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 WC2A 2LL
		18th July 2007

1. LORD JUSTICE AULD: This is an appeal by Zilvinas Lopetas pursuant to section 26 of the Extradition Act 2003 against an order made for his extradition by District Judge Evans on 21st June 2007, pursuant to section 21(3) of the Act.
2. The sole ground of the appeal is that there was an abuse of process by or on behalf of the Minister of Justice of Lithuania ("the respondent") in the invalid certification of a European arrest warrant, resulting in his detention for a period of some 14 days. The invalidly certified warrant, in the meantime, had been dealt with by a further arrest warrant, duly certified -- the warrant challenged in these proceedings.
3. Alternatively, it is suggested that the unlawfulness of the certification of the first of these two warrants -- if not in itself constituting an abuse of process requiring the discharge of Mr Lopetas at that stage -- should have prompted the District Judge, on the hearing of the application on the succeeding warrant, to investigate the matter and to call for more information from the respondent against the possibility that there might have been some earlier abuse of process warranting Mr Lopetas' discharge.
4. The circumstances giving rise to the extradition hearing and to this appeal from it may be summarised as follows. On 11th September the respondent issued a European arrest warrant requesting Mr Lopetas' return to Lithuania in order to serve a sentence of imprisonment of just over 15 months following conviction there. Four days later on 15th December Mr Lopetas was arrested by extradition squad officers at his home in Cornwall pursuant to that warrant. Because of a difficulty in transporting him to court, he was not produced at the City of Westminster Magistrates' Court until three days later on 18th December, and so fell to be discharged under section 4(3) and (5) of the 2003 Act because he had not been brought to court, in the words of the provision, "as soon as practicable".
5. That led the respondent on 18th December, when he was brought to court late, to issue the first of the two arrest warrants to which I have referred. That warrant was certified by the Serious Organised Crime Agency ("SOCA") pursuant to section 2(7) of the Act, namely that the issue of a warrant by the respondent had the function of issuing such warrants in a Category 1 territory, as Lithuania is.
6. On 28th April, he was brought before the City of Westminster Magistrates' Court, not late this time, but the warrant fell to be discharged for another reason, namely that under section 4(2) and (4) of the Act he was able to maintain successfully that he had not been handed a copy of it as soon as practicable after his arrest. It seems that that he had been transported to court by local police officers who were unfamiliar with the requirements of the 2003 Act.
7. However, a member of the SOCA, present at court that day, observing that second error, wrongly took the view that it could be dealt with by issuing a new certificate under section 2(7) of the Act. The error was, of course, that there should have been a reissue of the warrant, properly certified, not certification of an old warrant that was no longer valid.
8. The result of all this was that Mr Lopetas remained in custody awaiting hearing of the extradition proceedings for 14 days, which is what would have happened if the defective warrant had been valid. The Crown Prosecution Service, who were acting in the matter, advised the respondent to reissue the arrest warrant, as should have happened on 28th April. This warrant, when issued, was identical to the earlier, invalid warrant, and was suitably certified under section 2(7) of the Act. The case was then listed for an extradition hearing, fixed for 21st June. Mr Lopetas attended court. He was arrested on the newly issued warrant and discharged from the proceedings which had been set in train pursuant to the previous invalid warrant. He was granted conditional bail, and a date for the extradition hearing was fixed for 21st June.
9. At the hearing before the District Judge, an argument of abuse of process was raised on Mr Lopetas' behalf, based on what was asserted to be an unlawful certification on 28th April of the earlier warrant. The basis of the argument was this court's ruling in Tollman [2006] EWCA 2256 that the judge should, in the exercise of his jurisdiction to consider abuse of process in extradition proceedings, have been prompted by that error to suspect the respondent of manipulating the procedures of the court to oppress or otherwise unfairly prejudice Mr Lopetas and should have investigated it by calling for further information from the respondent. If, as a result of any such investigation, he were to be satisfied that there were reasonable grounds for believing that such abuse had occurred, he would be bound to refuse the request for extradition unless he were satisfied that it had not.
10. The District Judge rejected that submission in a short and tightly reasoned ruling which read as follows:

"Following the second discharge the defendant should have been free to go. I conclude that the recertification of the second warrant should not have occurred and did not achieve in law what was intended (see section 213). It was done so that the case could start again. The course of conduct could have been abusive if known to be unlawful and done to detain the defendant. That is unlikely. In accordance with the case of Tollman the obligation to embark upon an enquiry is if I suspect abuse. I do not suspect it. The defence cannot put before the court any material to support the conduct of the Crown Prosecution Service and SOCA as being abusive, but suggest that enquiries should be made regarding the decision to reissue. It is also contended that once it was realised it was unlawful it should have been listed and the failure to act was abusive.

To seek to discover motives for the decision to reissue is likely to be of no value. I would expect the Crown Prosecution Service and SOCA to be honest but pragmatically I think it unlikely they will admit to acting dishonestly. The decision was made to reissue the warrant. My sense is that they were doubtful. There can be criticism of the CPS in seeking not to immediately list the case which could have been in the defendant's absence. He could then have been discharged. I do not consider that this failure was to manipulate the proceedings. I do not regard this as an abuse. The defendant has been convicted at trial in his presence. He has received a sentence and this is request for him to return to complete it. No criticism can be made of Lithuania. This was an attempt to comply with, not to manipulate, procedures in the United Kingdom. A new warrant has been issued which is valid and what happened before is no more than unfortunate. I reject the claim for abuse."

11. Mr Ben Lloyd on behalf of Mr Lopetas advances three main submissions in his challenge to that ruling of the District Judge. The first is that the issue of the certificate in relation to the second warrant was unlawful and should, by virtue of section 213 of the Act, have led to Mr Lopetas' discharge from custody.
12. The second submission was that such unlawfulness alone, followed by the unlawful detention of Mr Lopetas instead of discharge for a period of about a fortnight, was a sufficient basis upon which the judge could or should have taken the view that there was an abuse calling for the discharge of Mr Lopetas. The rationale for that submission does not appear to go beyond a concern for which there might be a remedy in another jurisdiction, namely that he had or arguably had been unlawfully deprived of his liberty for a short period of time. The consequence of that, Mr Lloyd said, was that it left him susceptible to the valid reissue of the proceedings bringing him before the court in custody. Put more shortly, Mr Lloyd's submission was that it was an abuse that should have been marked by discharge of Mr Lopetas from the extradition proceedings, so as not to appear to condone the earlier alleged unlawfulness in relation to the second warrant.
13. Thirdly, Mr Ben Lloyd submitted - albeit softly - that if the District Judge had suspected that there might have been an abuse of process as a result of all this, he should have asked for more information from the respondent as to why the second warrant was unlawfully or inappropriately certified on 28th April 2006, and that his failure to do so was an abuse of process calling for Mr Lopetas' discharge. That was a submission, as I have said, softly made, but made against the possibility that the court would take the view that the unlawful or inappropriate certification of the second warrant did not in itself trigger a finding of abuse of process.
14. Miss Melanie Cumberland -- on whom we have not called to address the court orally but whose skeleton argument we have before us, and for which we are grateful -- made a number of submissions. They may be summarised as follows. First, the proceedings in relation to the warrant of 18th December 2006 (that is the second warrant) and certified on 28th April 2007 are irrelevant. What had happened before, though unfortunate, had no bearing on the validity following the reissue of the proceedings in valid form. Second, and as a corollary of that submission, the proceedings before the District Judge and before this court are based solely on the third warrant. Thirdly, there are arguments to support the contention that what occurred in the certification of the second warrant on 28th April was lawful. Fourthly, and more generally, the sequence of events either before, during, or after that stage of the proceedings contained no basis upon which the District Judge below or this court could infer that any abuse of process had taken place. Any such inference, she submitted, would be based on mere speculation. Fifthly, the proceedings had been brought and conducted in good faith, as Mr Lloyd conceded. Sixthly, there could be no basis for Mr Lloyd's alternative submission that the District Judge should have investigated the possibility of discovering such bad faith and abuse, since there was clearly no indication reasonably to prompt him to call for such information.
15. In my view, it is not necessary for this court to rule on the lawfulness or otherwise of the issue of the certificate in relation to the second warrant. We did not invite Mr Lloyd or Miss Cumberland to address us in any great detail about that. We note Miss Cumberland's position that, whether or not that part of the story displayed unlawfulness is immaterial to the question whether, in the circumstances of this case, whatever happened on 28th April and thereafter led to abuse of process which could lead to the discharge of Mr Lopetas. So we make no ruling or finding in relation to the first of Mr Lloyd's three submissions.
16. As to the second, the unlawfulness (if it was unlawfulness) of Mr Lopetas' detention as a result of certification of the second warrant, in my view, it cannot, given the circumstances, possibly be regarded in itself as an abuse of process so as to taint in any way the reinstitution of proceedings following the issue of the third properly certified warrant. The only basis urged by Mr Lloyd was, as I have said, that, for the court not to mark what happened on 28th April as an abuse of process by discharging Mr Lopetas, would be to condone the unlawfulness. Such a submission is totally inappropriate to the circumstances of this case, the facts of which disclose, whether lawful or unlawful, no error in the way in which the proceedings were reinstituted. This does not approach the type of egregious conduct that the court has considered, notably that in Bennett which was touched on in argument. The submission, it should be noted, was maintained by Mr Lloyd, notwithstanding his disclaimer of any suggestion of bad faith on the part of the respondent.
17. As to Mr Lloyd's third argument, that the District Judge could and should have investigated against the possibility, prompted by the error of 28th April, that there might have been some skullduggery here, for the reasons given by the District Judge, there was clearly no basis for such suspicion. He could have asked, Mr Lloyd suggested, why it was that the certificate was issued on 28th April of last year. What would he have been told? Quite plainly that it had been a mistake and one which, as soon as the Crown Prosecution Service appreciated it, they corrected properly by the reissue of proceedings.
18. For all those reasons, I would dismiss this appeal against the ruling and against the order made by District Judge Evans.
19. MR JUSTICE COLLINS: I agree.
20. MR LLOYD: My Lords, I am grateful. Could I please clarify for my own benefit, when the appellant was released on 28th April that was on conditional bail but he failed to comply with those conditions. He was not remanded in custody.
21. LORD JUSTICE AULD: I will correct that. Thank you very much.
22. MR LLOYD: My Lord, also could I check the position as to a Legal Aid certificate. I understand one has been submitted to the court.
23. MR JUSTICE COLLINS: You have been granted one. I have a copy in the papers.
24. MR LLOYD: My Lord, I am grateful. Can I have an assessment?
25. MR JUSTICE COLLINS: Yes. It is dated 28th April 2007.
26. LORD JUSTICE AULD: Very well. Thank you both for your assistance.