In 2015 the Government responded to criticism over a number of controversial cases where UK subjects extradited under the EAW faced lengthy pre-trial detention by amending the Extradition Act 2003 (see BSQ blog). An amended s12A was inserted into the Act creating a new bar to extradition where there was likely to be a long delay before trial in the requesting state.
In Puceviciene v Lithuanian Judicial Authority  EWHC 1862 (Admin) (“VP v Lithuania’) the Divisional Court has now provided guidance on the operation of s12A. With the Lord Chief Justice presiding, the new guidance will be disappointing to many practitioners – all three cases under appeal failed and it is expected that s12A will be more narrowly applied in future as a result. In short the decision rendered means that the questions to be considered when applying s12A include;
1. Whether a decision had been made in the requesting state by a continental prosecutor to put the requested person (RP) on trial as opposed to charging him (the position under the previous authority Kandola v Germany  EWHC 619 Admin 1 WLR 5097 (DC);
2. The focus should be on whether decision had been made – not if formal legal steps had been taken leading to a trial;
3. The s12A bar cannot be relied on where the sole reason for the failure to reach a decision is the wanted persons absence – in many EAW countries the prosecutor is required to question a suspect before proceeding with a case – the court should not enquire if the Requesting State could use mutual assistance provisions to interview the RP in the UK;
4. Timing – the question is whether a decision to try the RP has been made at the time the request is before the UK courts – not the time the request was made.