Din v Director of Public Prosecutions of the Augsburg, Germany [2017] EWHC 475 (Admin)

[2017] EWHC 475 (Admin)Case No CO/4379/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 March 2017
Before
MRS JUSTICE LANG DBE
Between
NAVEED DINAppellantDIRECTOR OF PUBLIC PROSECUTIONSRespondentOF THE AUGSBURGRespondentPUBLIC PROSECUTORS OFFICE, GERMANYRespondentNATIONAL CRIME AGENCYInterested Party
James Stansfeld (instructed by Lawrence & Co Solicitors) for AppellantBen Lloyd and Florence Iveson (instructed by the Crown Prosecution Service) for Respondent for The Interested Party did not appear and was not representedHearing Hearing date: 28 February 2017
Judgment ApprovedMrs Justice Lang :
[1]The Appellant has appealed against the order for extradition to Germany made by District Judge Zani (hereinafter “the DJ”) on 23 August 2016 at Westminster Magistrates’ Court.[2]On 30 March 2016 the Respondent issued a European Arrest Warrant (“EAW”) which was an “accusation” warrant seeking the Appellant’s extradition to Germany so that he could be prosecuted for twenty offences arising from a VAT carousel fraud. The EAW was certified by the National Crime Agency on 6 April 2016.[3]Permission to appeal was granted by Cranston J. on 20 December 2016, at an oral hearing.

Grounds of appeal

[4]The grounds of appeal were: i) The DJ erred in finding that the warrant was a valid Part 1 warrant pursuant to section 2(4)(c) Extradition Act 2003 (“EA 2003”) because the details of the allegations against the Appellant were insufficiently particularised. ii) The DJ erred in finding that the Appellant’s extradition was not barred under section 12A EA 2003, as no decision to charge or try had been made. After the DJ’s decision, an indictment was lodged by the Respondent on 14 October 2016, and in the light of this the Appellant abandoned his challenge that no decision to charge had been made.

The scope of the appeal

[5]The right of appeal is conferred by section 26 EA 2003, on a question of law or fact, with the leave of the court.[6]The court’s powers on appeal are set out in section 27 EA 2003:
“(1) On an appeal under section 26 the High Court may— (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (5) If the court allows the appeal it must— (a) order the person's discharge; (b) quash the order for his extradition.” (a) allow the appeal; (b) dismiss the appeal. (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (a) order the person's discharge; (b) quash the order for his extradition.”

Fresh evidence

[7]With the consent of the parties, I admitted fresh evidence on appeal, applying the principles in Hungary v Fenyvesi [2009] EWHC 231 (Admin), at [33] – [35]. The Respondent sought to adduce in evidence the letter of Public Prosecutor Paintinger, dated 6 February 2017, which provided information as to the lodging of the indictment, and the likely next steps in the proceedings. The Appellant sought to adduce in evidence the letter of Attorney Daniela Palme, dated 13 February 2017, which described court procedures after the lodging of the indictment. This was updating evidence, which post-dated the DJ’s decision.

Ground 1: section 2(4)(c) EA 2003

(c) EA 2003

[8]Section 2(4) EA 2003 provides, so far as is material: “(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or(b) the statement referred to in subsection (5) and the information referred to in subsection (6). (3) … (4) The information is – (a) particulars of the person’s identity; (b) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence;(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and places at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it. (5) …” (a) the statement referred to in subsection (3) and the information referred to in subsection (4), or (b) the statement referred to in subsection (5) and the information referred to in subsection (6). (a) particulars of the person’s identity; (b) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence; (c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and places at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.[9]If a warrant fails to include the information required by section 2 EA 2003, it is not a valid warrant (see Dabas v High Court of Justice, Madrid (Criminal Appeal from Her Majesty’s High Court of Justice) [2007] 2 AC 31; Office of the King’s Prosecutor v Cando Armas [2006] 2 AC 1). The requirements under section 2 EA 2003 have to be considered separately for each offence in the EAW.[10]In Von der Pahlen v Government of Austria [2006] EWHC 1672 (Admin), the Divisional Court emphasised that the use of the word ‘particulars’ indicates that a broad omnibus description of the alleged criminal conduct will not suffice (per Dyson LJ at [21]). In Gilbert Ektor v National Public Prosecutor of Holland [2007] EWHC 3106, Cranston J.

(c) , at [7]:

“… In other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place.”
[11]In Dhar v The Netherlands [2012] EWHC 697, Moore-Bick LJ held, at [117]:
“Although I accept that the warrant need not contain highly detailed information of the kind that one might expect to find in a civil pleading, it must contain enough information to enable the requested person to understand with a reasonable degree of certainty the substance of the allegations against him, namely, what he is said to have done, when and where, and also, in a case where knowledge of particular matters is an essential ingredient of the offence, sufficient information to enable him to understand why it is said that he had the necessary knowledge.”
[12]In Pelkav Regional Court in Gdansk, Poland [2012] EWHC 3989 (Admin) Collins J held, when considering an allegation of conspiracy, at [6]:
“Certainly, where involvement in a conspiracy is alleged, it is not necessary to include any great detail as to the precise acts committed in furtherance of the conspiracy. But, as a general proposition, it seems to me that a warrant ought to indicate, at least in brief terms, what is alleged to have constituted the involvement or the participation of the individual in question. It seems to me that, prima facie, simply to say there was a conspiracy and he conspired with others is to do whatever the end result of the offence is, is likely not to be sufficient….”
[13]The Appellant submitted that, applying these principles to this EAW, there was insufficient detail in respect of the twenty offences referred to in the EAW. It was unclear what he was said to have done, and when.[14]In my judgment, the EAW gave a detailed and sufficient description of the alleged tax fraud. In summary: i) The Appellant was one of a group of named individuals who in 2010 established a criminal association in order to manage a VAT tax carousel fraud to evade German VAT. The loss in Germany was over 60 million euros. They were able to operate from any place by means of laptops and online banking. They met in Marbella, Spain until the end of 2014, and thereafter in Poland. ii) The carousel was controlled by three organisations: the “English Crew”, “Truesay” and “DJ”. iii) The ringleaders of the English Crew organisation purchased companies registered in Germany and set up a network of further companies through which goods were funnelled, and ultimately sold abroad. These companies were known as missing traders. iv) Goods were imported from abroad and sold by missing trader companies, having “charged” VAT on the goods without paying it to the tax authorities. The next companies in line “bought” the goods and “sold” them on to further companies – these were known as buffer companies, controlled by the ringleaders, with temporary office spaces and fictitious paper work created. DB Wealth GmbH served as a buffer company, and the Appellant was its managing director. v) The next layer of companies then channelled the goods abroad to give the appearance of real business transactions taking place and to conceal the tax fraud. These companies were also controlled by the ringleaders with strawmen directors, who were part of the conspiracy. Payment platforms were then created by the ringleaders in order to launder the proceeds of the fraud. vi) The Appellant was a member of the English Crew. The other members were also named. vii) The Appellant’s role and alleged criminal activity was described in detail: “On the lower hierarchy level of the English Crew, there are the managing directors of companies which the English Crew integrated as buffer companies into the missing trader carousel. They had the task of being available as contact partners for tax authorities, of keeping contact with the tax consultant and of filing the invoices in the accounting records. These were in particular the Appellants KHAN, DIN and HERBERT.” “On 07 March 2011 the defendant DIN acquired DB Wealth Management GmbH upon the instruction of the defendants JOHN SHAW, DRAKE, WELLER, LEWIS and JAMIE GIBSON. The defendants JOHN SHAW, DRAKE, WELLER AND JAMIE GIBSON, in collusion with the organisations of Truesay and DJ, used DB Wealth Management GmbH in the delivery chains of the missing trader carousel.” “In accordance with the common plan to commit the offence, the defendants ……DIN …and other members of the criminal organisation acted with the intent of filing false advance turnover tax returns for the companies …..Goldstern Elektro-Handle GmbH and Z & V Trading GmbH…. by not declaring the invoices prepared as 14c tax and by wrongfully claiming the turnover tax from the invoices received, with the objective of evading turnover taxes in Germany in order to secure for themselves a permanent source of income as a result of this.” “The member of the English Crew, the Appellant DIN, was appointed managing director of DB Wealth Management GmbH. Although all members of the criminal organisation knew that the "suppliers'' of DB Wealth GmbH, namely Z&V Trading GmbH and Goldstern Elektro Handels GmbH, did not perform any entrepreneurial activity and "delivered'" goods that had been reduced in price by evading the value-added tax, the Appellant DIN nonetheless wrongfully claimed the input tax on the basis of these invoices from that tax of which the members of the criminal organisation were aware, and therefore, in violation of his duty, did not declare the 14c tax from the invoices of DB Wealth GmbH. As a result of this, turnover taxes in the total amount of 6,104,468.17 Euros were evaded during the period from July 2011 until June 2012 – of which all the members of the gang and members of the criminal organisation were aware – of which in respect of an amount of 1,176.82730 Euros merely a direct attempt was made.” viii) The EAW was in respect of a total of twenty offences, committed between July 2011 and June 2012, for incorrect filing or failure to file advance turnover tax returns by the buffer company DB Wealth GmbH (8 offences); the missing trader company Z&V Trading GmbH (7 offences); and the missing trader company Goldstern Elektro Handels GmbH (5 cases).[15]Whilst it is true to say that the previous EAW, which was quashed by the High Court (Germany v Khan & Lewis; Din v Germany [2014] EWHC 1704 (Admin)) contained a helpful table setting out the dates of each offence and the amounts involved, which was not included in this EAW, I do not consider that the lack of these details invalidates this warrant. This warrant met the requirements of section 2(4)(c) EA 2003 by providing detailed particulars of the circumstances in which the offences were committed and the conduct alleged to constitute the offences. Whilst it did not provide precise dates for each fraudulent act, it specified a period of time within which the offences were committed, which was sufficient. It also identified the total losses incurred as a result of the offences. The location of the offence was Germany, since German VAT was being evaded by German-registered companies. However, this was an international fraud and so the Appellant and other members of the organisation were operating in different places across Europe.[16]In my judgment, the DJ was correct to conclude that:
“30. The period of the criminal conduct is set sufficiently out, and the place where the effects of that conduct has been established as being Germany. The named perpetrators of the fraud are individually named, as are all the companies. The method used by the alleged fraudsters is also detailed as well as the roles of each individual Appellant.” …… “34. I am satisfied that the information set out in the EAW enables Mr Din to know not only what charges he faces but also the role he is said to have had within the criminal organisation in respect of the charges for which his return is sought. It also enables him to be able properly to consider what challenges to extradition he might wish to advance to this court.”
[17]Although there was force in the Appellant’s criticisms of the DJ’s citation of authorities, fortunately these shortcomings did not lead the DJ into error when he was considering the application of section 2(4)(c) EA 2003 to this warrant.[18]The Appellant’s submission that he would be prejudiced if he was charged with further offences upon extradition to Germany, as he could not easily identify those offences for which he could claim protection under the speciality rule, seemed to me to be speculative and to lack any foundation. There was no reason to believe that Germany intended to offend the speciality rule by adding additional charges. The Appellant and his lawyers have been served with the indictment, and so he now knows the offences with which he has been charged. It was not suggested that any additional charges had been added. However, even if Germany did seek to add additional charges, he would be entitled to rely on the speciality rule in respect of any which fell outside the description contained in the EAW.[19]My conclusion is that the Appellant’s ground of appeal under section 2(4)(c) cannot succeed.

Ground 2: section 12A EA 2003

[20]Section 12A provides:
“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. (2) In this section “to charge” and “to try”, in relation to a person and an extradition offence, mean— (a) to charge the person with the offence in the category 1 territory, and (b) to try the person for the offence in the category 1 territory.” (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 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. (2) In this section “to charge” and “to try”, in relation to a person and an extradition offence, mean— (a) to charge the person with the offence in the category 1 territory, and (b) to try the person for the offence in the category 1 territory.”

and

[21]In Kandola v Generalstaatwaltschaft Frankfurt, Germany [2015] EWHC 619 (Admin), the Divisional Court stated that: i) The purpose of section 12A, as explained in paragraph 462 of the Explanatory Memorandum to section 156(2) Anti-Social Behaviour, Crime and Policing Act 2014, is to ensure that there is a clear intention to bring the case to trial before extradition occurs, so that people do not spend long periods in pre-trial detention while the issuing state continues to investigate the offence: [21]. ii) A cosmopolitan approach, which reflects and accommodates criminal procedure in other states, should be taken to construing the phrases “decision to charge” and “decision to try”: [27]; iii) Section 12A EA 2003 involves a two-stage approach. The default position is that the decisions to charge and try have been taken. The requested person may seek to establish, on the balance of probabilities, that the competent authority has not made a decision to charge or a decision to try, and that the requested person’s absence is not the sole reason for that failure. In making his decision, the judge is entitled to rely upon the statements made in the warrant, but if the position is unclear, he may consider extraneous evidence too. If it appears to the judge that there are reasonable grounds for believing that the decision to charge or try has not been taken and that the absence of the requested person is not the sole reason, the burden shifts to the requesting state, at the second stage, to prove to the criminal standard that the decisions to charge and try have been taken, or if not, that the requested person’s absence is the sole reason for that failure: [28] – [31].[22]These statements were approved by the Divisional Court in Puceviciene v Prosecutor General’s Office of the Republic of Lithuania [2016] 1 WLR 4937. Lord Thomas CJ gave guidance on the meaning of decisions to charge and try under section 12A EA 2003:
“54 In explaining the requirements, it will be necessary to deal with the issue of formality and contingent or conditional decisions. We see no reason why any formality is required in relation to the making of a decision, as a prosecutor is entitled to make a decision to try a defendant before implementing any formal steps necessary, unless the procedural law of the requesting state prevents informality. Furthermore, in our view, a decision to try is nonetheless a decision to try even if it is conditional or subject to review. We find the judgment of the Irish Supreme Court in Olsson very persuasive in these respects, as we have stated at paragraph 45 above. There will, for example, be a decision to try, even if it is taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try. 55 However, although the focus will be on the decision to try, as we have set out at paragraph 50.vi), it may be necessary for the court to receive additional information as to whether there has been a decision to charge. It will usually be clear from the statement in the EAW that there has been a decision to charge as, in general, the request for the surrender of a person for the purposes of criminal prosecution cannot be made unless there has been such a decision. If that it is not clear from the EAW, the meaning of a decision to charge may have to be explained. In our view, a decision to charge is the decision which is made when there is sufficient evidence under the relevant procedural system to make an allegation that the defendant has committed the crime alleged. As the decision can be conditional upon hearing what the defendant has to say, such a decision can have been made even if it is necessary to put the allegation to the defendant and hear what he has to say before confirming the decision and proceeding to make the charge. 56 A decision to try is simply a decision where the relevant decision maker (who may be a police authority, prosecutor or judge under the relevant procedural system) has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made. In some systems, it may be the case that the decision to make the allegation that the person has committed a criminal offence will also be a decision that the matter will proceed to trial, subject to hearing what the defendant has to say or to subsequent review. In England and Wales, the decision to charge will almost always be the decision to try. In other systems it may not be and a separate decision to try has to be made, even though that decision may be conditional or contingent upon other matters. Again for the reasons we have given a decision is a decision even if informal.”
[23]In Doci v Court of Brescia, Italy [2016] EWHC 2100 (Admin), the Divisional Court adopted and applied the guidance given in Puceviciene cited above. However, Beatson LJ said, at [35] – [36], that an expressed firm intention to make a decision to charge or try was not sufficient. The statutory language requires a decision to have been made, whether formally or informally.[24]I am grateful to both counsel for providing me with material explaining criminal procedure in Germany. In summary, criminal investigations are conducted by the public prosecution office, assisted by the police. By section 170 of the German Code of Criminal Procedure (“the Code”), “if the investigations offer sufficient reason for preferring public charges, the public prosecution office shall prefer them by submitting a bill of indictment to the competent court”, which in this case was the High Court of Augsburg. The court then considers the indictment and the evidence. By section 203 of the Code, the “court shall decide to open main proceedings if in the light of the results of the preparatory proceedings there appear to be sufficient grounds to suspect that the indicted accused has committed a criminal offence”. If there are insufficient grounds, the court may terminate the proceedings under section 204. Before the court decides on the opening of the main proceedings, the court has power to “order individual evidence to be taken to help to clear up the case” under section 202.[25]According to Attorney Palme, these preparatory proceedings are generally conducted on the papers, without a hearing. However, the main proceedings must be conducted in the presence of the defendant, and so if the defendant is absent, the court may provisionally terminate the proceedings under section 205.[26]The Code provides, so far as is material:
“Chapter 11 Preparation of the Public Charges Section 169a [Conclusion of Investigation] If the public prosecution office is considering preferment of public charges, it shall make a note of the conclusion of the investigation in the files. Section 170 [Conclusion of the Investigation Proceedings] (1) If the investigations offer sufficient reason for preferring public charges, the public prosecution office shall prefer them by submitting a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings…. ….. Chapter IV Decision Concerning the Opening of the Main Proceedings Section 199 [Decision to Open the Main Proceedings] (1) The court which is competent for the main hearing shall decide whether main proceedings are to be opened or whether proceedings are to be provisionally terminated. Section 200 [Contents of the Bill of Indictment] (1) The bill of indictment shall indicate the indicted accused, the criminal offence with which he is charged, the time and place of its commission, its statutory elements and the penal provisions which are to be applied (the charges). In addition, the evidence, the court before which the main hearing is to be held, and defence counsel shall be indicated. If witnesses are designated, their place of residence or whereabouts shall be indicated, whereby indication of the full address shall not be required. In the cases referred to in Section 68 subsection (1), second sentence, and subsection (2), first sentence, indication of the name of the witness shall be sufficient. Where a witness is mentioned whose identity is not to be revealed either wholly or in part, this fact shall be indicated; the same shall apply mutatis mutandis to the confidentiality of the witness’s place of residence or whereabouts. (2) The bill of indictment shall also set out the relevant results of the investigation. This may be dispensed with if the charges are preferred before the criminal court judge. Section 201 [Communication of the Bill of Indictment] (1) The presiding judge shall communicate the bill of indictment to the indicted accused and at the same time shall summon him to state, within a time limit to be set, whether he wants to apply for individual evidence to be taken before the decision on opening main proceedings, or whether he wants to raise objections to the opening of main proceedings. The bill of indictment shall also be communicated to the private accessory prosecutor and to the person entitled to private accessory prosecution who has applied therefor; Section 145a subsections (1) and (3) shall apply mutatis mutandis. (2) The court shall decide on the applications and objections. The decision shall not be contestable. Section 202 [Supplementary Investigations] Before the court decides on the opening of main proceedings, it may order individual evidence to be taken to help to clear up the case. The order shall be incontestable. Section 202a [Discussion of the Status of Proceedings] Where the court is considering the opening of main proceedings, it may discuss the status of the proceedings with the participants, insofar as this appears suitable to expedite the proceedings. The essential content of this discussion shall be documented. Section 203 [Condition for Opening Main Proceedings] The court shall decide to open main proceedings if in the light of the results of the preparatory proceedings there appear to be sufficient grounds to suspect that the indicted accused has committed a criminal offence. Section 204 [Refusal to Open Main Proceedings] (1) If the court decides not to open main proceedings, the order must show whether its decision is based on factual or on legal grounds. (2) The indicted accused shall be notified of the order. Section 205 [Provisional Termination] The court may, by order, provisionally terminate the proceedings if the absence of the indicted accused or some other personal impediment prevents the holding of the main hearing for a considerable time. The presiding judge shall secure the evidence, so far as this is necessary. … Section 206a [Termination in the Case of Impediments] (1) Where a procedural impediment arises after the main proceedings have been opened, the court may terminate the proceedings by an order made outside the main hearing. (2) The order shall be contestable by immediate complaint. Section 207 [Order Opening Main Proceedings] (1) In the order opening main proceedings, the court shall admit the charges for the main hearing and designate the court before which the main hearing is to take place. (2) The court shall specify in the order the amendments subject to which it admits the charges for the main hearing, if 1. charges have been preferred for more than one offence and for some of them the opening of the main proceedings is refused; 2. in accordance with Section 154a, prosecution is to be limited to individual severable parts of an offence, or such parts are to be reintroduced into the proceedings; 3. the act is legally evaluated differently from the bill of indictment; or, 4. in accordance with Section 154a, prosecution is limited to some of several violations of the law committed through the same criminal offence, or such violations of law are reintroduced into the proceedings. (3) In the case of subsection (2), numbers 1 and 2, the public prosecution office shall submit a new bill of indictment corresponding to the order. The presentation of the relevant results of investigations may be dispensed with. …..”
Preparation of the Public Charges Section 169a [Conclusion of Investigation] Section 170 [Conclusion of the Investigation Proceedings] Chapter IV Decision Concerning the Opening of the Main Proceedings Section 199 [Decision to Open the Main Proceedings] Section 200 [Contents of the Bill of Indictment] Section 201 [Communication of the Bill of Indictment] Section 202 [Supplementary Investigations] Section 202a [Discussion of the Status of Proceedings] Section 203 [Condition for Opening Main Proceedings] Section 204 [Refusal to Open Main Proceedings] Section 205 [Provisional Termination] Section 206a [Termination in the Case of Impediments] Section 207

[Order Opening Main Proceedings]

[27]Turning to the decision of the DJ, I consider that he directed himself in law fully and accurately. I do not accept that his decision was flawed by his reliance upon the Divisional Court’s ruling in the case of Conrath v Germany (which was heard with Puceviciene), to the effect that:
“128 (iv) The conclusion from that material was that the prosecutor was going to charge and try AC when he could find him and conclude the procedures. That is sufficient, as he had made the relevant decisions. (v) In any event, the further information received …. in our judgment clearly established that the necessary decisions had been taken. The information was that AC had not been “indicted” but that in view of the strong suspicion, he would be “indicted” immediately upon extradition, On that material, the judge was bound to have been sure that a decision to “indict” had been taken. That ought to have satisfied him beyond doubt … that decisions to charge and to try had been taken.”
[28]Although Lord Thomas said, at [83], that the facts of the individual appeals were likely to be of little, if any, assistance in subsequent cases, I well understand why the DJ was assisted by seeing the way in which the Divisional Court applied its general guidance to the facts, particularly as it related to a similar issue in the same jurisdiction. It is also relevant to note that the DJ was grappling with an important new judgment, handed down by the Divisional Court a week before his hearing.[29]The EAW stated, in Box B:
“The Appellant is charged with having committed the offences listed in the European Arrest Warrant, and the European Arrest Warrant is issued with the objective of arrest and extradition of the Appellant to Germany, so that he may be subject to prosecution for the offences there.”
(emphasis added)[30]The Public Prosecutor stated in his letter of 6 June 2016 that “the indictment of Din will be made as soon as possible”.[31]In my judgment, the DJ was entitled to rely upon the judgments in Kandola, Puceviciene and Conrath in support of his conclusions that the decisions to charge and try had been made because the EAW stated that he had been “charged” and the letter from the Public Prosecutor indicated that he had made a decision to issue an indictment, which both confirmed the decision to charge and the decision “to go ahead with the process of taking to trial the Appellant against whom the allegation is made” (per Lord Thomas in Puceviciene at [56]). As in Conrath, the informal decision by the prosecutor to issue an indictment was sufficient; it was not necessary for the indictment actually to have been issued to demonstrate a decision to try for the purpose of section 12 EA 2003.[32]By the date of the appeal, the public prosecutor had written on 6 February 2017 to the Crown Prosecution Service stating “I have lodged the indictment on 14.10.2016 … to the Court in Augsburg”. He added that the court could not try the Appellant in his absence and so his view was that “the court will make a decision under Section 205 of German StPO”. Section 205 of the Code provides for provisional termination if the trial cannot proceed because of the defendant’s absence.[33]In the light of the lodging of the indictment, the Appellant had to concede that the decision to charge had been made. However, he submitted that unless or until the Court decided to “open main proceedings” under section 207 of the Code, applying the test in section 203, the decision to try had not yet been made. He submitted that it was apparent from the Code and the evidence of Attorney Palme that the court was the competent body to make that decision, not the public prosecutor.[34]I cannot accept the Appellant’s submission. Under the Code, the trial process formally commences once the public prosecutor concludes the “investigation proceedings” and submits a bill of indictment to the competent court (sections 170 and 200). The competent court then embarks upon “preparatory proceedings” (section 203) to decide whether there are sufficient grounds against the “indicted accused” to open the “main proceedings”. Although it is a preliminary stage, during which further evidence may be adduced, charges amended, and the criminal proceedings may be terminated altogether, I have no doubt that these preparatory proceedings in Chapter IV of the Code are part of the trial process, triggered by the submission of the indictment. It is incorrect to say that the trial process only begins once there has been a decision by the court to open main proceedings.[35]My conclusion is that the Appellant’s ground of appeal under section 12A cannot succeed.

Conclusions

[36]For the reasons set out above, the appeal is dismissed.

Cited in 3 later judgments