlier. The investigator’s report said that “Mr Ahmed says that he wants to cooperate with Avis and the police and needs to know what to do next as this is a German crime. Can you advise what you want Mr Ahmed to do; does he need to go and report all of this to Greater Manchester Police or will the German police get in touch with him… .” It gave his mobile number and confirmed that Mr Ahmed had not given false details in relation to his name and address, and had said that he had hired the car for genuine reasons and had then been conned. This was an issue for the police to decide. Thus, it was clear, said the German lawyer, that Mr Ahmed was being cooperative.[12]He continued:
“Therefore it was possible- and still is- to interrogate Mr Ahmed within a mutual legal assistance procedure. It would be fairer on the defendant to have this done prior to any charges being brought. Therefore the prosecution office also would have been able- already in 2013- to charge or to try Mr AHMED- it would have been possible to send the charges within a mutual legal assistance procedure to the UK (his address was known) - it would have been possible (even for the court once a decision has been made to open the procedure) to send an invitation for a court hearing within a mutual legal assistance procedure within the UK. There does not seem to be any good reason why the prosecutor has not tried to interrogate Mr Ahmed using mutual legal assistance because from the case file it appears as if Mr Ahmed has always been open about his location. A failure to turn up for a court hearing enabled a special arrest warrant to be issued by a court. The German prosecutor was not obliged to issue an EAW in order to close the prosecution procedure and to charge him.”
[13]The District Judge said of this correspondence that the letter of 24 April shows “that no decision to charge has been made. He states, “he has not been charged because he is not present.”” He did not refer to the way in which the questions had been asked. He accepted the position adopted by Mr Sternberg. The District Judge then set out in summary other relevant answers from both letters to which I have referred, and from what the Appellant’s German lawyer said.[14]After referring to the decisions of the Divisional Court in Kandola v Generalstaatwaltschaft Frankfurt, Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097 and to Spanish Judicial Authority v Arranz (no 3) [2015] EWHC 2305 (Admin) and to what they had to say about the availability and use of MLA in relation to answers to the s12A questions, the District

Judge held that the:

“… judicial authority has properly considered alternatives to extradition, and specifically mutual legal assistance, but has rejected those alternatives. Further, in accordance with Arranz a simple but adequate reason has been given for that decision which I have no reason to doubt has been given in good faith. For those reasons I concluded under Section 12A(1)(a)(ii) (the second part of the first stage Section 12A test) that the requested person has not shown on a balance of probabilities that his absence from Germany is not the sole reason that the decisions to charge and try have not been made.”
[15]He did not state what reason he thought the Judicial Authority had given for not using MLA. Mr Cooper for the Appellant had been arguing that its reason was the risk of flight, which was not a sound reason. I shall assume that that was the reason which the District Judge had in mind, though as I shall come to, it was not what the Prosecutor was in fact saying was the reason. The District Judge was wrong to hold that it was for the requested person to show on a balance of probabilities that his absence from Germany was not the sole reason that decisions had not been made; the first question is whether there are reasonable grounds for believing that to be the position, as is made clear in Kandola [30]. The District Judge however added that he also found that the Judicial Authority had proved to the criminal standard that it was the Appellant’s absence from Germany which was the sole reason that the decisions to charge and try had not been taken.

The case law

[16]Two of the cases in the Kandola trio concerned Germany, one of which concerned Bavaria. Mr Cooper drew upon the evidence accepted in Kandola about German law and procedure. It was accepted in Kandola that the competent authorities had made no decision to charge or try him. The question of why that was so had not been dealt with by the District Judge. The Divisional Court, making the relevant factual findings, concluded that there were reasonable grounds for believing that the absence of Mr Kandola from Germany was not the sole ground for the lack of decisions to charge or try him. It explained why at [38], which draws on a letter from the German Ministry of

Justice explaining German criminal procedure:

“38. The letter of 4 December 2014 explains the stages in the German criminal procedure, which are, broadly: (i) an investigation stage leading to what is called by the JA a “bill of indictment”, (ii) the opening of the “main proceedings” and (iii) their continuation to completion of the trial by the competent court. An examination of the accused is a pre-requisite for closing the investigation proceedings and then the submission of a bill of indictment to the competent court. In the case of an accused person not being present in Germany, the public prosecution office can and will make use of the European machinery for Mutual Legal Assistance in criminal matters to ask the authorities in the state where the accused resides to conduct an examination of him. If an examination cannot take place at all then the investigation proceedings have to be “provisionally determined”, i.e. terminated. The decision of the public prosecution office to apply for the opening of the main proceedings does not require the accused to be present in Germany. However, the main proceedings cannot be conducted against an absent person. “The court may thus provisionally terminate the proceedings before deciding on the opening of the main proceedings if the absence of the indicted accused prevents the holding of the main hearing for a considerable time.”
[17]The Divisional Court then explained how the system of mutual assistance in criminal matters became established between member states of the EU, and referred to s21B of the 2003 Act, in force from 21 July 2014. There was a further general letter from the German Ministry of

Justice summarised by the Divisional Court in [40]:

“40. … In short, the German public prosecutor's office will use MLA before the issue of an EAW if practicable, but it may not do so if it is thought that its use would create a risk that the putative requested person would flee from possible arrest.”
[18]The reason why MLA was not used was that Mr Kandola was considered to be a flight risk and that MLA would have alerted him to the prosecution interest. The specific position in Mr Kandola’s case was dealt with in [41] as follows:
“… The further question posed is: “was the absence of Mr Kandola from Germany the “sole” reason for no decision having been taken to charge and try them (sic) or were there other reasons?. The answer given is: No. The formal decision to charge Mr Kandola has not yet been made because investigation against Mr Kandola has not yet been concluded. This is due to the fact that Mr Kandola has not yet been heard by the chief public prosecutor's office in Frankfurt. In addition, reference is made to our last answers to the questions of the Crown Prosecution Service. 42. There is one further relevant fact to add. During the course of the hearing Mr Summers stated, on instructions, that Mr Kandola would consent to a “temporary transfer” pursuant to the terms of s 21B of the EA. Mr Summers submitted that Mr Kandola was not a “flight risk” and that MLA was available, but the offer of “temporary transfer” remained despite those submissions. Taking all these matters together, we must conclude that there are “reasonable grounds for believing” that Mr Kandola's absence from Germany is not the sole reason why the decisions to charge or try him have not been taken.”

The answer given is:

[19]The Court then had to consider whether the German authority had proved to the criminal standard that the sole reason for the decision not being made was the absence of Mr Kandola from Germany. The Court explained the position in [43] as follows:
“43… It is clear that, under German criminal procedure, the decisions to charge and try can only be taken once the suspect has been examined by the chief public prosecutor. That examination does not have to be done in Germany. But if it is not, then the only way it can be done is through MLA. The decision on whether to use MLA must be one for the German prosecutor to take, having considered all relevant circumstances. We are satisfied, to the criminal standard, that the option of MLA was considered by the competent authorities in Germany and rejected on the reasonable ground that there was a risk that Mr Kandola would evade the criminal proceedings in Germany if the EAW had not been issued and executed. There is no reason to doubt that statement. In any event, we accept the submission of Mr Jones that, in the absence of any cogent evidence of bad faith or something of a similarly compelling nature, this court should accept what is said on that topic by the competent authority. It must follow that, in practice, the sole reason why there has been no decision to charge and try Mr Kandola is his absence from Germany, which, in his case and for purely practical reasons, is the only place where he can be examined, which examination is a pre-condition to the decisions to charge and try being taken.”
[20]The Divisional Court at [34] considered how the requesting judicial authority could prove beyond reasonable doubt that the sole reason that no decisions to charge and try had been made was because of the requested person’s absence from the Category 1 territory. It said:
“34… In the vast majority of cases a short, clear, statement from the relevant Judicial Authority answering the following simple questions from the CPS acting on its behalf in the extradition proceedings should be determinative: “(i) has a decision been taken in this case (a) to charge the requested person and (b) to try him, if not, (ii) is the sole reason for the lack of each of the decisions that have not been taken the fact that the requested person is absent from the category 1 territory of which you are a/the Judicial Authority?”
The requested person may be able to challenge such statements, but we would hope that disputes on the issues raised by s 12A(1)(b) will not result in elaborate hearings on factual or expert evidence, or else that would defeat the whole object of the EAW system of simple and quick procedures to surrender persons who are wanted for the purposes of criminal prosecution to category 1 territories. Elaborate evidence would also place an intolerable burden on the DJs who have to deal with extradition and who already have a very heavy work load of cases and hearings.”[21]I note the expectation and desirability of a short answer to a simple question but that rather assumes that the purpose and nuances of the UK legislation are already well understood by requesting judicial authorities, in particular the distinction between charge and decision to charge, and what has now become the importance of explaining for s12A purposes why MLA has not been used, which would not have been apparent from s12A itself, the language of which contains no such question.[22]The second decision in the Kandola trio concerned Ms Droma. Mr Cooper put particular weight on her case because he said it was very similar to that of this Appellant. The Divisional Court held that it was not clear from the warrant itself why no decisions to charge and try Ms Droma had been made. (That is not of itself surprising since the form of EAW has not been devised to cover the requirements of UK specific legislation, though it may be obvious from the language of and circumstances dealt with in the EAW.) The Court inferred that it could be because the investigation had not been concluded. There had been no attempt to use MLA “despite the fact that (as the district Judge found) Ms Droma is not a flight risk”. The Court was satisfied there were reasonable grounds therefore for believing that her absence from Germany was not the sole reason for the lack of the decisions to charge and try her. The Court then considered whether the requesting state had proved to the criminal standard that it was indeed her absence from Germany which was the sole reason why the two decisions had not been made. In addition to the general information about German criminal procedure, to which I have already referred, the Court had a letter from the public prosecutor concerning MLA in her case.[23]The Court, as it said, “unfortunately” did not have the questions to which it was endeavouring to understand the answers; [47]. The first answer dealing with whether MLA could be used in Ms Droma’s case stated that MLA could not have been used “for the decision concerning the indictment as Ms Droma was absent from the city and therefore, according to German Law, no charges could have been brought against her - even if due process of law were granted”. That answer is quite similar to the answer to Question 7 in this case. The Court found that answer very difficult to understand, just as the answer to Question 7 in this case might at first blush be difficult to understand, because the very reason why such a request is made in the first place is that the person is not in the territory seeking MLA. Although there could be no charge under German procedure unless the suspect had been examined by the public prosecutor and that might have been the point that the answer was trying to make, the Court held that “no coherent reason is given to explain why MLA has not been used in this case”, specifically bearing in mind that the District Judge had held that Ms Droma was not a fugitive, and it was not argued that flight risk would be a reason why MLA could not be used; [48].[24]The Court understood the position to be that if Ms Droma were extradited she would be examined before the chief public prosecutor and then charged, following which a decision to try would be made immediately; but the examination, which must precede the decision to charge and try, did not have to be carried out in Germany: “On the face of it, MLA could be used for an examination of Ms Droma by the chief public prosecutor in this case. In the absence of any coherent explanation of why MLA has not been used in Ms Droma’s case to undertake the “pre-indictment” examination, we have concluded that those representing the Category 1 territory have not proved, to the criminal standard, that the sole reason for not making the decisions to charge and try Ms Droma is her absence from Germany”. [50]. Her extradition was therefore barred under s12A.[25]Arranz approved the decision in Kandola, noting that in Kandola the point was rightly made that, although Parliament had never intended any elaborate procedure to be involved in s12A, a requested person had to be able to challenge a simple statement that the sole reason for the decision not to charge or try was absence from the jurisdiction, a challenge nonetheless to be kept within narrow bounds. At [56] the Divisional Court in Arranz said:
“56. It is clear in our view that, where evidence is adduced which shows that a means of examination of a defence is possible either through the use of the Mutual Legal Assistance Convention or otherwise before the decision to prosecute is made, then it is for the requesting European judicial authority to prove by adducing evidence to the requisite standard of proof that the test in s.12A (1)(b)(ii) has been met. In the present case the Spanish Judicial Authority has given no reasons. On the face of it, on the evidence before the court, it therefore has not shown that the sole reason for the decision to prosecute not having been made is the Appellant’s absence from Spain.”
[26]It was not always enough for the requesting judicial authority to state that the sole reason was absence from the Category 1 territory or simply that it had considered MLA. There was nothing inconsistent with mutual recognition and mutual confidence in requiring one judicial authority to explain to another why it had taken a certain course “where the evidence plainly calls for such an explanation; providing simple reasons enhances confidence; declining to do so can undermine confidence and thus work against the basic principles that underpin mutual recognition”. It was wrong on the facts of Arranz to act on the unreasoned statement of the Spanish judge for a number of reasons which created considerable doubt about the stance adopted by the Spanish judicial authority. Those do not arise here in anything like the same way. It appears however, taking paragraphs 59, 60, including the start and sub-paragraph (6) together, that there are circumstances in which it will be proper to act on the unreasoned statement of the requesting authority.

The submissions

[27]Mr Cooper contended that the proper application of Kandola and Droma meant that the District Judge should have concluded that there were reasonable grounds for believing that the sole reason why no decision to charge and try had been taken was not Mr Ahmed’s absence from Germany, and that the District Judge was wrong to conclude as an alternative that the requesting authority had shown to the criminal standard that Mr Ahmed’s absence was the sole reason why those decisions had not been taken. He did not pursue the misdescription of the first question as one to be decided on the balance of probabilities. Mr Cooper submitted that the sole or at least an additional reason why no decisions had been taken was that the judicial authority had not questioned Mr Ahmed, and one reason at least why they had not done so was that they had not sought to use MLA to question him in the UK, in which he was willing to co-operate. The District Judge erred in accepting as coherent and plausible reasons for not using MLA the public prosecutor’s fear of flight, since Mr Ahmed’s contact details were known to it, he had co-operated with the Avis investigator and had expressed his willingness to be interviewed here in the UK. Indeed by way of reinforcing that willingness, Mr Cooper said that he had applied to the District Judge for the adjournment of the extradition hearing under s21B(3), to which I shall come, for the purpose of enabling Mr Ahmed to speak in this country to representatives of the Landshut Prosecutor, for the purposes of their examination of him.[28]Mr Sternberg submitted that the District Judge was correct on the facts to accept the information from the Public Prosecutor as establishing that the sole reason why no decision to charge or to try had been taken was Mr Ahmed’s absence from Germany, and that MLA had been considered and not thought appropriate. There was a limit on how far the Court should investigate and construe the reasons given for not proceeding with MLA.

Conclusions

[29]I have to start from the premise that there has been no decision, within the meaning of s12A, to charge or to try Mr Ahmed. Mr Sternberg accepted that that was the position before the District Judge, and did not seek to resile from it before me, in order to uphold the decision on grounds other than those of the District Judge. So the focus before the District Judge, and before me, was on whether the sole reason why neither decision had been taken was the accused’s absence from Germany. The question was whether the reason was or included the absence of an examination of the accused, and whether the reason for that was that the Prosecutor had not used MLA or tried to use to conduct it, and whether the Prosecutor’s reason for not doing so was coherent or plausible.[30]By referring to a decision “within the meaning of s12A”, I do not confine it to “formal decision to charge or try”, as it has sometimes been expressed in the questions here and in Kandola. A formal decision can only be taken where such a formal stage actually exists in the requesting judicial authority’s procedures. Where no such formal decision exists, the stage the proceedings have reached, bearing in mind the nature of the s12A questions, will still have to be considered. Extradition cannot be barred on the basis that there never will be such a decision. So the stage the prosecution has reached must be capable of being evidenced sufficiently for s12A purposes other than by showing that a non-existent separate formal decision has been taken.[31]In Germany, the examination of the accused marks the end of the investigation stage and the opening of the “main proceedings”, the completion of which is the conclusion of the trial. The presence of the accused is required for the conduct of the main proceedings, but not for the examination. Between the close of the investigation and the opening of the main proceedings comes the charging of the accused. There appears to be no formal distinction between a formal decision to charge and the actual process of charging an accused. This stage requires the accused to be present. There is no separate formal decision to try; the decision to try seems simply to be the concomitant of the decision to charge or actually charging someone. The Questions here may not have been framed by reference to what is known of German criminal procedure as set out in Kandola by the German Ministry of Justice, [38], above. They would have been answered however in the light of the Prosecutor’s knowledge of German procedure.[32]The Questions and Answers have to be read together, as a sequence, bearing in mind that the language of the questions will affect the answers, and that the questions, while in themselves intended as a sequence like the answers, are not asked in response to the answers actually given to the earlier questions. They have to be read with the further information from the Public Prosecutor, and recognising that he has to grapple, via the questions, with UK statutory provisions which are not reflected in the Framework and find counterparts in very few if any other EU Member States.[33]With those observations, I turn to the Questions and Answers and further information. The District Judge, as did Mr Sternberg before him, treated the first and second Questions and Answers as dealing with the decision to charge. They only do so however on the basis that the decision to charge is the same as or is part of the charging process itself. Question 1 deals with the charge itself or formal notification; it does not enquire about any separate stage of a decision to charge, formal or informal, at all. Question 2 uses the words “formal decision to charge” without suggesting that it was looking at a different stage in the process from that to which Question 1 related. Nor was it; Question 2 is intended to follow on from the Question 1. The predicate in Question 2 is that the event asked about in Question 1 has not occurred. Indeed, the words “formal decision” focus on a formal stage, which charging undoubtedly is. The answer makes it clear that that is how the Prosecutor understood Question 2, because his answer relates to the charge itself, and not to any distinct, earlier, formal decision; his answer explains why Mr Ahmed has not been charged, not why no decision to charge has yet been made. The two were seen by the Prosecutor as in effect asking: has he been charged? If not, why not? The answer to Questions 1 and 2, read together, is simply that Mr Ahmed has not been charged because he is not present in Germany. The absence of decision to charge is implicit in the absence of charge itself. If the questions intended to ask about a separate stage of a formal decision to charge, distinct from the act of charging itself, their drafting could not have conveyed that, and they were not understood or answered in that sense.[34]Questions 3-4 deal expressly with the next decision - to try; they were clearly understood as questions about the decision to try, since it was obvious that they could not relate to any actual trial. The answer to Question 4 cannot be read as saying that a formal decision to try would have been taken if Mr Ahmed had been in Germany.[35]Question 5 asks about a decision to charge and to try. It appears now to be a single decision which is being asked about. The answer relates to a single decision or act. In so far as it relates to a decision to charge, it goes back to the way in which Question 1 and in consequence Question 2 were seen: the answer relates to the charge itself and not to some earlier decision stage which the Prosecutor showed no sign of ever considering might be separate at all. Mr Ahmed has not been charged because he has to be in Germany for that formal stage. There is no separate formal decision to try in German criminal procedure, so the answer in relation to the single question is bound up with the act of charging. Indeed, it is difficult to see what a Prosecutor, without careful explanation, would have made of a charge which was not also a decision to try.[36]The answers thus far make it plain that the concession by Mr Sternberg below, and its acceptance by the District Judge, that there had been no decision(s) to charge or try, based on the Questions and Answers and further information, could not, and did not, go further than this: since there has been no charge, it follows that no formal decision to charge has been taken, and no formal decision to try can be taken since it is unknown to German procedure; the effective decision to try is the concomitant of the charge, which has yet to occur. The answers also make it clear that the sole reason why there has been no charge, which includes the decision to charge and to try, is that Mr Ahmed is not in Germany, which is where he needs to be in order to be charged.[37]But the evidence makes it clear beyond a peradventure that the Prosecutor had decided that Mr Ahmed will be charged once he is in Germany, and that he will then be tried. The last two sentences of the Answer to Question 3 are worth repeating here:
“Due to strong suspicion the public prosecutor is obliged to prefer charges. It is therefore certain that Mr Ahmed will have to stand trial in Germany.” (My emphasis.) If there were any doubt about it, it is resolved by the further information. The second paragraph refers to the strong suspicion, and that a conviction is “very likely”
. The third paragraph is not suggesting that the facts will be clarified by the pre-charge questioning of Mr Ahmed; after all, the Prosecutor knows the limited nature of the issues Mr Ahmed raises. It is making the point that the issues can only be resolved by a trial. Hence, extradition is essential for the German criminal procedure to take its course. This is plainly the language of an informal decision to charge and try, but not that of any formal stage, here the charge, having been reached in relation to either.[38]However, Mr Cooper’s point is that there are first reasonable grounds for believing that there is another reason why that stage has not been reached, and second, that the District Judge was wrong to hold that the Prosecutor had proved to the criminal standard that there was no other reason than Mr Ahmed’s absence from Germany. The other reason put forward by Mr Cooper was that Mr Ahmed had not been examined, a necessary procedural precursor to the charge. The reason he has not been examined has nothing to do with the fact that Mr Ahmed is not in Germany, since he is willing to be examined using MLA in the UK, and the reason given by the Landshut Prosecutor for not using it, namely flight risk in Germany, is nonsensical.[39]I turn then to the Questions which, in line with Kandola, then covered MLA. The Prosecutor had already answered the CPS twice that the case required Mr Ahmed’s presence for the charge and decision to try. Question 7 does not ask whether there is any other procedural step which has to be gone through before any decision to charge or to try; nor does Question 7 ask whether MLA would help with any procedural step. Question 7 assumes that there has been no decision to charge or try, which the question treats as a single decision, as I think reflects the procedure in Germany. Question 7 asks whether MLA can assist the investigation, “make progress in the case against him”, since the case is still in the investigatory stage. That at all events is how it was answered. What comes back needs to be read in the light of the earlier answers. It is to the effect that MLA cannot help; it is irrelevant; the investigation is in substance complete; the Prosecutor knows the essence of Mr Ahmed’s defence; he knows what he is going to do: he is going to charge and try Mr Ahmed, and he cannot do that without Mr Ahmed in Germany. So MLA is “not possible” since it cannot achieve what is required, namely Mr Ahmed’s presence so that he can be charged. The Prosecutor must be taken to know that there is a procedural step to be taken, which precedes the charge, but in this case that is not why Mr Ahmed has not been charged. This reiterates the answer to the previous questions that it is only Mr Ahmed’s absence which is holding up the process. Of course, the examination will have to take place; once over, Mr Ahmed will be charged; but the examination is not the issue. Mr Sternberg’s concession did not mean that the Prosecutor still had an open mind about the case, and wanted to know what Mr Ahmed might have to say, in order to decide what to do.[40]Question 8 is an unhappily drafted question. What it meant to ask was whether, if MLA could not be used, the reason was that the attempt to use it would create a flight risk. But it does not ask that question at all; it does not raise any causal link between the use of MLA and flight. The premise for Question 8 is that MLA cannot be used, as the Prosecutor has just confirmed is indeed the case. The question then is, if so, does the Prosecutor consider Mr Ahmed a flight risk? It might be thought by the Prosecutor to be an odd and irrelevant question, but the answer is a reasonable attempt to grapple with the question actually asked. But it must be remembered that it is not a direct follow-on to the answer to Question 7. The questions were formulated as a sequence in themselves and not following up the answers actually given to the previous questions. The answers however answer the questions in the light of the answers already given.[41]The answer obviously assumes that, as MLA is not possible, the question asked about Mr Ahmed’s flight risk, once in Germany pursuant to the EAW. Why would the Prosecutor think that the CPS wanted to know from the Prosecutor about his view on flight risk in the UK, if MLA is not being used? The alternative, absurd and wrong explanation is that the Prosecutor thought that the CPS were asking about the use of MLA in respect of someone already in Germany. The question may be odd, but that oddity is rather less than the absurdity Mr Cooper’s submission ascribed to the Prosecutor’s answer. The answer to Question 7 and the third paragraph of the further information show that the Prosecutor understood how MLA worked. If the Court in Droma had had the questions, the similar answer which perplexed it might have been more readily understood.[42]To my mind the answers and the further information show beyond any peradventure that(i) the Prosecutor has decided that Mr Ahmed is to be charged and tried, and(ii) the sole reason for the lack of any formal decision to charge and try, which appears here to be the act of charging, is that Mr Ahmed is not in Germany. The Prosecutor has reiterated that on a number of occasions. He has explained why. That is his decision as to how he is to conduct the criminal proceedings. He has what he regards as a strong case. He knows the essence of Mr Ahmed’s side of the story: he hired the car honestly and was duped by a friend into driving it to Kurdistan. Whether that is true or not is now a matter for trial, as the Prosecutor is entitled to appraise it. Nothing Mr Ahmed says will avoid the need for the honesty of his explanation to be tested through a trial in Germany. MLA has been considered and rejected as a means of progressing the case, for reasons which are sound and intelligible: the Prosecutor has decided to charge and try Mr Ahmed, but the formal stages have yet to be completed. It is not the lack of examination which stands in the way. It is the absence of Mr Ahmed from Germany. The examination is a necessary formality before he is charged in Germany, as he will be. There is no point in using MLA for an examination, with the delay and complexity which it may entail, when what is really required by the Prosecutor to take the next steps in the criminal proceedings is Mr Ahmed’s presence in Germany.[43]MLA has not been rejected because of any fear of flight in the UK, but because it would not advance the criminal proceedings which the Prosecutor has concluded will inevitably require Mr Ahmed’s presence. He would be a flight risk if he were in Germany, but that has nothing to do with MLA. Kandola or Arranz do not hold that only a fear of flight in the extraditing state justifies the refusal to use MLA. Still less do they hold that it is for the District Judge or this Court to sit in judgment on the reasons for the conclusion of the requesting state that MLA is not a suitable route in any given case.[44]I make three observations. The approach to MLA, when considering s12A, where it is not a statutory question, needs care to avoid s12A thwarting extradition without advancing the purpose of s12A. Second, where, as here the requesting judicial authority has made it clear that the sole reason for the absence of charge is that Mr Ahmed is not in Germany, that clear position, following Kandola [43] ought to be the end of the matter. What was said in Arranz needs to be read in the context of the very unco-operative behaviour of the Spanish judicial authority in circumstances where candour and openness had been called for. Here, moreover, the Prosecutor has explained the position very clearly and has not simply relied on a bare assertion. Third, it is no part of the task of this Court to review the merits, wisdom or judgment of the requesting judicial authority’s reason for not using MLA unless there is bad faith, obviously not alleged, or some very particular circumstances exist as in Arranz. Where on the face of it a proper reason is given, no more ought to be required, unless there is a strong basis for doubting the reason. It is not for this Court to reach the view that the requesting authority could or should conduct its investigations and prosecutions differently.

S21B and the adjournment application

[45]Although s21A provides that the availability of measures less coercive than extradition is relevant to the proportionality of the extradition of an accused person, s21B deals specifically with two such measures, and MLA is one.[46]S21B enables the requesting judicial authority or the requested person before or at the extradition hearing to request either a temporary transfer to the requesting territory, or, as happened here, that arrangements be made to enable the requested person to speak to the prosecuting authorities. If such a request is made, further proceedings must be adjourned if the judge thinks it necessary to enable whoever made the request to consider whether or not to agree to it.[47]Mr Cooper’s application under s21B(3) for an adjournment, was opposed by the requesting judicial authority. The application was rejected by the District Judge without reasons, as was another opposed adjournment application. Notwithstanding the arguments over s12A, this was a requestm made for the first time at that hearing.[48]This refusal did not form any ground of appeal nor any ground of judicial review challenge, though I permitted Mr Cooper to raise the issue lest it be of importance to the appeal, as it at one time it appeared it might be. The evidence that the issue had been raised was provided by the Appellant’s solicitor and I accept it. This sort of issue should be raised in the appeal, and if any flexible procedural adjustments are required to produce the appropriate remedy in the light of the Court’s decision, those can then be made.[49]The way in which s21B applications should be made and considered was dealt with in Duncan v Presiding Magistrate, Malaga, Spain [2015] EWHC 3466 (Admin), Beatson LJ and Cranston J. It had not been decided in time for the District Judge here to consider it. However, the lateness of the application, which was the basis for CPS opposition, was relevant to the exercise of the discretion which Duncan holds the District Judge to have. Even if the exercise of the discretion were confined to considering what was necessary to enable the requesting authority to consider whether to consent to the request, the District Judge would have been bound to hold that he already knew the answer which the requesting authority would give, for better or worse, and so no adjournment was necessary. The answer might have been different if the requesting authority were found by the District Judge to be proceeding on some significant misapprehension as to its position, which might lead it to prefer to consider the request to losing the extradition contest. But that is not the case here. So the refusal of the adjournment affords no ground of appeal or challenge.[50]One aspect of necessity which might need considering is the quite complicated process of MLA, the value of which in relation to an accused person, who may be asked but is not obliged to answer incriminating questions, may be open to doubt. A Court might need to understand how that was likely to pan out, before the possibility of MLA is permitted to delay extradition proceedings, and if the examination were to be but a formality, it is difficult to see why MLA would be necessary at all.

Conclusions

[51]This appeal is dismissed. Although my reasoning may be to a degree different, the District Judge was not required to answer differently the question whether the sole reason why there had been no decision to charge or try Mr Ahmed was his absence from Germany.

Cited in 2 later judgments