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
		19th December 2006

1. LORD JUSTICE RICHARDS: This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Purdy at the City of Westminster Magistrates' Court on 12th October 2006 to order the appellant's extradition. The case falls under Part 1 of the Act. Extradition is sought pursuant to a European Arrest Warrant issued by the Prosecutor General's Office of the Republic of Lithuania, the respondent to the appeal.
2. The details of the offence with which the appellant is charged are given in the warrant as follows:

"On 10 January 2004, at approx. 8am at the premises of the public institution at 'Kedainiu ligonine' (Kedainiu Hospital), Tatjana Sidlauskaite misappropriated the property of Dalius Valdavicius that had been entrusted to her, namely: the citizen's passport of the Republic of Lithuania; social insurance certificate; mobile telephone NOKIA 2100, Vilnius Bank credit card VISA ELEKTRON, thus causing property damage of 1000 LTL to the victim D Valdavicius."

The nature and legal classification of the offence and the applicable statutory provision are described in the warrant as follows:

"Tatjana Sidlauskaite is suspected of committing a criminal offence punishable under Paragraph 1, Article 183 of the Criminal Code of the Republic of Lithuania.

Art.183. Misappropriation of Property

1. Any person, who misappropriates the property or a property right belonging to another person that was entrusted to him or left in his care, shall be punished by community service, or a fine, or imprisonment for a term of up to 3 years."

3. Ms Norris advances two concise and overlapping submissions on the appellant's behalf. The first is based on section 2(4)(c) of the Act, which provides that the warrant must contain:

"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;"

4. It is submitted that in this case there are insufficient particulars of the conduct alleged to constitute the offence. It is not possible to determine what the word "misappropriation" means in the description given in the warrant. The nature of the misappropriation is not known. No detail is provided as to how the property is said to have been misappropriated. Is it alleged, for example, that the appellant damaged it, sold it, lost or misplaced it, or failed to return it at the correct time, having previously borrowed it? The submission made is that, in the absence of sufficiently precise particulars, the warrant is invalid.
5. The second submission is based on section 64(3)(b) of the Act. A condition that has to satisfied as set out in that provision is that:

"the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom".

It is submitted that it cannot be said that the conduct set out in the warrant would amount to an offence under the law of England and Wales if it had occurred here. Accordingly, the conduct set out in the warrant is not shown to amount to an extradition offence. In support of that, it is said that no determination under section 64(3)(c) can properly be made owing to the paucity of information provided in relation to the conduct said to constitute an offence. The only proper inference to be drawn from what is set out in the warrant is that the appellant is alleged to have acted in a manner which is in some way inconsistent with the property rights of Dalius Valdavicius. It may be that she dealt with the property in a way which was inconsistent with a moral obligation or inconsistent with a fidiciary duty or in contravention of a term of employment or in some manner amounting to a civil tort. It cannot, however, necessarily be inferred that the conduct amounted to an offence under English law. The District Judge held the equivalent offence under English law would be theft contrary to section 1 of the Theft Act 1968. Ms Norris says that that finding, that the warrant describes an offence equivalent to theft, involves unacceptable speculation and goes beyond the language of the warrant itself.

6. In my judgment, the two submissions made under section 2 and 64 respectively stand or fall together. In each case the question is whether a sufficiently certain and specific meaning can be given to the word misappropriation in the English translation of the warrant. As to that, Mr Lloyd, for the respondent authority, submits that the meaning in this context is clear. He cites the Concise Oxford Dictionary definition of "misappropriate", namely "dishonestly or unfairly take for one's own use". He refers to the context of the warrant, namely a criminal offence carrying a sentence of up to three years' imprisonment. He submits that the warrant clearly alleges that the appellant took the property belonging to Dalius Valdavicius for her own use and did so dishonestly or unfairly and that the reference to property damage in the stated sum is an allegation that the victim was permanently deprived of the property and, in consequence, suffered loss in the stated sum. Mr Lloyd submits that one does not need any further particulars as to how precisely the property was taken.
7. I accept those submissions. In my judgment it is plain in this context that misappropration refers to the dishonest taking of the property for the appellant's own use. It follows that there is, in my view, no lack of specificity for the purposes of section 2(4)(c). Likewise, once one concludes that the conduct referred to in the warrant is that of dishonest taking of another person's property, causing that person to be deprived of the property and to suffer loss in the stated sum, an offence contrary to section 1 of the Theft Act 1968 is clearly the equivalent offence in this jurisdiction and the relevant condition is clearly met.
8. I have borne in mind Mr Lloyd's more general submissions that the warrant must be read in the light of the observations in Office of the King's Prosecutor, Brussels v Cando Armas and another [2005] UKHL 67, concerning the simpler, quicker and more effective procedure intended to be introduced by the EC framework decision to which Part 1 of the Act gives effect. I have also borne in mind the case of Fofana & Belise v Deputy Prosecutor Thubin Tribunal De Grande Instance De Meaux, France [2006] EWHC 744 (Admin) at paragraph 39, where Auld LJ says this:

"39. Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal 'pleading' vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:

"... the background to the relevant provisions made in the 2003 Act is an initiative of European law and ... the proper administration of those provisions requires that fact to be borne firmly in mind ... the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme...'"

9. The conclusion I have reached in this case is one that follows naturally from the wording in the warrant. But in any event this is an area where, for the reasons given in that passage, it seems to me one should not be too astute to look for technical points concerning the precise meaning to be given to individual words used in the warrant.
10. I see no inconsistency between that and what is said in various authorities referred to in Ms Norris' skeleton argument as to the importance of an accurate and fair description of the conduct constituting the offence alleged and for the need for the courts to be vigilant to ensure that the extradition procedures are strictly observed. One can adopt an appropriate degree of strictness and vigilance without getting caught up in fine points of technicality as to the precise meaning of words used.
11. For the reasons I have given, I would dismiss this appeal.
12. MR JUSTICE OWEN: I agree.