by
Graeme Hall
Kandola and others v Germany and another [2015] EWHC 619 (Admin)
Aikens LJ and Nicol J
Kandola provides the definitive interpretation of section 12A of the Extradition Act (‘EA’) (in force since 21 July 2014) and the steps to be followed to ascertain whether extradition is barred due to the absence of a decision to prosecute. Clicking this link will take you to a copy of the judgment.
As a preliminary point, if the RP does not raise a challenge under s. 12A, there is a presumption that there has been a decision to prosecute [30]. Where the RP brings a challenge under section 12A, there is a two-stage test, which may be summarised as follows:
Stage 1
(i) Are there reasonable grounds to believe that the Requesting Authority (‘RA’) has not made the decision to charge the RP?
(ii) If not, are there reasonable grounds to believe that the RA has not made the decision to try the RP?
(iii) If either or both of the above questions are answered in the affirmative, are there reasonable grounds to believe that the failure to make the requisite decisions is not solely due to the RP’s absence?
Stage 2
(iv) If so, can the RA prove to the criminal standard that both of the requisite decisions to charge and try have been taken?
(v) If not, can the RA prove to the criminal standard that this is solely due to the RP’s absence?
Under Stage 1 (i) and (ii), the RP must persuade the judge that objectively there are reasonable grounds for believing that one or both of the requisite decisions have not been taken. In essence, the RP must persuade the judge that there is a real possibility that the requisite decision or decisions has/have not been taken: simple assertion will not suffice, but nor must the RP prove the requisite failure(s) ‘on the balance of probabilities’ [30]
If the EAW, read as a whole, is clear that the requisite decisions to charge and try have been taken, then the judge need enquire no further [31]. Further information from the RP should not be permitted to undermine clear statements in the EAW that the requisite decisions have been taken [32]. If it is unclear from the terms of the EAW whether the requisite decisions have been taken, the judge can consider extraneous material [32].
Where the requisite decisions have not been taken, or it remains unclear whether they have been taken, under Stage 1 (iii), the RP must then satisfy the judge that objectively there are reasonable grounds to believe that this failure is not solely due to his absence. Again, the burden falls on the RP and may require extraneous evidence: mere assertion is not sufficient [33].
If the RP can persuade the judge that there are reasonable grounds to believe that (i) the requisite decisions to charge and/or try have not been made, and (ii) that the RP’s absence is not the sole reason for that failure, the burden shifts to the RA to prove to the criminal standard that:
- A decision to charge has been made; and
- A decision to try has been made; or
- The failure to make either or both of the decisions is solely due to the RP’s absence [34].
The judgment suggests that such tests will ordinarily be met by further information from the RA answering the suggested questions at [34]. These statements may be challenged by the RP but protracted proceedings involving expert evidence are to be avoided.
Of note, in assessing (c), where a RA has failed to utilise without reasonable grounds the provisions of Mutual Legal Assistance under European and domestic law, the RA will not prove to the criminal standard that the sole reason for failing to make the requisite decisions is the RP’s absence ([38]-[43]).
Graeme Hall
