Patel v The Office of the Attorney General, Frankfurt

This is an appeal under Section 26 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Purdy made at the City of Westminster Magistrates’ Court on 2^nd September 2010 ordering the surrender of the appellant, Irfan Musa Patel, to the Office of the Attorney General, Frankfurt, Germany. Germany, being a designated Category 1 territory for the purposes of the 2003 Act, Part 1 of the act applies.

It is the appellant’s case that the proceedings against him in Germany are still in the investigative stage and that his presence is required in Germany to advance the investigation into the allegations against him and not so that he can be prosecuted. It is, of course, common ground between the parties that if extradition is sought for investigative purposes rather than prosecution as is required by S2 of the 2003 Act, surrender would be unlawful. The District Judge, it is submitted, was wrong to refuse to proceed by way of evidential inquiry into the stage which the proceedings in Germany had reached and to refuse to admit evidence from German lawyers upon which the appellant sought to rely.

Before turning to deal with the two grounds of appeal advanced by the appellant, it is necessary to set out in some detail the history of the proceedings so far.

On 27^th April 2010 Public Prosecutor [Julia] Trinte of the Office of the Attorney General, Frankfurt am Main issued a European Arrest Warrant (EAW) for the appellant’s arrest. The pro forma frontispiece of the warrant reads:

“This Warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

Section (b) of the Warrant states that the EAW is based on an arrest warrant issued by the District Court of Frankfort am Main on 27^th April 2010 which is described as an “arrest warrant for pre-trial custody”.

Section (e) of the Warrant sets out the offences alleged against the appellant as follows:

“As Managing Director of the company Lősungen 360 GmbH with seat in Germany, Irfan Musa Patel was involved in fraudulent VAT chains as a buffer trading with emissions allowances. Based on a common plan with missing traders, other buffers and the distributor he filed false prior VAT returns for the months of August, September, October, November, December 2009 and January 2010 and thus evaded turnover taxes totalling up to 554,779,813 Euros.”

The offences are stated to have been committed in Frankfurt am Main and the degree of the appellant’s participation in the offences is said to be “author of the crime as accomplice”. Later in the same section of the warrant the relevant provisions of the German Fiscal and Criminal Codes are set out. In Section (c) of the warrant the maximum sentence for a single offence is given as 10 years.

The EAW was certified by the Serious Organised Crime Agency on 20^th April 2010 and later that day the appellant was arrested at his home in Preston. At that time officers of HM Revenue and Customs, acting under the authority of a warrant issued under the provisions of Section 16 of the Crime (International Cooperation) Act 2003 and Section 8 of the Police and Criminal Evidence Act 1984, searched the appellant’s home. A notice given to the appellant at the time of the search by an officer of HM Customs and Excise is headed “Operation Chronicle” and explains that the appellant’s home had been searched “under UK law following a request from the German authorities in connection with a major international criminal fraud investigation” and that “[any] evidence obtained from this search would be examined by German law enforcement officers and maybe used in legal proceedings in Germany or elsewhere”.

The appellant first appeared before the Magistrates’ Court on 29^th April 2010 when an application to discharge the appellant, made on the basis that he had not been brought before the court as soon as practicable, as required by Section 4(3) of the Act, was refused. It was stated on the appellant’s behalf that his case would be that he was sought in Germany not for prosecution but rather for further investigation. The case was adjourned for hearing to 13^th May 2010.

Following the adjournment, the appellant sought from the respondent disclosure of details regarding Operation Chronicle and details of the stage which the German investigation had reached. The respondent refused to make the enquiries necessary to obtain this information but undertook to review the situation in the light of any evidence served on behalf of the appellant.

On 13^th May 2010 the matter was adjourned for a hearing on 22^nd June and the District Judge did not require the German judicial authority to provide any further information. On 18^th June the appellant made an application to further adjourn the hearing from 22^nd June. By then the appellant was in possession of, and had served on the respondents, a Section 9 statement from Marcus Jung, a German lawyer instructed by the appellant’s English solicitors, to seek information and documents from the Office of the Attorney General in Frankfurt relating to the EAW issued against the appellant. In that statement and in documents exhibited to it Mr Jung gave a summary of German criminal procedure. He stated that under the provisions of the German Code of Criminal Proceedings (GCCP), as soon as the Public Prosecution Office learned of a suspected criminal offence it would investigate the facts to decide whether to charge an individual (Section 160). At that stage, the individual is called “an accused person” (Section 157) and during the investigation stage witnesses may be questioned, objects seized, telecommunications intercepted and property searched (Sections 48 – 111). During that stage also it is possible to arrest the accused and hold him in detention (Sections 112 – 130) and the accused would be questioned prior to the conclusion of the investigations (Section 163). If at the conclusion of the investigation the Public Prosecution Office is considering preferring charges, a note of the conclusion of the investigation is made on the file (Section 169A). The bill of indictment will then be submitted to the relevant court (Section 170) and at that stage the accused is called an “indicted accused person” (Section 157). The court will then make a decision regarding the opening of proceedings on the indictment and once the decision has been made to open proceedings the court will admit the charges for the main hearing and designate the court before which the main hearing is to take place (Section 207). At this stage the accused is called a “defendant”.

He went on to report that he had spoken to Prosecutor Gonder of the Office of the Attorney General who was the prosecutor working on Mr Patel’s file and that Prosecutor Gonder had informed him that Mr Patel’s case is at the investigation stage. He confirmed that he had received a DVD containing part of the file of the case against the appellant but reported that he had been refused permission to inspect part of the file under Section 147(2) of the Code as investigations have not yet been designated as concluded on the file and disclosure might endanger the purpose of the investigation.

The adjournment was sought so that Marcus Jung could collate further documentation. The respondent objected to the application on the basis that there was no legitimate purpose in law to make further enquiries. The District Judge refused the application to adjourn and the matter was listed for hearing on 23^rd June.

On 23^rd June, District Judge Purdy heard argument on behalf of both parties. The appellant relied on the content of the statement of Marcus Jung dated 17^th June 2010 and on a further statement dated 22^nd June 2010 in which Herr Jung confirmed:

“That if the Attorney General’s Office did consider the investigation to be concluded or near conclusion, for me there would be no need to refuse inspection of the files or of individual documents in the files relevant to Mr Patel’s case under Section 147(2) of the German Code of Criminal Procedures as the investigation could not be endangered by disclosure of the dossier or parts thereof. Under this section of the GCCP, inspection of the files or of individual documents in the files may only be refused if investigations have not yet been designated as concluded on the file.”

The respondent’s stance was that the court ought not to consider any extraneous material since the EAW was valid and unambiguous. However, District Judge Purdy asked for enquiries to be made of Prosecutor Gonder regarding the conversation to which Marcus Jung had referred in his statement and the matter was adjourned for a hearing on 21^st July.

The respondent made enquiries of the German Judicial Authority and the response came not from Prosecutor Gonder but from Prosecutor Julia Trinte in a letter dated 14^th July 2010. That letter states:

“First of all, the German proceedings concerning Irfan Musa Patel are not at a mere investigative stage (Vorermittlungen) any more but at the stage of prosecution (Staatsanwaltliches Ermittlungsverfahren). Under German law National Arrest Warrants and, therefore, also European Arrest Warrants (EAW) for the purpose of pre-trial custody can only be issued by a judge or a court:

(a)

after prosecution has been initiated and

(b)

if, after a review of the evidence displayed by the prosecution a judge or a court have confirmed that there is a more than just a probable cause.

In fact, the National Arrest Warrant and the EAW concerning Irfan Musa Patel were issued on 27^th April 2010 and thus several weeks after the prosecution had been initiated by the Office of the General Attorney.

…

Under German law, an arrest warrant against an alleged perpetrator cannot be issued simply to assist with an investigation.

…

On 27^th April 2010, in accordance with the provisions of the German Code of Criminal Procedure, the District Court of Frankfurt am Main did not only order Irfan Musa Patel to be arrested but also to be held in pre-trial custody for the offences which the General Attorney’s Office had charged him when applying for the pre-trial custody order to be issued.

The prosecution’s act of applying for a pre-trial custody order can be compared to a preliminary raising of charges because the prosecution is compelled to provide the judge or court with complete information on the evidence that supports the prosecution’s argument that there is more than a probable cause and that there are sufficient grounds for also holding the accused person in custody …

In our opinion, Mr Patel’s defence attorney has tried to influence the Magistrates’ Courts decision by omitting this particular aspect of the German Criminal Procedure and by using inaccurate translations of legal terms.

…

With a view to the allegations made by Mr Jung, Senior Prosecutor Gonder stated that they did not have lengthy conversations. When asked about Mr Jung’s first telephone call, Senior Prosecutor Gonder stated, that due to a strict data protection policy, he only confirmed that he had already initiated prosecution (Staatsanwaltliches Ermittlungsverfahren) against Mr Patel and that Mr Jung could have access to the files.

The terms used by Mr Jung to describe the stage of the proceedings are inaccurate. According to the standards of legal translation, the term “investigation” is to be considered an equivalent of the German term “Vorermittlungen” or “Polizeiliche Ermittlungsverfahren” when there is only a mere suspicion (Anfangsverdacht) against an alleged perpetrator. Neither the term “Vorermittlungen” nor the term “Polizeiliche Ermittlungsverfahren” were used by Senior Prosecutor Gonder during the telephone conversation. As there was already more than a probable cause against Mr Patel, Senior Prosecutor Gonder explicitly referred to an ongoing prosecution (Staatsanwaltliches Ermittlungsverfahren).”

The letter states that Mr Jung was provided with a DVD containing the electronic files relating to the case and on 15^th June Mr Jung called Prosecutor Gonder because he could not find the National Arrest Warrant within the electronic files which had been sent to him. A copy of that warrant was faxed to Mr Jung on 16^th June 2010. The letter then proceeds:

“This means that 7 days before the last extradition hearing took place in the UK, Mr Patel’s defence attorney had already had full access to the files concerning the criminal charges raised by the General Attorney’s Office against Mr Patel. The DVD with the electronic files as served to Mr Jung and the National Arrest Warrant sent to him via fax on 16^th June 2010 revealed that the proceedings against Mr Patel had reached at the stage of prosecution.

Thus, Mr Jung should have known that the General Attorney’s Office had already charged Mr Patel with more than probable cause when applying for the National Arrest Warrant and that subsequently, the District Court had confirmed that there was more than a probable cause when issuing the National Arrest Warrant as the result of the evidentiary review by the court on 27^th April 2010 and ordering Mr Patel to be held in pre-trial custody (Untersuchungshaft) after pondering the various aspects of the principle of commensurability.

As the files have already been disclosed to Mr Jung, it is not necessary for Mr Patel to be invited to interview. It would be a matter for Mr Jung as Mr Patel’s lawyer to indicate that he wishes to provide an explanation, but, if there is no explanation then he will be assumed to have exercised his right to silence.”

The letter goes on to state that once the appellant is surrendered to the German Authorities he can be formally indicted before the court in Frankfurt and that German law requires “the act of indictment be served upon the defendant. Furthermore, a trial can only take place in the defendant’s presence”.

As to the date of the indictment, the letter adds:

“It is not possible to predict the date of the indictment because the evidence found on the premises that were searched in the UK on 28^th April 2010 needs to be transmitted to the General Attorney’s Office too.

Mr Patel’s co-accused have not been indicted yet. Yet, it is hoped that Mr Patel can be indicted with them.”

Marcus Jung was asked on behalf of the appellant to comment on Prosecutor Trinte’s letter. He did so in a statement dated 21^st July 2010 in which he took issue with Prosecutor Trinte’s assertion that he had tried to influence the court by using inaccurate translation of legal terms. In particular, he disputed the use, by Prosecutor Trinte, of the term “Staatsanwaltliches Ermittlungsverfahren” as meaning “prosecution” and pointed out that in the German version of the EAW the word “Strafverfolgung” is used to mean “prosecution”. By reference to the translation of the German Code for Criminal Procedures, displayed on the website of the German Ministry of Justice, he takes issue with the use of the term “more than probable cause” which he said is a mistranslation of the term “Dringender Tatverdacht” which means “strongly suspected”. He also took issue with the use, by Prosecutor Trinte, of the term “pre-trial custody orders” in the context of German National Arrest Warrants. The translation used by the German Ministry of Justice of the relevant term is “remand detention”; furthermore, he challenged the assertion that a warrant for arrest for remand detention can be seen as a preliminary raising of charges.

Marcus Jung states that when he spoke to Prosecutor Gonder, the prosecutor said that the case was at the stage of “Ermittlungsverfahren” and points out that on the web page of the German Ministry of Justice the word “Ermittlungen” is translated as “investigations” and not “prosecution”. However he goes on to say that Prosecutor Gonder told him that he would not be granted full access to the files and that the information withheld concerned mainly other accused persons. Marcus Jung concludes by repeating that the appellant, at the date of the issuing of the EAW, “was and still is an accused person and neither an indicted accused person or a defendant”.

On 21^st July the case came back before District Judge Purdy. Again an application was made on behalf of the appellant to adjourn the case so that oral evidence could be given by Julia Trinte and Marcus Jung. The respondent opposed the application on the basis that the court ought not to go behind what was stated on the face of the EAW. The District Judge refused to adjourn the case for the calling of live evidence and the matter was adjourned until 2^nd September for judgment.

On 27^th August 2010 the appellant’s solicitors wrote to the court to indicate that they would be seeking to place further evidence before the District Judge on the day that judgment was to be delivered. By that date there were two further statements relied upon by the appellant. The first was from Dr Kai Hart-Hoenig, a German lawyer who acts as an expert witness on German law. His statement was dated 26^th August 2010 and there was also a further statement from Marcus Jung dated 31^st August 2010.

Dr Hart-Hoenig, having examined the various letters and statements to which I have referred, concludes “from the absence of a bill of indictment that the German proceedings are at the stage of investigation”. He goes on to say that the statements in Miss Trinte’s letters “are to a large extent clearly incorrect. Some statements are, at least, suited to give a misleading impression of both the German criminal procedure in its entire concept and the state of the proceedings as to Mr Irfan Patel”. When dealing with that passage in Prosecutor Trinte’s letter, referred to at paragraphs 18 and19 above, Dr Hart-Heonig states “this must be seen to be a mixed bag, suited to wreak some misinformation”.

In the remainder of his 10 page statement Dr Hart-Heonig analyses Prosecutor Trinte’s letter of 14^th July and criticises her use of terms and description of German criminal procedure as “incorrect”, “grossly misleading” and “very much misleading”. The refusal of Prosecutor Gonder to allow full inspection of the files under Section 147(2) of the German Code on the basis that disclosure may imperil the purpose of the investigation is confirmation, in Dr Hart-Heonig’s view, that the proceedings are still at the investigation stage and not at the stage of preferring public charges.

The statement of Marcus Jung gives further information about the case against the appellant. He states that having considered the evidence so far served, there is “no clear evidence linking Mr Irfan Patel to a common plan to file false VAT returns as detailed in the EAW”. He reports that there are three co-accused on remand detention in Germany, all three of whom challenge the validity of the National Arrest Warrant upon which their remand detention is based and that none of the co-accused had, at that stage, been indicted. He points out that he is unable to assess whether the withheld parts of the file do, indeed, mainly concern other co-accused and repeats that withholding of the file, under Section 147(2) of the German Code, could only mean that the investigation on the file has not been concluded and that no indictment has been issued.

At the 2^nd September hearing, the District Judge considered the evidence of Dr Kai Hart-Heonig and stated that it did not affect the decision that he had made in relation to the requirements of Section 2 of the Act. When giving judgment he stated:

“To my mind the often repeated mutual trust and confidence principle applicable to all extradition requests, not just those in part 1 EAW matters, cannot be understated. My reasoning for refusing an adjournment to hear Herr Jung is simple. The EAW in my judgment is open to little if any confusion as to its purpose i.e. accusation for the purposes of actual prosecution. The ambiguity, if it exists, arises from extrinsic material namely Herr Jung’s evidence. On one view that should not have been considered. It was and has been. However, having had the Judicial Authority’s full and clear response of 14^th July 2010 to my mind one is back to an unambiguous position. To hear evidence, never mind, as Mr Fitzgerald invited, to expect a further live response from the Judicial Authority in the witness box under cross examination, flies in the face of the clear and substantial body of case law. Accordingly, I find this EAW complies with s. 2 Ex Act 2003 being a EAW issued for the purpose of prosecution not mere investigation.”

The appellant seeks to challenge the order of the District Judge on two closely related bases. Firstly, it is argued that the allegations of misrepresentation against the judicial authority and the misleading impression created were so stark and so severe that the only appropriate way for the District Judge to have proceeded was by way of evidential inquiry. Alternatively, it is submitted that, on the basis of the evidence then before the District Judge, the only proper conclusion which he could have reached was that the requirements of Section 2 of the Extradition Act 2003 were not satisfied.

Article 1 of the Council Framework Decision provides:

“1.

The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”

The Article goes on to direct that Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and Recital 10 to the Framework Decision states that the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States.

Section 2 of the Extradition Act 2003 provides so far as is relevant:

“(1)

…

(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 …

(3)

The statement is one that:

(a)

the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and

(b)

the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.

(4)

…”

The word “accused” does not appear in this context in the Framework Decision and the statute does not offer a definition of it. However, the House of Lords gave guidance on the interpretation of the word in the context of the predecessor of the 2003 Act in the case of Re Ismail [1999] 1AC 320. At page 326 Lord Steyn, with whose speech the other members of the House agreed, said:

“It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of ‘accused’ persons. It is also common ground that it is not enough that he is in the traditional phrase ‘wanted by the police to help them with their enquiries’. Something more is required. What more is needed to make a suspect an ‘accused’ person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdiction, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word ‘accused’ within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that the ‘accused’ in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an ‘accused’ person. Next there is the reality that one is concerned with the contextual meaning of ‘accused’ in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition: R v Governor of Ashford Remand Centre, ex part Postlethwaite [1988] AC 924 … It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure and in particular from the point of view of formal acts of the laying of an information or the preferring of an indictment. Moreover, it is important to note that in England the prosecution may also be commenced if a Custody Officer decides that there is sufficient evidence to charge and arrest a person and then proceeds to charge him: section 37(7) of the Police and Criminal Evidence 1984 … Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an ‘accused’ person. And that is so even if the police continue to investigate afterwards.

Is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an ‘accused’ person. All one can say with confidence is that a purposive interpretation of an ‘accused’ ought to be adopted in order to accommodate the difference between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an ‘accused’ person is satisfied. … For my part I am satisfied that the divisional court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in light of the diversity of cases which may come before the courts it is right to emphasis that ultimately the question is whether a person is ‘accused’ within the meaning of section 1of the Act of 1989 will require an intense focus on the particular facts of each case.”

Recent cases in which a EAW had been challenged on the ground that the purpose of the requested surrender was not for the prosecution of the requested person as an accused person but for the conduct of investigation were reviewed by this court (Aikens LJ and Oppenshaw J) in Astlaslos v The Szekszard City Court, Hungary[2010] EWHC 237 (Admin). Aikens LJ giving the judgment of the court said at paragraph 20:

“Sometimes evidence, both factual and expert, is sought to be adduced to demonstrate that the criminal proceedings in the requested state have not got to the stage of a prosecution. The question that arises is: in what circumstances (if any) should the court consider extrinsic evidence when it appears to the court that it is an “accusation case” (as opposed to a “conviction case”), but there is an issue between the parties on whether the purpose of the surrender sought by the EAW is, in fact, for the purpose of the requested person being prosecuted as an accused person, as opposed to being for the purpose of that person being questioned with a view to possible prosecution thereafter.”

The court reviewed the cases and at paragraph 38 of the judgment summarised the effect of the authorities as follows:

“(1)

The court will look at the warrant as a whole to see whether it is an ‘accusation case’ warrant or a ‘conviction case’ warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal.

(2)

In the case of an ‘accusation case’ warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an ‘accused’ within the meaning of section 2(3)(a) of the Act.

(3)

Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.

(4)

The court must construe the words in section 2(3)(a) and (b) in a ‘cosmopolitan’ sense and not just in terms of the stages of English criminal procedure.

(5)

If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.

(6)

Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself.

(7)

Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases.”

Mr Fitzgerald QC, on behalf of the appellant, accepts that the fact that one of the alternative purposes of the EAW set out on the pro forma frontispiece of the EAW has not been struck through does not introduce any ambiguity into the EAW and he also accepts that there is no ambiguity on the face of the rest of the EAW. Nevertheless, he submits that there are circumstances in which the court should go behind the face of the EAW and consider extrinsic material. He bases this submission on the words of Lord Bingham at paragraph 24 of his speech in the case of Calderelli v Court of Naples, Italy[2008] UKHL 51:

“Under article 1 of the Framework Decision the EAW is a judicial decision issued by the requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorized to issue such warrants in his category 1 territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer.”

In support of his submission that the court in the circumstances of this case should look at extrinsic evidence, Mr Fitzgerald QC relies on the case of Criminal Court at the National High Court, First Division (a Spanish Judicial Authority) v Murua[2010] EWHC 2609 (Admin). This was not a case, however, in which the issue of investigation/prosecution arose or in which it was sought to adduce expert evidence on foreign law. Murua was one of eight defendants who had been originally charged with committing terrorist offences which had endangered lives and it had been alleged that when committing those offences their identities had been hidden by the wearing of balaclavas. The maximum sentence for those offences was 48 years. However, documents from the Spanish court which Murua had obtained and which were before the court in this jurisdiction showed that when the case came before the court in Spain, seven defendants attended; Murua did not. At court the charges were reduced from “Estragos” (more serious offences were there is a risk to life) to “Danos” (offences where there is no risk to life). The prosecution accepted and the court found that lives had not been endangered by the offences and that it was not proven that the defendants had hidden their faces as originally alleged. These new charges carried a maximum of 3 years in prison. Section 2(4) of the 2003 Act requires an EAW to contain particulars of the circumstances in which the person whose surrender is sought is alleged to have committed the offences upon which he faces prosecution and the EAW requesting Murua’s surrender set out details of the conduct as had been originally alleged against him and made no reference to the revised basis upon which the prosecution and court had proceeded. Indeed, it was the case advanced on behalf of Murua that the reduced charges upon which the other defendants had been proceeded against would, at the time of the EAW, have been time barred in the case of Murua. The District Judge found that the EAW misstated the true factual and legal position and discharged the Warrant. On appeal to the Administrative Court, Sir Anthony May (P) accepting the submissions of the respondent and confirming the order of the District Judge, said at paragraph 63:

“The respondent’s case is simple. The Spanish prosecutor has asserted in terms and without qualification in a formal court document that “there is no risk to life proven by any of the facts” and “it is not proven that the defendants hid their faces with balaclavas or similar items”. That constrained a reduction of the charges from “Estragos” to “Danos”. The judge gave judgment on this factual basis, not only with reference to the defendant’s pleas, but also to documentary evidence. The Respondent was charged jointly with other Defendants … There is no evidence or other basis before this court for distinguishing between him and his relevant co-defendants. The Spanish prosecutor, therefore, by his own positive statement has no evidential basis for reverting to “Estragos” charges and the Spanish judge has positively endorsed this by his judgment.

64.

The 2010 Warrant does not, therefore, give particulars of conduct capable of constituting a viable extradition offence so that it does not contain a description of the conduct alleged which is proper, fair and accurate. It is not proper or fair because it is improper and unfair to seek the extradition of a person upon charges which the courts own document show cannot be proved in their most material particular; that is to say, risk to life. It is not accurate because the lesser charges which could properly be alleged are not those alleged in the warrant.”

Another case upon which the appellant relies is The Queen on the application of Trenk and District Court in Plzen-mesto, Czech Republic[2009] EWHC 1132 (Admin). In that case, Davis J allowed an appeal against the decision of a District Judge which ordered the appellant’s extradition to the Czech Republic. He did so on the ground that he was not satisfied that the case against the appellant in the Czech Republic had crossed the boundary from investigation into prosecution. However, the circumstances of that case are very different from the present and the nature of the material extraneous to the EAW, which the court considered, is different in nature from the material which Mr Fitzgerald QC asks this court to consider.

Firstly, it appears that there was some ambiguity on the face of the EAW itself. At paragraph 7 of his judgment, Davis J said:

“Perhaps appreciating that the matter, on the face of the arrest warrant, was not altogether clear, a number of requests have been directed to the Czech authorities seeking further information.”

Secondly, the information considered came from the Czech Judicial Authorities in answer to requests from those representing the judicial authority in this country. There were four requests in total, each one seeking further information as to the state of the case against Trenk in an effort to clarify the original ambiguity in the EAW and the ambiguities remaining after each successive response.

In my judgment, reliance on these two cases takes the appellant’s case no further.

Mr Fitzgerald QC’s submission continues that the German Judicial Authority’s statement in the EAW that the appellant is wanted for prosecution while, in truth, he is wanted for the purposes of investigation, is an abuse of the process of the court in this jurisdiction and that Prosecutor Trinte’s continuing to state in the letter of 14^th July that the appellant is wanted for prosecution, is indicative of bad faith. The letter of 14^th July is, he says, misleading and misled the court below with the result that the appellant was deprived of a protection to which he was entitled. Where, as here, the court is alerted on credible evidence to the possibility of an abuse of process the court should investigate the matter and receive evidence which allows the court to look behind the EAW and examine the state of the case in the requesting jurisdiction.

That a court, conducting extradition proceedings, has jurisdiction to consider an allegation of abuse of process, is beyond doubt. In R (Government of the United States of America) and Bow Street Magistrates’ Court ex-parte Tollman[2006] EWHC 2256 (Admin), the court applied to extradition proceedings the statement made by Bingham LJ in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate ex-parte Ellison [1990] RTR 220, at 227:

“If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to enquire into the situation and ensure that its procedure is not being so abused. Usually, no doubt, such enquiry would be prompted by a complaint on the part of the defendant. But the duty of court in my view exists even in the absence of a complaint.”

Giving the judgment of the court in Tollman, Lord Phillips CJ said:

“83.

The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused if put on inquiry as to the possibility of this. The judge will usually, though not inevitably, be put on inquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought.

84.

The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred.”

Mr Fitzgerald QC’s submission continues that had the District Judge considered the statements of Dr Hart-Heonig and Marcus Jung, the concerns of whom were not addressed by the District Judge in his judgment, he would have been driven to hold an inquiry into the allegation of abuse of process which would have required him to hear oral evidence not only from Prosecutor Trinte but also the two German lawyers upon whom the appellant relies.

The alternative submission, made on behalf of the appellant, is that in the light of the content of the statements of Dr Hart-Heonig and Marcus Jung and in view of the fact that no indictment had yet been preferred in Germany, the District Judge should have come to the conclusion that the case against the appellant was clearly still in the investigative stage. That this was the case, it is suggested, is shown by the fact that Prosecutor Trinte was unable, on 14^th July, to predict the date of the indictment because the evidence found during the search of the appellant’s premises needed to be transmitted to the German authorities.

Miss Lindfield submits before this court, as she did before the District Judge, that in the absence of any equivocation or ambiguity in the EAW, the court ought not to have regard to the content of the statements of the defence witnesses and should find the warrant to be valid. She goes on to dispute the allegation of abuse of process and bad faith on the part of the German judicial authority and argues that the technical arguments advanced by the appellant’s German witnesses rely on semantics and differences in translation. Finally, she submits that if the court feels it necessary to look at the extrinsic evidence submitted on behalf of the appellant, the court should prefer the evidence of Prosecutor Trinte as coming from a judicial authority whose good faith must be assumed.

I reject the submission that there is evidence in this case that should satisfy the court that there is reason to believe that an abuse of process may have taken place. In my judgment the evidence upon which the appellant relies falls a long way short of the threshold which must be passed in order to satisfy the court that an abuse of process may have taken place such as would require the court to investigate the issue. Furthermore, as there is no equivocation or ambiguity on the face of the EAW as to its purpose – namely the prosecution of the appellant – there is no justification for the court to receive extrinsic evidence and the District Judge was correct in his decision not to do so. As to the further information provided by the judicial authority insofar as it falls to be considered, it is wholly consistent with the expressed purpose of the EAW and the fact that the final charges upon which the appellant will be indicted, will not be drafted until the evidence recovered in the search of the appellant’s house has been considered is not inconsistent with that purpose.

I would dismiss this appeal and confirm the order of the District Judge.

I agree.