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
		4 April 2007

1. MR JUSTICE TOMLINSON: The extradition of the appellant has been requested by the Ministry of Justice of the Republic of Lithuania. Lithuania has been designated a Category 1 territory, pursuant to section 1 of the Extradition Act 2003. Thus, Part 1 of the Extradition Act 2003 ("the 2003 Act") applies, as amended by Schedule 13 to the Police and Justice Act 2006 and as modified by the Extradition Act 2003 (Multiple Offences) Order 2003.
2. The appellant's extradition to Lithuania was ordered by District Judge Tubbs on 9th February 2007. On 14th February 2007 the appellant lodged notice of appeal against that order pursuant to section 26 of the 2003 Act.
3. The ground of appeal advanced in the appellant's notice is:

"My lawyer in Lithuania states that I have a good chance of re-opening the 'parole' sentence imposed, and avoiding a custodial sentence. He will require about 8 weeks to make these arrangements in Lithuania."

4. Appended to the notice of appeal is an undated letter from a Lithuanian lawyer, Vytautas Zabiela, which asserts, in summary, that, based upon the unverified account provided to him by the appellant it is possible that (i) the penalties in the form of warning and reprimand -- perhaps licence conditions -- were unlawfully imposed outside the time limits applicable without authority and without reasons; (ii) the appellant's alleged violation of those conditions was not, if the appellant's account proves to be true, deliberate, but rather a mere misunderstanding; and (iii) that if that were the case he would be exempted from punishment according to the criminal law of Lithuania, in which case his extradition should be considered as an imposition of a custodial punishment for the same offence for which a custodial sentence has already been imposed.
5. The Act provides at section 26, in so far as it is relevant, that if the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order; and an appeal under this section may be brought on a question of law or fact.
6. Section 27 provides that on an appeal under section 26 the High Court may either allow or dismiss the appeal, and it may only allow the appeal if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. The conditions in subsection (3) are that the appropriate judge ought to have decided a question before him at the extradition hearing differently; and that if he had decided the question in the way in which he ought to have done, he would have been required to order the person's discharge. The conditions stated in subsection (4) are:

"(a) an issue that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge."

7. The overriding principle to which we have been referred by Mr Summers, for the respondent, is to be found in the speech of Lord Hope of Craighead in Office of the King's Prosecutor, Brussels v Cando Armas and Another [2006] 2 AC 1:

"... The [part 1] system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down ... the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute..."

8. The background may be very shortly stated. The appellant is a Lithuania national, who is now 43 years of age, and he has been convicted of criminal conduct in Lithuania. The details perhaps do not matter, save only that the court should record that the appellant was convicted on three counts of raping three separate 11-year old girls. Those offences took place on 16th December 1993, 4th March 1994 and 18th March 1994.
9. On 17th January 1996 the appellant was convicted of these offences in his presence and that of his legal representative before the Klaipeda Area Court in Lithuania. He was convicted of rape, pursuant to Article 118(4) of the Lithuania Criminal Code, and the court imposed a sentence of 15 years' imprisonment, that being the maximum term for the offence. For the purposes of calculating sentence, the term of imprisonment had begun to run on 21st March 1994, which I infer is the date when the appellant was first remanded into custody, that being three days after the commission of the offence which is latest in time. The appellant duly served part of that sentence.
10. As at 29th May 2003, some five years, nine months and 23 days of the sentence remained to be served. On that date the appellant was conditionally released or, as we would probably put it, released on licence, by the Klaffadorys Region District Court subject to three conditions. Those conditions were: (1) to register at the Correctional Inspectorate four times per month; (2) that the appellant was not to leave his home address in Lithuania between the hours of 10.00 pm and 6.00 am every night unless required to by his work; (3) the appellant was not to attend any establishment where alcoholic drinks were available for sale.
11. The European Arrest Warrant recites:

"Petras Montvydas did not comply with the imposed court injunctions, therefore, the Klaipeda Region District Court cancelled the conditional release from the sentence by its ruling of 2 December 2005 and referred him to serve the remaining part of the custodial sentence, however, the convicted person absconded from serving it."

What is then pointed out in the arrest warrant is that the enforceable judgment is the judgment of the Klaipeda Area Court of 17th January 1996, and it is again noted that Petras Montvydas was present in person at the delivery of the judgment of conviction.

12. The appellant has asserted before us, by means of documentation placed before court, that he came to the United Kingdom at the beginning of 2005 since when he has been living and working in Hull. At the initial hearing before the District Judge a point was raised by the legal representatives of Mr Montvydas to the effect that he had left Lithuania with the permission of the correctional inspectorate. That is a point which Mr Montvydas has reiterated in his oral submissions made to us today. To be entirely accurate, what Mr Montvydas has said on this occasion is that before he left Lithuania he made sure that he told the authorities, and he accepted that he had been in the United Kingdom for two years.
13. The point raised before the district judge in the light of that assertion of fact was that the appellant believed that he might be able to obtain a re-determination before the Lithuanian court of the decision to revoke his licence and recall him to serve the balance of his sentence. It was not submitted before the district judge that that issue was one that could engage any of the questions which the district judge had to decide. If the factual basis of this assertion were accepted by the Lithuanian authorities, it seems unlikely that paragraph (b) of the arrest warrant would be drafted as it is, although there is perhaps no necessary inconsistency.
14. However, the point having been raised at the initial hearing, Miss Charlotte Powell, a barrister employed by the Crown Prosecution Service and being the person with the conduct of this extradition request, sought confirmation from the Lithuanian authorities that the appellant had indeed deliberately breached the conditions of his licence. That confirmation was received by means of a supplemental document dated 6 February 2007, which was received by the Serious Organised Crime Agency on 7th February 2007. Whilst the English translation is headed "Unofficial translation" Miss or Mrs Powell recites in her witness statement which is before the court that she had received confirmation from the Serious Organised Crime Agency that the translation was duly authenticated. Miss Powell provided this document to the court on the occasion of the second hearing in support of her counter-observation that the Lithuanian authorities do not accept that the appellant left Lithuania with permission. Miss Powell observed to the district judge that the matter raised was for the appellant to pursue in Lithuania. The district judge for her part observed that the issue was not one that was relevant to these proceedings, but was a matter for the appellant to pursue in Lithuania.
15. The supplemental document from the Lithuanian Ministry of Justice, which is before the court, reads as follows:

"1. As it was indicated in the section b) of the European arrest warrant issued regarding Petras Montvydas, this person was sentenced on 17 January 1996 by the judgment of the Klaipeda County Court for the rape. At the delivery of this Judgment Petras Montvydas and his defender V Januskevicius were present.

2. As it was indicated in the section b) of the European arrest warrant, Petras Montvydas was conditionally released from the correctional institution by imposing an obligation upon him to register at the correctional inspectorate 4 times per month, a prohibition nor to leave home from 10 pm until 6 am, unless this relates to work. Petras Montvydas did not comply with the imposed court injunctions, left the country without permission of the correctional inspectorate therefore on 2 December 2005 Klaipeda Region District Court by its ruling cancelled the conditional release."

16. On 21st July 2006, the European Arrest Warrant was issued by the Ministry of Justice of Lithuania. The arrest warrant is issued by a judicial authority of a Category 1 territory and it contains the relevant statements which it is required to contain, pursuant to section 2(2) of the 2003 Act. If has never been submitted or suggested on behalf of the appellant that the contrary is the case.
17. The arrest warrant was submitted to and received by the Serious Organised Crime Agency, an authority designated by the Secretary of State for the purposes of Part 1. On 15th January 2007 the arrest warrant was certified by the Serious Organised Crime Agency under section 2(7) and (8) of the 2003 Act.
18. Pursuant to section 3 of the 2003 Act the appellant was arrested at his workplace in Hull on 28th January 2007. Upon arrest, the appellant confirmed his name and date of birth to be those specified in the arrest warrant. He was arrested under the authority of the warrant and cautioned, making no reply. He was taken to Hull City police station where he was served with a copy of the warrant and with a written notice detailing his rights under the Act. He was further questioned in the presence of an interpreter. He again confirmed his name to be Petras Montvydas and his date of birth to be 19th January 1964. He confirmed that he had "been in prison in Lithuania for ten years for raping young girls". He was charged and cautioned, again making no reply.
19. As I have already indicated, on 26th January 2007 the initial hearing was conducted before the City of Westminster Magistrates Court pursuant to sections 4(3) and sections 7 and 8 of the 2003 Act. Sections 4(2) and 4(3) were complied with at that hearing and no application was made under sections 4(4) or 4(5). The question of identity was decided during the initial hearing, that being a matter conceded on the appellant's behalf. As I have already indicated, the appellant had the benefit of legal representation.
20. The appellant was remanded in custody and the extradition hearing was set for 9th February 2007. On 1st February the appellant was admitted to conditional bail.
21. On 9th February 2007, the extradition hearing was conducted before District Judge Tubbs. The appellant was represented at that hearing. No contest was raised on his behalf. The district judge found that the requirements of the 2003 Act were established and, in the circumstances there being no challenge to those findings, it is unnecessary for me to go through the formal requirements of the 2003 Act which the district judge found to have been satisfied.
22. The court proceeded under sections 11(4) and 20 of the 2003 Act since the appellant is alleged to be unlawfully at large after conviction as defined by section 68(a) of the 2003 Act.
23. I have already read out the ground of appeal contained in the appellant's notice.
24. Today the appellant has placed before the court yet further material from the Lithuanian lawyer, Mr Vytautas Zabiela. This is by way of amplification of the earlier material, and includes the following passages, firstly:

"The court did not inform P Montvydas personally about the place and time of hearing the case, therefore neither P Montvydas nor his defender participated in the hearing. These are gross violations of P Montvydas' rights, even though defence of his rights is guaranteed by Arl 31 of the Constitution of the Republic of Lithuania and p 6 of Arl 51 of the Code of Criminal Procedure, since they foresee the obligatory participation of the defender when the accused (convicted person) does not participate in the process."

Secondly, Mr Zabiela says this:

"Thus, P Montvydas has nothing but the right to appeal to the European Court of Human Rights."

25. The respondent before us, who incidentally is almost certainly incorrectly identified in the appellant's notice as being the District Court of Klaffadorys Region, whereas the correct respondent should probably be the Ministry of Justice of the Republic of Lithuania, takes the view that, in view of the appellant being unrepresented, no point should be or is taken as to the material now before the court not relating to an issue raised that was not raised at the extradition hearing or being evidence now available which was not available at the extradition hearing within the meaning of section 27(4)(a) of the 2003 Act. Furthermore, in view of the appellant being unrepresented, and subject to any matter arising which is not apparent from the original Lithuanian versions which have not been seen, no point is taken as to the material not being authenticated within the meaning of section 202 of the 2003 Act.
26. However, the respondent does submit that these new materials disclose nothing that could have resulted in the appropriate judge deciding a question before her at the extradition hearing differently. The merits of the Lithuanian process and the issues of Lithuanian law are, so it is submitted by the respondent, not relevant to any decision that the extradition judge has to make. The respondent relies particularly upon an observation of Lord Hope of Craighead in Dabas v The High Court of Justice Madrid [2007] 2 WLR 254 where, at paragraph 53 he said this:

"In Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 30, I said that the judge need not concern himself with the criminal law of the requesting state when he is asked to decide under section 10(2) whether the offence specified in the Part 1 warrant is an extradition offence. Miss Montgomery said that this was not so, but I believe that what I said there was accurate. The system on which the European arrest warrant is based depends on cooperation between the judicial authorities of member states. Any scheme which retained scrutiny of the text of the foreign law as a requirement would be bound to give rise to delay and complexity - the very things that in dealings between Member States the Framework Decision was designed to eliminate."

27. The only point that has been introduced by the new material which has given me any pause to consider whether or not this appeal should be dismissed is the allegation made by Mr Zabiela (which I have already read out) to the effect that the court did not inform P Montvydas personally about the place and time of the hearing of the case, therefore neither P Montvydas nor his defender participated in the hearing. I note, particularly in the light of certain other materials to which I propose now to turn, that it is not said that Mr Montvydas was unaware of the place and time of the hearing which took place on 2nd December 2005, and it may be that this part of the document has been drafted with some care.
28. First of all I note that there is appended to this most recent document of Mr Zabiela a document which is described as an "Official Report", dated 21st October 2005 which is therefore about six weeks before the hearing which took place on 2nd December 2005. The document is a report made by a Mr Poze, an investigator to the Chief of the Klaipeda Region Police Commissariat. It reads as follows:

"I hereby notify you that when conducting the search for Petras Montvydas identification number ..., his family members, namely his mother, Stanislava Montvydiene and his sister Zybute Simuliene, were interviewed and they explained that P Montvydas had left for England where he was granted the official work and residence permits. The former mentioned family members did not indicate the precise place of residence. On 21 October of the current year I received a phone call to my personal mobile telephone number from P Montvydas, who explained that he was currently residing at the address Riccall Close B1, Hull, postal code HU6-8EH, England. Furthermore, he indicated his presently used mobile telephone number 447871415253 and his workplace, namely the meat factory ..., where he works as an operator. In addition to that, he explained that he would return to Lithuania at the end of December of the current year."

That indicates that plainly there had been contact between the authorities and Mr Montvydas and his family in October 2005, and possibly even before that; and it seems unlikely that the purpose of the official search which was being conducted was not explained to Mr Montvydas and indeed to his family.

29. The matter does not stop there, because in relation to this search there is a specific passage in the Legal Conclusion document of Mr Zabiela which has been submitted on this occasion by the appellant in support of his appeal. Under the heading "P Montvydas Search", the following is said:

"There is a question, if such search was needed, as P Montvydas was all time represented by attorney-at-law, therefore I suppose, that attorney-at-law might have known P Montvydas address. Besides, his relatives and P Montvydas mother also knew or might have known about the place of P Montvydas' residence."

As I read that, the point being made by Mr Zabiela is that it was wholly unnecessary for the authorities to conduct the search in question, because at all times Mr Montvydas was represented by an attorney -- by which I understand a Lithuanian attorney -- which attorney would of course have known of the whereabouts of Mr Montvydas.

30. When I read that, together with the carefully (as I would think) drafted statement on the fourth page of the document to the effect that the court did not inform P Montvydas personally about the place and time of hearing of the case, therefore neither P Montvydas nor his defender participated in the hearing, I infer that Mr Montvydas' Lithuanian attorney was himself well aware of the place and time of the hearing, which in the event took place on 2nd December 2005, and that he failed to attend, thinking that that might secure some procedural advantage to Mr Montvydas. It also seems to me likely that Mr Montvydas would have been told of the place and time of the hearing, and indeed he has not asserted in terms that he was not so informed.
31. The final material to which I would refer in this connection is a yet further passage in the same legal conclusion document of Mr Zabiela which, on the sixth page, reads as follows:

"The disputable Court decision of 02.12.2005 has not reached the Court of the higher instance at once. Several Court sittings took place as regard its appeal, restoration of the term missed for lodging an appeal, unless finally after half a year, with the suspended 02.12.2005 execution of the Court decision 29.05.2005 the Klaipeda Area Court heard the appeal of Arunas Suksevicius, the defender of P Montvydas, as regards 02.12.2005 Klaipeda Regional District Court decision, according to which the probation of P Montvydas was revoked and he was sent for serving the unserved sentence."

The document goes on to say that the identified attorney by the appeal requested the court to reverse the appeal decision as groundless and unlawful and to waive the proposal of the Correctional Inspectorate.

32. In the light of all of those materials, I am quite satisfied that, far from there having been any such flagrant violation of Mr Montvydas' human rights, as would be required for the court to regard anything that had happened here as other than entirely regular, the proper inference to draw is that Mr Montvydas and, in particular, his Lithuanian lawyers, were at all times fully informed of the intention of the authorities to move for the revocation of his licence, and that for tactical reasons they simply elected not to appear at the hearing. Even if that be wrong, in the light of the material which is now before the court, the court, in my judgment, could not begin to be satisfied to the required standard that there has been any violation of the rights of Mr Montvydas so far as concerns the notification to him of the time and place of the hearing at which in the event his licence was revoked. There being no other matters relied upon as entitling this court to set aside the order for extradition made by the district judge, I would, for my part, dismiss this appeal.
33. LORD JUSTICE LAWS: I agree that this appeal should be dismissed for all the reasons given by my Lord.
34. MR SUMMERS: My Lord, Mr Montvydas remains on bail to the Magistrates' Court pursuant to section 21(4). He now has, and I explain this because he is unrepresented, 14 days in which to lodge any application to my Lords to appeal further. If that is not lodged or if it is determined he then must be removed from England within ten days thereafter.
35. LORD JUSTICE LAWS: Thank you, Mr Summers. Has Mr Montvydas understood what Mr Summers has just said?
36. THE INTERPRETER: Yes.
37. LORD JUSTICE LAWS: Then there is nothing more that I need to say. I am grateful to you, Mr Interpreter, for making matters clear to the appellant.