Fox v Public Prosecutor's Office of Frankfurt am Main Germany, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3396 (Admin)

Resolution Date:December 21, 2017
Issuing Organization:Administrative Court
Actores:Fox v Public Prosecutor's Office of Frankfurt am Main Germany

Case No: CO/1749/2017 & CO/4067/2017

Neutral Citation Number: [2017] EWHC 3396 (Admin)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :




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Between :

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Helen Malcolm QC and Hannah Hinton (instructed by Quinn Melville, Solicitors) for the Appellant

James Hines QC and Amanda Bostock (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent

Hearing dates: 14 December 2017

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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 30th 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 24th 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...

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