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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fox v Public Prosecutor's Office of Frankfurt am Main Germany [2017] EWHC 3396 (Admin) (21 December 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3396.html Cite as: [2017] EWHC 3396 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2017

LORD JUSTICE HAMBLEN :

Introduction

1. This is an appeal against the judgment of District Judge Tempia given on 6 April 2017 whereby she found that the extradition request of 21 November 2016 relating to six allegations of tax evasion met the requirements of section 12A Extradition Act 2003 ("the Act") and accordingly ordered the Appellant's extradition to Germany.
2. The Appellant also appeals the judgment of District Judge Tempia given on 31 August 2017 whereby she found that the extradition request of 24 April 2017 relating to four similar allegations of tax evasion also met the requirements of section 12A of the Act, permission to appeal having been granted at the appeal hearing.
3. The sole ground of appeal is that the District Judge was wrong to find that there were no reasonable grounds to believe that the competent authorities in Germany have not yet made the decision to try the Appellant.
4. In summary, the Appellant contends that the competent authority to make the decision to try is the Court rather than the Public Prosecutor and, as is common ground, no such Court decision has been made. It is equally common ground that if the Public Prosecutor is a competent authority to make the decision to try, such a decision has been made.
5. We are told that there are other pending appeals which raise similar issues concerning proceedings in Germany.

Factual and Procedural Background

6. The first extradition request was made by a European Arrest Warrant ("EAW1") issued by the Public Prosecutor's Office of Frankfurt am Main, Germany on 21 November 2016 and certified by the National Crime Agency ("NCA") on 5 December 2016. It relates to six allegations of aggravated tax evasion between 8 July 2010 and 11 October 2010. It is alleged that the Appellant was the sole associate-manager of a company which evaded tax to the sum of 10,539,315.02 euros.
7. The maximum sentence which can be imposed is one of 10 years' imprisonment. A domestic warrant was issued for the arrest of the Appellant on 17 November 2016.
8. Further information in respect of EAW1 dated 21 December 2016 advises that the Appellant was not arrested or questioned but that the authorities were aware that he lived in the UK and therefore did not attempt to trace him until "the investigations of the tax investigation offices were finished" and that "only when the investigations were finished the Frankfurt am Maim Staatsanwaltschaft took over the case and applied for an arrest warrant". The final report of the tax investigation office was produced on 20 March 2016.
9. A second letter of further information relating to EAW1, dated 10 January 2017, responds to the question - 'has the decision been made for James Fox to stand trial? If that decision has not been made yet, is that because James Fox is not in the country?' – as follows;

"It has already been decided to charge the accused. However, the charge could not be brought yet, because the accused was not available for the proceedings until now."

10. EAW2 was issued on 24 April 2017 and certified by the NCA on 28 April 2017. It seeks the Appellant's return to stand trial in relation to 4 instances of aggravated tax evasion committed between 30^th March 2010 and 4 May 2010. The charges relate again to the Appellant's role as sole associate-manager of the same company which evaded tax in the sum of 8,093,933.84 euros. A domestic warrant was issued for the arrest of the Appellant on 24^th April 2017.

Legal background

11. Section 12A of the Act provides:

"12A Absence of prosecution decision

(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.

(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."

12. The purpose for which section 12A was introduced was addressed by the Divisional Court in the leading case of Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862, [2016] 1 WLR 4937 in the judgment of Lord Thomas CJ at [73]:

"73. … The mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody whilst the alleged crime continued to be the subject of lengthy investigation without decision to charge and try having been made. It was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction. The application of the provisions of section 12A secures that the requesting judicial authority will be in a position to get on immediately with the next step in its prosecution process as soon as the requested person is surrendered. The purpose of section 12A is served by confining it to the issues it actually raises."

13. The general approach to the interpretation of section 12A was considered in Puceviciene at [11] by reference to the decision of the Divisional Court in Kandola v Generalstaatwaltschaft Frankfurt, Germany, Droma v State Prosecutor Nurnburg-Furth, Bavaria, Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097, it being stated as follows:

"11. The background to section 12A is helpfully set out in paras 17–25. The Explanatory Memorandum to the Act which inserted section 12A is quoted to show that the concepts of "decision to charge" and "decision to try" in section 12A need a "cosmopolitan" interpretation, that is to say one which accommodates and reflects the criminal procedures of other countries, rather than those in the UK. Such an interpretation would avoid emplacing significant but unintended barriers to extradition on a speedy basis, while still respecting the purpose of section 12A, to

"ensure that a case is sufficiently advanced in the issuing state (that is, there is a clear intention to bring the person to trial) before extradition can occur, so that people do not spend potentially long periods in pre-trials detention following their extradition, whilst the issuing state continues to investigate the case."

14. In Kandola the general approach and the importance of a "cosmopolitan" approach to interpretation was explained by Aikens LJ as follows at [26]-[27]:

"26. There is a trans-national interest in bringing those accused of serious crime to justice, as Lord Steyn noted in In re Ismail [1999] 1 AC 320, 327. He considered that extradition treaties and extradition statutes should therefore be accorded "a broad and generous construction so far as the texts permit it in order to facilitate extradition". That point was noted by Lord Hope of Craighead in the Cando Armas case [2006] 2 AC 1, para 24, which concerned the construction of the 2003 Act itself. Lord Hope also pointed out that individual liberty was also at stake, so that "generosity must be balanced against the rights of the persons who are sought to be removed under these procedures…

27. It seems to us that these are factors to be borne in mind in construing section 12A. It was clearly inserted in Part 1 with the aim of ensuring that those extradited under "accusation" EAWs should not be subject thereafter to long periods in detention whilst investigations were carried out in the issuing state. At the same time, we must not approach the construction of the phrases "decision to charge" and "decision to try" in section 12A by reference solely to the domestic law and practice of criminal procedures in England and Wales or even the UK as a whole. Instead we must construe it in a "cosmopolitan" way…"

15. In determining whether a decision to charge and a decision to try has been made the Court in Puceviciene said that regard should be had to the following matters at [50]:

"(i) The background to the insertion of the provision into the Act as summarised in Kandola's case [2015] 1 WLR 5097: see para 11 above.

(ii) The use of the terms "decision to charge" and "decision to try" plainly does not imply that the case must be trial ready. (a) We have referred at para 40, by way of example, to the position in England and Wales, where a decision to charge and the decision to try (by, for example, the fixing of a trial date within a few days of an arrest in an indictable only case) can be taken at a very early stage of the proceedings whilst the investigation is still underway and it is known that the trial might be at some considerable time away. This is common in complex cases where the court needs to set a timetable to trial. (b) It is necessary to respect, under the principle of mutual confidence which underpins the Framework Decision, the responsibilities of the judiciaries in member states of the EU to bring cases as expeditiously as possible to trial after the decision to charge and try has been made. It is not for the courts of England and Wales to supervise under the guise of section 12A the way in which such courts progress the cases before them.

(iii) The term used in the section is "a decision to charge", not "charged". This plainly implies that the focus should be on the word "decision", not any formal step.

(iv) It is often the case that in England and Wales a decision is made to charge a person and to try that person at a very early stage, where that person is a terrorist, leader of a gang or a danger to the public. It is therefore necessary to approach the meaning of section 12A on the basis that Parliament must have had this factor in mind and been appreciative of the fact that the consequences of finding that there has been no decision to charge and no decision to try in the member state where the crime was committed will be that the persons detained or on bail under an EAW must be discharged.

(v) The majority of persons detained or on bail subject to the EAW are sought (as these appeals all illustrate) by the prosecuting authorities or courts of their own nation state. It cannot have been intended by Parliament to make it easier for such persons to continue to reside in the UK or to make the task of progressing a prosecution more difficult.

(vi) It is also important to emphasise that the real focus of section 12A is always on whether there has been a decision to try. If there has been no decision to try, the question of whether there has been a decision to charge is irrelevant. If there has been a decision to try, a decision to charge will inevitably have been taken either earlier or at the same time as the decision to try. The words "decision to charge" in reality add nothing to the achievement of the purpose, actual or supposed, of the Act or to its effect. They add nothing at either the "reasonable grounds" stage or at the second stage where the burden lies on those representing the competent authority of the requesting state to prove that the decisions have been taken."

16. In relation to the meaning of a decision to charge and a decision to try the Court gave the following guidance at [55]-[56]:

"55. …. 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."

17. With regard to the formality and conditionality of such decisions the Court observed as follows at [54]:

"54. ….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 none the less a decision to try even if it is conditional or subject to review. We find the judgment of the Irish Supreme Court in Olsson's case [2011] 1 IR 384 very persuasive in these respects, as we have stated at para 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."

The German Criminal Code

18. In Puceviciene the Court noted at [61] that translations of foreign penal codes may, if available, "inevitably be of assistance to judges in determining disputed questions". A copy of the German Criminal Code was available before the judge, although she concluded that she should not have regard to it.
19. 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.

….."

20. As set out in the Code, and confirmed by the evidence that was before the judge from a German lawyer, Mr Max Muller, there are three stages of a German criminal proceeding: (1) the "investigation stage", during which the investigation is carried out by the Prosecutor's Office and the person concerned is referred to as "an accused person"; that stage concludes with the preferring of a bill of indictment; (2) the "interim stage" when the Court assesses the investigation file and the indictment and decides whether to accept the indictment for trial; the accused is now called the "indicted person", and (3) the 'main stage' after acceptance of the indictment when the matter goes forward for trial and the person is referred to as "the defendant".
21. In the present case it was common ground that the bill of indictment had not been preferred and that the investigation stage had therefore not concluded. The Appellant contends that only the Court is competent to make the decision to try and that this does not occur until it decides to open the main proceedings.

Decisions relating to German criminal procedure

22. In re Ismail [1999] 1 AC 320 the House of Lords was concerned with whether the appellant was a person "accused" of extraditable offences in Germany for the purpose of section 1(1) of the Extradition Act 1989.
23. Upon the application of the Senior Public Prosecutor of Bochum a judge had issued a warrant of arrest in respect of the appellant. The warrant recited that "the accused is charged with the following…". On the basis of the warrant extradition was requested.
24. There was expert evidence before the Court which described the three stages of criminal procedure in Germany in similar terms as above.
25. The appellant contended that he was not an accused person because (i) no decision had been taken in Germany to launch criminal proceedings and (ii) a formal charge is necessary before a suspect can be an "accused" person.
26. The House of Lords dismissed the appeal. In deciding that he was an "accused" person Lord Steyn, with whom their other Lordships agreed, stressed three matters: (i) the judge had been satisfied on compelling evidence that the appellant was guilty of the alleged offences before ordering the warrant of arrest to be issued; (ii) the Public Prosecutor had to be satisfied that there was sufficient evidence to justify criminal proceedings against the appellant in order to apply for the warrant of arrest, and (iii) the warrant states that "the accused is charged" with the alleged offences.
27. It was also held that in these circumstances the appellant was a person "against whom the competent authorities of the requesting party are proceeding for an offence" within the meaning of Article 1 of the European Convention on Extradition which had been incorporated into United Kingdom law.
28. Although In re Ismail involves different statutory wording, the Respondent submits that it is significant that it similarly concerned proceedings which had not yet reached the preferring of a bill of indictment. The House of Lords was nevertheless satisfied that "the competent authorities" were proceeding against the appellant for an offence. That was before the Court became involved at the interim stage. It is further submitted that it is inherently unlikely that, nearly 20 years after the decision in In re Ismail, and despite everything that has been done to streamline the extradition process, Parliament can have intended, through the introduction of section 12A, to bar previously permissible extraditions, which were based on the prosecutor's decision to conclude the investigation and bring an accused to trial, and the German Court's decision to issue a domestic arrest warrant, and thereby fundamentally to alter the stage at which it can be said that a decision to try has been taken by the competent authorities to a much later stage, namely the conclusion of the preliminary proceedings when the Court orders the main proceedings to be opened.
29. The Appellant submits that In re Ismail is of no assistance as it involved a different statute, different statutory wording and pre-dated the introduction of section 12A.
30. In Puceviciene, one of the cases before the court, that of Andreas Conrath ("AC"), concerned extradition to Germany. The surrender of AC was sought at the same stage in the procedure as in the case of the Appellant, namely (i) at the conclusion of the investigation, (ii) following a decision by the prosecutor to charge and try the accused, (iii) after an application for a domestic warrant had been granted by the Court, but (iv) before an indictment had been issued by the prosecutor - see [121].
31. The Court concluded at [128] that the judge had been wrong to find that there were reasonable grounds for believing that a decision to try had not been taken. The reasons given included:

"(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) …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."

32. In the case of Din v Germany [2017] EWHC 475 (Admin) Lang J considered and applied Puceviciene in relation to a case concerning extradition to Germany. She similarly concluded that a decision to try could be made by the Public Prosecutor prior to the issue of any indictment. She stated as follows at [29]-[34]:

"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."

33. The Appellant submits that these two recent decisions on extradition to Germany can be distinguished because in neither of them was the issue distinctly raised of whether the Public Prosecutor was a competent authority to make the decision to try. This issue was, by contrast, distinctly raised in relation to broadly comparable Italian procedures in Doci v Court of Brescia, Italy [2016] EWHC 2110 (Admin) and Prenga v Court of Florence, Italy [2016] EWHC 3002 (Admin). In both those cases it was held that it was the judge rather than the prosecutor who had institutional competence to make the decision to try.
34. In Doci the relevant judge was the Guidice per le Indagini Preliminari or Judge for Preliminary Investigations ("the GIP"). Beatson LJ explained as follows at [32]-[34]:

"The decision to try

32 The same general points on formality and contingency apply to the decision to try. Again, the broad practical and purposive interpretation, applying the words to the various systems of category 1 territories, the "cosmopolitan approach", applies. The decision to try is made when the relevant decision-maker "has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made", i.e. on the allegations made against him: Puceviciene [56]. The court stated (at [56]) that "a decision is a decision even if informal". Puceviciene at [55] explains that the statement in the EAW that surrender is sought for the purpose of conducting a criminal prosecution usually shows that there has been a decision to charge, and (at [56]) that may also be the same as the decision to try. Indeed, in the absence of other material, the standard statements in the EAW should suffice for both. After all, the decision to charge shows, in the absence of anything else, that there is a decision to try.

33 There may be systems where the decisions are different, notably where the decision to charge and the decision to try are made by different bodies. Italy provides an example, and this judgment reflects the need for the decision, informal or contingent, to be taken by the person who has the institutional competence to take it. Here, it is the public prosecutor who takes the decision to charge, and the GIP under the immediate trial procedure, who takes the decision to try. But that does not require the formal stages under Italian criminal procedure to have been reached where the formal and final decision are taken. That is not the correct construction of section 12A. It does not look to the nearest equivalent in the requesting state to the English position, nor to the formal position under the requesting state's law.

34 We note that it was agreed in oral submissions and in the Skeleton Argument from Mr Lewis, [51], and is entirely borne out by Professor Sacccucci's report, that it is the GIP in the immediate procedure who takes the decision to try. The post-hearing written submissions appear to suggest that it is the GUP, see paragraphs 11 and 35, but that is just wrong for a case proceeding in the immediate procedure, as both these are.

35 Puceviciene does not support the proposition that an intention to decide to charge or to try is the same as a decision to charge or to try. That intention to decide simply shows that the relevant decision has not in fact been made. Nor is it helpful to talk of a firm and settled intention. We can see how that language arose when the question was whether a formal decision was required, or if a decision could only be made once a particular procedural step had been taken. But that is not the right approach. The statutory language requires a decision. If forming the firm and settled intention is a decision, as it may well be, then it should be so described and analysed. If it is not, it cannot become one however firm and settled the intention may be."

35. In that case the evidence showed, as was agreed, that under Italian criminal procedure in the immediate procedure it is the GIP who takes the decision to try. It was held on the facts that he had done so.
36. In Prenga expert evidence from a Professor Maffei had been provided as to Italian criminal procedure, as set out at [22] of the judgment. In summary, the evidence was that following the initial investigation phase, an Italian prosecutor has the duty to decide to prosecute or seek dismissal. Prosecution is mandatory unless the information gathered is incapable of supporting the accusation at trial. The decision to prosecute is preceded by issuing a formal notice closing the investigation, making explicit reference to intention to prosecute the suspect. The decision to charge is thus taken by the prosecutor, following which a preliminary hearing takes place before a single judge, the Guidice per l'Udienza ("GUP"), acting as a filter before cases go to trial. The decision to try is taken by the single judge at that hearing.
37. In the light of that evidence Holroyde J concluded that only the GUP could make the decision to try. At [40] he stated as follows:

"40. However, the evidence before the DJ understandably did not go into such an analysis. The important point for present purposes, therefore, is that the evidence before the DJ did not permit her finding that the decision to try fell to be made, and had been made, by the prosecutor. On the evidence as it stood before the DJ, including the expert evidence of Prof Maffei, it seems to me that she was entitled to conclude that the decision to charge had been made (even though no formal request for committal to trial had yet been made), because that was a decision for the prosecutor and it was clear from the evidence as a whole that the prosecutor had decided to pursue the appellant to trial. In my judgment, however, the DJ fell into error in her conclusions that the decision to try fell to be made by the prosecutor and had in fact been made by the prosecutor. I accept Mr Watkins' submission that the evidence of Prof Maffei cannot be ignored, even though it may never have been heard if the decision in Kandola had been handed down before directions were given permitting the appellant to adduce expert evidence before the DJ. The evidence was in fact given, and with respect to the DJ she either misunderstood, or failed to give appropriate weight to, the aspect of it which I have identified above. I therefore accept Mr Watkins' submission that she was wrong to regard the intention of the prosecutor (which clearly was an intention to take the appellant to trial) as the making of a decision which – on the evidence — only the GUP could make."

38. In the event, further evidence was admitted that showed that by the time of the appeal the decision to try had been made by the GUP and it was accordingly held that there was no bar to extradition.

The judgments

39. In both judgments, the judge considered the guidance provided by the Puceviciene case and the meaning there given to a decision to try.
40. In her judgment relating to EAW1 the judge gave the following reasons for her decision:

"87. I have read and heard the evidence of Mr Muller and been referred to the cases of Din and Prenga by Ms Hinton. Mr Muller took me through the German criminal procedure. In his opinion, the case was still at the investigation stage because a bill of indictment had not been sent to the court and the decision to try Mr Fox had not yet been made by the prosecutor. Once the bill of indictment is sent to the court the case enters the main stage of proceedings and a decision to try has been made. However, when cross examined and asked whether the prosecutor had made a decision that Mr Fox should stand trial for the offence, Mr Muller said they had done so but it would depend on receiving a statement from Mr Fox. However, if Mr Fox fails to provide a statement the prosecutor would indict the case.

88. In respect of the case of Din which Ms Hinton relies on to support her case, I have not been referred to the German Code of Criminal Procedure and I cannot use evidence adduced in other cases (as conceded by Ms Hinton). Each case is decided on its own facts. In respect of the case of Prenga Ms Hinton submits that a judge has to make the relevant decision to try when an indictment has been filed.

89. She concedes the decision to charge has been made.

90. The evidence supplied from the JA shows that a decision to charge and a decision to try have been made. The warrant has the generic heading that Mr Fox is to be surrendered for the purpose of conducting a criminal prosecution. The further information supplied confirms that the investigation against him has concluded, a decision has been made to charge him and a decision has been made to try against him by intending to bring charges against Mr Fox as soon as he is extradited and he will be give a fair trial. It is clear from the further information and, given the dicta in Pucevieiene, that both decisions have been made. Mr Fox's own expert corroborates this.

91. Given the evidence before me Mr Fox has not established that there are reasonable grounds for believing that one or both to the two decisions has not been taken and that the reason for this was not solely his absence from the requesting state."

41. In her judgment relating to EAW2 the judge's reasoning was as follows:

"33. I find that Mr Fox has not demonstrated that a decision to try has not been made. I do not accept that the information contained in the second warrant makes it clear beyond doubt that the prosecution have not finished investigating the alleged criminality. It is clear from the warrant that the conduct, in respect of Mr Fox's role as associate-manager of Badaro GmbH, relates to 4 offences between 30^th March 2010 and 4^th May 2010, which are different dates from those contained in the previous warrant. This satisfied me that on further investigation of the company, as submitted by Ms Bostock, further criminal activity had been revealed resulting in this second EAW being issued.

34. The heading of the warrant states that the RP is requested to surrender for the purpose of conducting a criminal prosecution. The case of Din states that a German prosecutor can make a decision to try as does the case of Puceviciene where Lord Thomas CJ stated at paragraph 56 that, "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". The warrant is signed by a prosecutor.

35. Therefore, I do not accept Ms Hinton's submission that a German prosecutor does not have the institutional competence for the purpose of section 12A, given the above.

36. In respect of the absence of a Bill of Indictment, I accept Ms Bostock's submission that, on reading the warrant, it is for the purpose of conducting a criminal prosecution, that is has been issued by a prosecutor, who can take the decision to try, and an Indictment is not necessary.

37. Similarly, because Mr Fox is going to be interviewed does not mean a decision to try Mr Fox has not been made, given my conclusions about the warrant and the prosecutor's ability to make the decision to try.

38. In respect of section 12B Mr Fox has to make an application to be interviewed in another way which would be less coercive than extradition, but he has not requested an adjournment under section 12B. In any event, he is unlikely to have such a request granted given the German authorities indicated in the previous proceedings they would not consider anything other than extradition. This warrant contains similar conduct.

39. I also agree with Ms Bostock that Prenga has no relevance to this case because it relates to a different jurisdiction, Italy.

40. I am satisfied so I am sure that a decision to try has been taken and I order Mr Fox's extradition under section 12A."

The parties' submissions

42. The Appellant makes a number of criticisms of the judgments. In particular, it is submitted that:

(1) The judge was wrong on the evidence to decide that a decision to try the Appellant had been taken by the competent authority.

(2) The decision in Din is wrong, alternatively it can be distinguished on the evidence. It is in conflict with the decisions in Doci and Prenga which concerned analogous Italian criminal procedure.

(3) The judge fell into error principally in conflating the intent of the prosecutor with the decision by the competent Court, and, in particular, she failed to analyse who the relevant decision-taker was and wrongly seems to have regarded herself as debarred from looking at the German Criminal Code, contrary to the encouragement in Puceviciene at [61].

(4) The judge placed undue reliance on the generic heading of the EAW which is present in every case. If this heading had the effect she suggests this would render the requirement in s12A meaningless.

(5) The judge erred in placing reliance on the statement of the Prosecutor's Office that "it is intended to bring charges against Mr Fox after his extradition and after granting him a fair hearing" as evidence of a decision to try as this approach confused the decision to bring charges with the decision to try and there is no recognition of the fact that whilst that may be the intention and indeed the desire of the Prosecutor, it is not a decision which can be taken by him. German procedure requires that decision to be taken by the competent Court.

43. The fundamental point underlying the Appellant's submissions is that under the German Criminal Code the decision to try is made and can only be made by the Court. It cannot be made by the Public Prosecutor since he is not competent to make such a decision. It is stressed that the Public Prosecutor's procedural role is confined to the investigative stage. That stage has yet to conclude as no indictment has been preferred. A decision to charge has been taken, because that is in the gift of the Prosecutor's Office. But whether the decision to try is at the interim or main stage, no Court has yet considered the case and thus no body with institutional competence to make the decision has done so.
44. The Appellant contends that the investigative nature of the current proceedings is highlighted by the fact that EAW2 was issued after the conclusion of the extradition hearing on EAW1. This shows that the investigation was not completed, as does the offer of an interview of or statement from the Appellant.
45. The whole purpose of s12A Extradition Act was to prevent a person being extradited on one EAW, only to face a lengthy period in custody while the investigation was expanded to include other matters and/or similar offending over different time periods.
46. The Respondent's main submissions may be summarized as follows:

(1) A cosmopolitan and broad purposive approach should be taken to construing the phrases 'decision to charge' and 'decision to try' within section 12A.

(2) In re Ismail, the Conrath decision in Puceviciene, and the decision in Din demonstrate that under German criminal procedure the decision to try may be made by the Public Prosecutor.

(3) Doci and Prenga were decisions on their own facts in relation to a different country's criminal procedure and were based on the expert evidence then before the court.

(4) The issue of a domestic arrest warrant supports the conclusion that the decision to bring proceedings had been made by the competent authority.

(5) The competence of the Public Prosecutor to make a decision to try is supported by the fact that (i) the Public Prosecutor is an Issuing Judicial Authority for the purposes of the issue of the European Arrest Warrant itself and (ii) in that capacity the Public Prosecutor is a 'Competent judicial authority' for the purposes of Article 6(1) of the Framework Decision on the European Arrest Warrant June 2002, and can be taken to understand the stage at which it is appropriate to issue a European Arrest Warrant. In that context, the Court called upon to execute the European Arrest Warrant can derive comfort from the terms of the Warrant itself even though it may be pro forma language.

Decision

47. The central issue on this appeal is whether, on the evidence before the court, under German criminal procedure a decision to try can only be made by the Court rather than the Public Prosecutor. If that is so, then it is common ground no such decision has been made. If that is not so, then it is equally common ground that a decision to try has been made.
48. As was made clear in Puceviciene, a decision to try is "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 my judgment, the judge was correct to conclude that it was the Public Prosecutor who made that decision and that he was competent to do so. In particular:

(1) Although both EAW1 and EAW2 were issued during the "investigation stage" of the proceedings, it is clear that this stage is not limited to investigatory matters.

(2) During the "investigation stage" the Public Prosecutor may move for the issue of a domestic arrest warrant and then an EAW. The purpose of seeking a person's arrest may be "for the purpose of conducting a criminal prosecution", as was stated to be the case in both EAW1 and EAW2.

(3) Arresting someone for the purpose of a criminal prosecution suggests that a decision has been made to bring a prosecution against that person– i.e. to charge and try that person.

(4) Such an arrest may also be for the purpose of "pre-trial detention", as was stated to be the case in EAW2. Arresting someone for that purpose suggests that a decision has been made to have such a trial.

(5) The evidence of the Appellant's German lawyer, Mr Muller, is that before moving for an arrest warrant the Public Prosecutor must have "strong suspicion" based on the evidence gathered that the person has committed the identified offences – i.e. as stated by Lord Steyn in In re Ismail, sufficient evidence to justify criminal proceedings against that person.

(6) It is rightly accepted that moving for an arrest warrant involves at least a decision to charge. As stated by Beatson LJ in Doci at [32], "the decision to charge shows, in the absence of anything else, that there is a decision to try".

(7) There is an "absence of anything else in this case" – indeed it was accepted by Mr Muller and is accepted by the Appellant that the Public Prosecutor has made a decision to try the Appellant.

(8) The preferring of an indictment is clear evidence that a decision to try has been made. That is done during the investigation stage and it is done by the Public Prosecutor. Before preferring an indictment, the Public Prosecutor must have made a decision to do so. As stated in Puceviciene at [28(iv)], a decision to indict shows "beyond doubt" that "decisions to charge and to try had been taken"; see also Din at [31].

(9) In relation to EAW1 the further information provided explains that the only reason that "the charge could not be brought yet" (i.e. the indictment could not be preferred) was that the Appellant was not available (i.e. the decision to bring the charge/prefer the indictment had been made but was prevented from being brought into effect by the absence of the Appellant). As stated in Puceviciene at [28(v)], "that the prosecutor was going to charge and try [the Appellant] when he could find him and conclude the procedures" shows "he had made the relevant decisions".

(10) One would expect a decision to try to be made by a judicial authority which is competent to make that decision.

(11) The Public Prosecutor is a judicial authority for the purposes of the EAW. The EAWs state that the judicial authority issuing the warrant is the Public Prosecutor and that the warrant has been issued by "a competent judicial authority".

(12) There is no provision in the German Criminal Code which states that the Public Prosecutor is not competent to make a decision to try.

(13) Once a decision to try has been made and an indictment preferred the matter will go to trial unless the Court decides otherwise.

(14) A decision to try may be made even though it has not been formalised, even if it is conditional and even though investigations may be continuing – see Puceviciene at [50(ii)] and [54].

(15) As stated in Din at [34], the trial process commences at the "interim stage" after the indictment has been preferred. At that stage, the only decision to try is that which has been taken by the Public Prosecutor.

(16) If the decision to open the main proceedings was to be regarded as the decision to try this would mean that the decision to try is not taken until long into the trial process. One cannot have a trial process prior to a decision to try having been made.

49. The approach set out in Puceviciene and the decision there made on Conrath's case provide strong support for the conclusion set out above and the judge's decision in this case, as does the Din decision. The cases of Doci and Prenga involve a different criminal code and different evidence. They cast no doubt on the correctness of the decisions in relation to Conrath and in Din.

Conclusion

50. For all these reasons, I would dismiss the appeal.

Mr Justice Sweeney:

51. I agree.