England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		20 November 2006

1. LORD JUSTICE KEENE: This is an appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against an order for the appellant's extradition to Lithuania, the order having been made on 28th September 2006 by District Judge Evans at the City of Westminster Magistrates' Court. Lithuania is a category 1 country within the meaning of section 1 of the 2003 Act, the requisite order to that effect being Statutory Instrument 2004 1898 which came into force on 27th July 2004. Consequently the provisions of Part 1 of the 2003 Act apply. Those provisions seek to implement in domestic law the European Council Framework Decision on a European Arrest Warrant, the purpose of which is, as Lord Bingham of Cornhill put it in Office of the King's Prosecutor, Brussels v Armas [2005] UKHL 67 at paragraph 2:

"... to establish, as between themselves, a simpler, quicker, more effective procedure, founded on Member States' confidence in the integrity of each other's legal and judicial systems."

2. In the present case, the Prosecutor General's Office of the Republic of Lithuania issued a European Arrest Warrant in respect of the appellant in February 2006, stating that he was accused of four offences, namely, murder; organised or armed robbery; assuming the name of a civil servant or a person discharging public administration functions and stealing a stamp, a seal, or a document or use thereof. This is therefore a case where the warrant relates to a person who is accused of an offence rather than one where he is alleged to be unlawfully at large following conviction. That means that the warrant has to contain the statement referred to in subsection (3) and the information referred to in subsection (4) of section 2 of the 2003 Act. Those subsections read as follows:

"(3) The statement is one that -

(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.

(4) The information is -

(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."

I set those provisions out in detail because the first ground of appeal in this case asserts that the warrant is invalid because it does not comply with the requirements of section 2(4), in particular paragraph (c) thereof. This ground focuses on the accusation of murder which is an extradition offence under section 64(2) and schedule 2.

3. It is not disputed that the time and place of the alleged offence are set out in the warrant, but it is contended that the particulars of conduct contained in the warrant do not amount to the commission of the offence of murder when read against the provisions of law cited in the warrant. I therefore turn to those particulars.
4. They are lengthy and for present purposes it is enough to summarise them. They assert that the appellant acted in an organised group with six other named individuals and that he murdered a man called Remigijus Sodeika on 28th June 2005. It is said that one of the six men, Lekavicius, brought the others to a flat into which the victim was decoyed and that the appellant and three others, acting under the instructions of Lekavicius, wrestled the victim to the ground by force. His hands were tied and his mouth taped. The appellant and another man demanded that the victim tell them where the money and collection of coins were. He initially refused and they tortured him. He was said to be in a helpless state in an especially cruel manner. The appellant intentionally hit the victim at least once in the stomach, at least twice on the back of the head. Eventually, after blows with a hammer inflicted by Lekavicius, the victim told the group where the money and coins were. Lekavicius then drove the appellant and another of the group to that location where they stole those items, before driving back to the flat. There it is said that Lekavicius ordered his accomplices to kill Sodeika. Two of them, not the appellant, pressed the victim to the ground, where Lekavicius intentionally pressed his neck with electric wire, causing asphyxia. The warrant then states:

"... by these common acts of the organised group in an especially cruel manner murdered Remigijus Sodeika being in a helpless state with the selfish intent and seeking to conceal another crime - theft of high-value property, and stole documents as well."

5. The warrant then specifies the articles of the Criminal Code of Lithuania under which the appellant is accused of criminal offences, before proceeding to set out particulars of the other offences. One of those articles, Article 129, relates to murder. Another, Article 25(3), states:

"An organised group is one, which may be formed by two or more persons at any stage of the commission of a criminal act after having conspired to commit several criminal acts, or one major or grave crime, and when each member of the group performs [a] particular task or has a particular role during commission of the crime."

One sees there some similarities to the concept of joint enterprise in English law.

6. Be that as it may, it is now contended on behalf of the appellant that the warrant is defective because the conduct alleged against the appellant does not constitute the offence of murder according to the Criminal Code of Lithuania. It must be shown, argues Mr Hook on behalf of the appellant, that the conduct amounts to the offence when read against the provisions of law cited in the warrant, or the requirement to specify particulars of conduct would become otiose. Yet in the present case those particulars merely assert that the appellant was present at the murder and not that he took part in the killing itself. Moreover, no definition of what is meant by "conspired" in Article 25(3) is given, nor is it said that he performed "a particular role during commission of the offence".
7. Reliance is placed by Mr Hook on the decision of this court in Peter von der Pahlen v Austria [2006] EWHC 1672 (Admin). That was a case where it was held that the particulars given on a warrant were insufficient to comply with the terms of section 2(4)(c). The appellant in that case was accused of fraud and dishonest dealings, but the warrant gave no details of the identity of the victims of the fraud, the number or size of certain advance payments made by the victims or the nature of the alleged fraudulent misrepresentation (see paragraph 22 of the judgment). It was held that the warrant was too vague and obscure to meet the statutory requirements. Mr Hook relies on that in the present appeal. He submits that the requirement to give particulars under section 2(4)(c) is more than a formality. In this case no particulars of murder are disclosed.
8. For my part, I do not see this as being such a case as von der Pahlen. It is quite clear that the appellant is accused of murdering the victim by being part of an organised group, the members of which had conspired to kill the victim, and that the appellant was present and apparently played a role in this. No definition for conspiracy seems to me to be required for the statutory requirements to be fulfilled. The particulars here are sufficiently detailed and not too vague or obscure.
9. As for the main argument advanced on behalf of the appellant on this ground, namely that one must be able to see that the conduct alleged amounts to the offence under the law of the state seeking extradition, that appears to me to misunderstand the role of the English courts when dealing with a European Arrest Warrant. As the preamble to the Framework Decision states, such a warrant implements "the principle of mutual recognition" and "is based on a high level of confidence between Member States". It would be contrary to the whole purpose behind the European Arrest Warrant for our courts to start seeking to apply the detail of Lithuanian law to the alleged facts of the case. Such an approach would necessitate, and would certainly allow, expert evidence, no doubt on both sides, as to the state of Lithuanian law and its application in practice, and the object of securing "a simpler, quicker, more effective procedure", to use Lord Bingham's words, would be gravely undermined. As Lord Hope said in the case of Armas (at paragraph 30):

"The judge need not concern himself with the criminal law of the requesting state when he is addressing the question whether the offence specified on the Part 1 warrant is an extradition offence."

That was dealing, I acknowledge, with that particular issue of whether the offence is an extradition offence, but the same approach seem to me to be right when one is concerned with the present issue. In the same case at paragraph 16, Lord Bingham adopted an interpretation which

"obviates the need for an undesirable enquiry into the niceties of a foreign law ..."

10. It is true, as I indicated, that Armas was not a case dealing with the specific argument now being advanced, but the essential approach there set out, which avoids the necessity for a detailed scrutiny of the details of the foreign law, seems to me to be applicable to the present argument.
11. That is confirmed by the decision of this court in Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin). There it was submitted on behalf of the appellant that the warrant failed to set out the text of the relevant provisions of Spanish law and merely identified them. This was needed (the setting out of the text) "so as to enable the court in England to decide whether the facts alleged fit the Spanish law". It was said that the appellant was entitled to argue that the conduct alleged did not amount to the identified offence under the law of the requesting state: see paragraph 28.
12. That was the argument advanced on behalf of the appellant. It was a submission which was roundly rejected by this court, which held that the English courts were not required to consider whether the conduct alleged amounted to an offence in the requesting state: see paragraph 30.
13. Mr Lloyd, who appears for the respondent today, understandably relies greatly on that decision. Mr Hook contends that the issue there was different and that the court there was concerned with the particulars of the statute in question. That is true. However the reason why the court came to the view that it did on that issue was because it concluded, in my judgment correctly, that there was no necessity for the English court to satisfy itself that the conduct alleged fitted the legal particulars as set out in the warrant. While that decision in Boudhiba is not strictly binding on us, it is persuasive, and in any event I am satisfied that it was a decision correctly arrived at. It follows that the first ground of appeal, in my judgment, cannot avail the appellant.
14. The other ground of appeal asserts that the appellant's extradition would not be compatible with his rights under the European Convention on Human Rights ("ECHR"), in particular Articles 2, 3 and 6. By virtue at least of section 21 of the 2003 Act, extradition cannot be ordered if it would be incompatible with the rights under the ECHR of the person in question. Two matters are relied on by the appellant. First, it is said that there is a real risk that he will not be afforded legal aid in Lithuania contrary to Article 6(3)(c) of the ECHR; secondly, it is submitted that he would receive inadequate protection whilst on remand in prison in Lithuania and as he is a former security guard this would give rise to a breach of Articles 2 and 3. Linked to these submissions was, before the district judge, and is before this court an application for an adjournment in order to obtain evidence to this effect. The application for an adjournment was refused by the district judge and when it was made again to this court at the start of the proceedings this morning we indicated that we were rejecting the application again.
15. Those applications reflect the fact that no evidence whatsoever has been filed to make out, even on a prima facie basis, either of the submissions. There is nothing filed to show that the appellant needs and would not get legal aid. There is nothing to show that he would be at risk of loss of life or treatment contrary to Article 3. Indeed there is no evidence to show that the appellant has been a security guard. Since Lithuania is itself a signatory to ECHR, some evidence is needed to show that there is an issue concerning a real risk of the appellant's rights.
16. This morning Mr Hook, frankly recognising the difficulties that he is in, has put in three documents to make good this deficiency. Only one of those refers to legal aid. It is a letter from the Director of Justice, dated 7th February 2005, to Lord Bassam of Brighton in the Government Whips Office of the House of Lords. What it says and what is relied on by Mr Hook is that Lithuania

"has just passed a law on legal aid which would be compliant with the European Convention but where questions must be raised in relation both to the funds available from the Lithuanian government and the quality of the legal assistance provided."

There is then a general reference to the difficulties experienced by countries emerging from Soviet domination. No response to that letter is apparently available, but in any event one has to bear in mind that that is a letter dealing with a situation, at the very least, in February 2005 rather than later; that it records that a law on legal aid had just been passed in Lithuania; that it does not deal with the situation now that that law is in operation and in any event the phraseology of "questions must be raised in relation both to the funds available ... and the quality of the legal assistance provided" seems to me to be altogether too vague to give any real comfort to the appellant. Certainly the letter does not begin to indicate that this appellant would not get adequate legal aid when facing a charge of murder in Lithuania. There is also a report about human rights in Lithuania which does not address legal aid but refers to certain other problems. We, however, have no evidence to suggest that the appellant is himself at risk of assault in prison in that country while on remand and nothing to show that he was, as I have indicated, even a security guard as alleged.

17. The district judge refused an adjournment and so did this court. We indicated when we did that that we would give our reasons in this judgment. The appellant was arrested some two-and-a-half months ago on 5th September 2006. The extradition hearing took place on 28th September 2006. It is now 20th November in that same year. That, in my judgment, is adequate time for the appellant and his legal advisers to have obtained at least some persuasive evidence to show that this is more than a pretext for delay or a fishing expedition, hoping that something will turn up. It seems to me that the appellant has simply not produced anything which is sufficient to show that an adjournment is necessary in order to obtain more evidence to support these allegations which are currently made. In that situation, I can see no basis for an adjournment and I can see no basis for allowing this appeal on the second of the grounds which is now put before us. It follows that, for the reasons I have given, I would dismiss this appeal.
18. MR JUSTICE LLOYD JONES: I agree.

(Application refused; appeal dismissed; assessment of Appellant's publicly-funded costs).