The Administrative Court has recently considered the operation of the relatively new bar to extradition contained in s.12A of the Extradition Act 2003. The bar, which came into force in July 2014, prevents extradition in the absence of a decision to charge or try the requested person where the lack of such a decision is not solely due to their absence from the requesting territory. It is designed to ensure that those extradited under 'accusation' European Arrest Warrants should not be subject thereafter to lengthy periods in detention whilst investigations are carried out in the issuing state.
The Administrative Court in Kandola & Others vs Generalstaatwaltschaft Frankfurt, Germany and Others  EWHC 619 considered the operation of the bar for the first time in three linked appeals involving two requests from Germany and one request from Italy. The judgment was published on 13 March 2015. The judgment emphasises the difficulties requested persons will face in raising the bar under s.12A and stresses that the calling of 'elaborate evidence' by the defence in support of such arguments is to be discouraged. Nevertheless this case does provide some useful guidance as to the High Court's interpretation of s.12A.
However, perhaps of most interest is the extraordinary concession that was made in the case by John Hardy QC who was acting on behalf of the Italian authorities. As noted above, the lack of a decision to charge or try an individual is not a bar to extradition if it can be demonstrated by the requesting state that the sole reason for the lack of a decision is the requested person's absence from the country. However, in considering the case of one of the appellants, Mr Ijaz, Mr Hardy informed the court that, as a matter of Italian law, it was not necessary for a person to be present with in the jurisdiction to enable the preliminary investigation to be concluded and for a decision to charge and try to be made by the competent authorities.
The significance of this was underlined by Mr Hardy who went on to state that the introduction of the bar under s.12A will "torpedo" 80 to 85% of all Italian requests for extradition from the UK through European Arrest Warrants. He said that the reason for this is simply the way that Italian criminal procedure operates. The remaining 15 to 20% of requests concern 'conviction' European Arrest Warrants that are not affected by s.12A. The Administrative Court held that Mr Ijaz's extradition was barred under s.12A.
Whilst it is difficult to assess the figures quoted by Mr Hardy, it certainly appears that s.12A is likely to cause insurmountable difficulties for the Italian authorities in a large number of European Arrest Warrant cases in the UK. It remains to be seen how the Italian authorities will react.
23 March 2015