Case No. UKUT-00294-(IAC)

“ Nonetheless, despite the careful and meticulous argument of Mr Summers QC, we cannot conclude that the Senior District Judge was wrong in the conclusion he reached on the evidence. He had the benefit of hearing the witnesses and of carefully weighing that testimony. We cannot in those circumstances see, on well established principles, that he came to a decision that was not open to him on the evidence. It would not therefore be the proper function of an appellate court to set his findings aside. In the result therefore this particular submission fails …”. We interpose here paragraph 39 of the judgment: “Our view was communicated to the Spanish Judicial Authority who immediately took action to bring the proceedings in Spain in respect of the original sentence to an end. The documentation has been provided to the court and to the appellant. It is accepted that the proceedings in respect of the conviction are at an end. The issue on specialty therefore no longer forms a bar to extradition. ” 61. The final passage invoked by the Appellant in support of this ground relates to the issue of whether there was a bar to extradition under section 12A of the 2003 Act on the basis that a decision to prosecute the Appellant had not been made in Spain. The Spanish Judicial Authority had formally certified that no prosecution decision had been possible on the ground that by reason of the Appellant’s absence from Spain, the preliminary investigation (“ Instruccion ”) phase could not be concluded. The Divisional Court stated, at [56]: “ It is clear in our view that, where evidence is adduced which shows that a means of examination of a defendant is possible either through the use of the Mutual Legal Assistance Convention or otherwise before the decision to prosecute is made, then it is for the requesting European judicial authority to prove by adducing evidence to the requisite standard of proof that the test in s.12A(1)(b)(ii) has been met. In the present case the Spanish Judicial Authority has given no reasons. On the face of it, on the evidence before the court, it therefore has not shown that the sole reason for the decision to prosecute not having been made is the appellant's absence from Spain.” This was a prelude to the particular passage on which the Appellant places much reliance.