England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		18th May 2006

Thursday, 18th May 2006

1. LORD JUSTICE RICHARDS: This is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Evans at Bow Street Magistrates' Court on 30th April 2006, ordering the extradition of the appellant. The extradition was requested by the Ministry of Justice of the Republic of Lithuania. The case falls under Part 1 of the 2003 Act.
2. The warrant alleges that in June 2000 the appellant committed a serious offence of assault, falling within the framework list classification of grievous bodily injury. He was initially acquitted in the County Court but was found guilty by the judgment of the Court of Appeal on 17th March 2005. He was sentenced to two years, six months' imprisonment, of which the period actually required to be served was just under two years. He was present at the hearing before the County Court and the Appeal Court, but did not appear to serve his sentence. The warrant was issued and he was arrested pursuant to it in London on 15th January 2006.
3. The issue is whether the warrant complies with the requirements of section 2 of the 2003 Act. Those requirements depend upon whether a person's extradition is sought for the purpose of his being prosecuted or for the purpose of his being sentenced or serving a sentence after conviction. The present case falls into the latter, post- conviction category. In that event, the warrant must contain the statement referred to in section 2(5) and the information referred to in section 2(6). The statement referred to in section 2(5) is one that:

"(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory ..."

4. The basis of the appeal is that the warrant does not contain an allegation that the appellant is unlawfully at large and therefore does not comply with section 2(5)(a). No complaint is made about the warrant's compliance with sections 2(5)(b) or 2(6).

The terms of the warrant:

In part (b) of the warrant, under the heading "Decision on which the warrant is based", appear the words:

"Arrest warrant or judicial decision having the same effect: the judgment of the Court of Appeal of Lithuania of 17 March 2005."

5. That is described as a judgment of conviction. The reference is then made to the judgment of the County Court as amended by the judgment of the Court of Appeal. There follows a note in these terms:

"The convicted person was present in person while hearing his case at the courts of first and appeal instances. By the judgment of the Panevezys court on 12 August 2004, he was acquitted and the remand measure, ie, written pledge not to leave, was cancelled. The Court of Appeal of Lithuania held D Kuprevicius guilty by the judgment of 17 March 2005 and sentenced him to imprisonment. In accordance with Article 342 of the Code of Criminal Procedure of the Republic of Lithuania, an enforceable judgment shall be forwarded for execution not later than within 3 days after the day of referring the case back from the court of appeal instance. The execution of the custodial sentence imposed upon D Kuprevicius was to commence and he was to be detained upon submission of the judgment for enforcement by the Panevezys County Court, which heard the case as the court of first instance, however, D Kuprevicius had absconded from serving the sentence."

6. Later, in part (f), the warrant refers to a five year statute of limitations with regard to the execution of a judgment of conviction, which is calculated from the day the judgment becomes effective to the day the execution of the judgment commences. It goes on:

"If, after the judgment has become effective, the convicted person attempts to avoid serving the sentence, the calculation of the statutory time shall cease (D Kuprevicius has absconded from serving the sentence.) It shall resume from the day the person arrives of his own free will to serve the sentence or is arrested."

The District Judge's decision:

In rejecting the submission that the warrant did not make clear that the appellant was unlawfully at large, the District Judge stated:

"It is clear from Part (b) of the Warrant that the Defendant has been convicted. The judgment of the Court of Appeal of 17th March 2005 is described as the 'arrest warrant or judicial decision having the same effect'. It is also described as the 'enforceable judgement'. It goes on to describe that he was to be detained but had absconded. He was a free man after his acquittal, but this was overridden by the imposition of the sentence of imprisonment.

I am satisfied to the appropriate standard of proof that a period of imprisonment was imposed. It is the case under the Lithuanian law that the enforcement of the sentence is not carried out by the Court of Appeal, but that the Warrant, as it would be called under English law, is sent to the local court for enforcement. No other process or judicial order intervenes. All that remains is the physical act of arrest. In Lithuania, there is clearly a gap in these circumstances between the pronouncement of the sentence and its enforcement. In English law, if a Defendant were to abscond between the judge passing sentence and his being taken to the cells, the Defendant would be at large. Here the time interval is greater, but the same effect must follow. Further, Mr Kuprevicius was aware of the sentence. I am satisfied that Mr Kuprevicius can be described as 'unlawfully at large'."

7. The Judge went on to consider whether the exact words must appear in the warrant and, having referred to the Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL67 [2005] 3 WLR 1079, he said that although the words "unlawfully at large" did not appear on the face of the warrant, he was satisfied so as to be sure that the appellant did abscond and could be described as being unlawfully at large.

The appellant's submissions:

In a series of attractively presented submissions, both in his written skeleton argument and orally, Mr Smith, on behalf of the appellant, takes issue with the District Judge's reasoning. He submits that a person is unlawfully at large if he is liable to arrest without further order or judicial process. He derives support for that from Ginova v The Government of the Czech Republic [2003] EWHC 2187 (Admin) at paragraph 7. He submits that that test is not met in the present case. It is clear from the warrant that the remand measure referred to was cancelled after the decision of the County Court and there is nothing to say that it was reinstated. There is nothing to show clearly that the case actually went back from the Court of Appeal to the County Court for enforcement, or that there was any obligation arising simply from the Appeal Court judgment itself. Article 342 is referred to but its provisions are not set out. In short, it is said that there is nothing to show clearly that the appellant would be remanded without further order of the court or judicial process if returned to Lithuania. It is submitted that the reasoning process of the District Judge amounted to illegitimate guesswork to fill a gap in the warrant itself.

8. Mr Smith accepts that it is not necessary for the warrant slavishly to follow the language of the statute, but submits that it must in some way make it clear that the person concerned is unlawfully at large. He refers in that respect to Pinto v Governor of HM Prison Brixton [2004] EWHC 2986 (Admin) at paragraph 11. He submits that the warrant here fails to make the matter clear. It leaves doubt as to whether the appellant is unlawfully at large. He seeks to draw a factual parallel with the circumstances in Urru v Governor of HM Prison Brixton, a decision of the Divisional Court on 22nd May 2000, where there was held to be doubt as to whether a person convicted but not previously in custody could be said to be unlawfully at large. For all those reasons, he submits that the warrant is not a warrant complying with section 2 and that Part 1 of the Act therefore does not apply to it.

The respondent's submissions:

We did not think it necessary to call on Mr Patterson, for the requesting authority, to make oral submissions, but in the written submissions clearly set out in his skeleton argument he submits, by reference to Cando Armas, to which I will come further in a moment, that a court is entitled to infer from the information contained in the warrant that a person is unlawfully at large and should be slow to find that a warrant is bad for failing to state that the person is unlawfully at large. He seeks to attach significance to the fact that the judgment of the Court of Appeal is described in the warrant as the enforceable judgment. The inclusion of "enforceable" indicates, he says, that this is a judgment which can be enforced in Lithuania. It is also a judgment which is said to have the effect of an arrest warrant. In addition, the warrant indicates that the appellant was to be detained but has absconded. The word "absconded" connotes a failure to comply with a judicial order. This is reinforced by the reference in part (f) to his having absconded from serving his sentence and the indication that this has caused the statutory time limit to be suspended after the judgment has become effective. The District Judge's conclusion that it can be inferred from the warrant that the claimant was unlawfully at large after conviction is therefore unimpeachable, submits Mr Patterson.

Cando Armas:

The judgment of Lord Hope in Cando Armas contains important guidance on the issue that arises in this case. Whether the requirement of section 2(5) was met did not arise for decision by the House of Lords in Cando Armas, but counsel had drawn attention in the course of argument to matters that would be canvassed if the case went back to the Magistrates' Court. This led Lord Hope to indicate how in his view the requirement should be applied in practice. In paragraph 42 he stated that the requirement in the Act was unequivocal, but in paragraph 43 he pointed out that there is no corresponding requirement in Article 8 of the Council Framework Decision which sets out the content and form of the European Arrest Warrant. The Belgian prosecutor in that case had used the form described in the annexe to the Framework Decision so that the warrant he prepared did not state in terms that the appellant was unlawfully at large.

9. Lord Hope continued in paragraph 44:

"It would be unduly strict in these circumstances to insist that a statement must appear in the actual words used in section 2(5) if a European arrest warrant is to qualify as a Part 1 warrant. The purpose of the requirement is to provide protection against an unlawful infringement of the right to liberty, so it is an important part of the procedure provided for by Parliament. But the court should be slow to construe those words in a way that would make it impossible to give effect to a warrant which is in the terms which the Framework Decision has laid down. The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities."

10. He next referred to a decision of Crane J in R(Bleta) v Secretary of State for the Home Department [2005] 1 WLR 3194 where it was held that in a Part 2 case, in the absence of a statement that the defendant was unlawfully at large, the Secretary of State was entitled in a clear case to conclude from a request itself and the supporting documents that a defendant was unlawfully at large.
11. Lord Hope said in paragraph 48 that he wished to hear further argument on that issue before concluding that Crane J's approach was the correct one. He went on:

"It is sufficient for present purposes to say that it is open to the court to draw inferences from the material available to it to determine whether the requirements of the statute have been satisfied. But those against whom the system for extradition is invoked are entitled to protection against its use in circumstances which have not been provided for by Parliament. So I think that Crane J was right to indicate that, if there is a gap in the information, it ought not to be filled by mere guesswork."

12. Lord Bingham at paragraph 18 reserved his opinion on these matters, save to say that he shared Lord Hope's doubts and would, for his part, be slow to read into Part 1 a condition not found in the Framework Decision.
13. Lord Scott at paragraph 58 expressed the provisional view that if the "unlawfully at large" statement is not included in a warrant, the Judge cannot go behind it, but that if it is not included and cannot be unequivocally implied from what is included the warrant is bad.
14. Baroness Hale at paragraph 60 said that she shared the concerns of Lord Bingham and Lord Hope about the problem posed by section 2(5), and went on:

"It would be most unfortunate if the judicial authorities in our European partner states, using the form of warrant prescribed by the Framework Decision, were to find that the English judicial authorities were unable to implement it. Whether the solution should be legislative, or administrative, for example by way of routine requests to include such a statement where none appears on the face of the warrant initially presented, or whether it is possible for the judiciary to find a practical solution which is true to the spirit and the requirements of the Framework Decision, while properly safeguarding the liberty of the individual, it is not at present possible to say."

15. Lord Carswell agreed generally with Lords Bingham and Hope.

Discussion and conclusion:

Consideration of this case should plainly be conditioned by the observations of their Lordships in Cando Armas, even though they were strictly obiter and to some extent provisional. Although the requirement in section 2(5) is not contained in the Framework Decision, I proceed on the basis that it must nevertheless be met. The warrant does not need to state in terms, however, that the person whose extradition is requested post-conviction is unlawfully at large. The requirement will be met if it can be inferred from the contents of the warrant as a whole that the person is alleged to be unlawfully at large.

16. In my judgment, the District Judge directed himself correctly by reference to Cando Armas in asking himself whether he could conclude as a matter of inference that the appellant was unlawfully at large, even though those words did not appear on the face of the warrant. The only real question is whether he reached a conclusion properly open to him as a matter of inference, or whether he engaged, as Mr Smith contends, in impermissible guesswork so as to plug a gap in the warrant.
17. For my part, I am satisfied that the District Judge's conclusion was properly open to him. In my judgment, there is sufficient material in the warrant to show that no further process or order would be required upon the appellant's arrest on return to Lithuania. The judgment of the Court of Appeal was an effective judgment, enforceable against him and having the same effect as an arrest warrant. It is plain that the situation is very different from that which existed when his bail had been cancelled following the original acquittal in the County Court. It seems to me clear from the warrant, taken as a whole, that the appellant is now liable to serve his sentence, which means that the judgment of the Court of Appeal has been returned in the manner indicated to the County Court for the purposes of enforcement, but that he has absconded. This is language that readily supports the inference made by the District Judge. I take the view that the contents of the warrant, taken as a whole, show clearly that the appellant is unlawfully at large.
18. A letter dated 4th May 2006 from the Vice Minister of Justice of the Republic of Lithuania provides further information on the case and states in terms:

"... in case D Kuprevicius is surrendered to the Republic of Lithuania, execution of the imprisonment sentence imposed on him by the effective court order will be started immediately and the question of his arrest will not be dealt anew."

19. There is an issue before us as to whether that letter is admissible for the purposes of determining whether the requirement in section 2(5) is satisfied. It is not necessary to resolve that issue in this case because, for the reasons I have already given, I take the view that the warrant itself contains enough to satisfy the requirement of the relevant subsection. It is, however, reassuring to note that the conclusion that I have reached by reference to the warrant accords with the justice of the case, as revealed by this additional evidence. The position, however, is that, for the reasons I have given, the section 2(5) requirement was met. I would therefore dismiss this appeal.
20. MR JUSTICE TOULSON: I agree. I would only add that if it were the case that the warrant contained a possible ambiguity, it would seem strange if the court could not look at other material which resolved the ambiguity, but that situation does not arise here for the reasons given by my Lord. It is therefore not necessary to give a decision on it.
21. MR SMITH: My Lord, I do not know if it is necessary, but if it is, may I apply for Legal Aid assessment.
22. LORD JUSTICE RICHARDS: Yes, whatever the requirement is, detailed assessment for public funding purposes, certainly you may have that. No other order required? Thank you both very much indeed.