QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
MR JUSTICE TOULSON
|THE QUEEN ON THE APPLICATION OF|
|VICE MINISTER OF JUSTICE MINISTRY OF JUSTICE LITHUANIA||(RESPONDENT)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR GARETH PATTERSON appeared on behalf of the RESPONDENT
Crown Copyright ©
Thursday, 18th May 2006
"(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 ..."
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."
"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."
"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'."
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  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.
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.
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.
"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."
"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."
"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."
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.
"... 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."