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
		8th November 2007

1. LORD JUSTICE MOSES: This is an appeal against a ruling of District Judge Evans, dated 15th August 2007, ordering the extradition of Raimondas Baksys on the application of the Government of Lithuania. It is an appeal brought pursuant to section 26 of the Extradition Act 2003. It raises the issue as to the effect of the cancellation of a deferral of sentence imposed in Lithuania many years ago. Mr Baksys complains that he will not be given the opportunity to resist that cancellation which took place in his absence. Accordingly the extradition is unlawful, for reasons I shall develop.
2. The extradition hearing before the District Judge was pursuant to Part 1 of the Extradition Act 2003 on an arrest warrant. Lithuania is designated as a Part 1 territory under the Extradition Act 2003, by virtue of the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003, SI 2004/1898.
3. The appellant was convicted and sentenced in Lithuania to seven months' imprisonment in respect of one offence of misappropriation of property. He had with others, apparently, back in July 2001 broken the door of a repair shop of the motorised infantry battalion in memory of the Grand Duchess Birute of the motorised infantry brigade 'Gelezinis Vilkas' of the Lithuanian Army. A number of items, including target lifters and target shields, were stolen.
4. The District Judge was satisfied that that offence was an extradition offence for the purposes of section 10(2) of the Extradition Act 2003. There is no dispute but that is correct. By virtue of section 65(3) the conduct had occurred in a Category 1 territory, would have constituted the offence of burglary under the law of the United Kingdom, and a sentence of imprisonment greater than four months was imposed in the Category 1 territory, namely Lithuania. That sentence was one of seven months, and it is the nature of that sentence which gives rise to the issues in the instant appeal.
5. The sentence was one 7 months' imprisonment, but it was deferred on the performance of certain obligations. Firstly, to compensate fully for the adjudged damage of 17290 Litas (he was given time to pay that) on 1st December 2003 and, secondly and importantly for the purposes of this appeal, not to leave the place of residence without the consent of the institution supervising the sentence deferral for the deferred period of time. That sentence was passed by the judgment of the District Court of the City of Alytus on 13th March 2002. There was no dispute as to that. Although as I understand it originally there was a dispute about it, there was no dispute but that he was present when that conviction was ruled and when the sentence was imposed. But despite the sentence, on 27th April 2002, just over one month after it was imposed, the appellant departed abroad.
6. The District Judge was required, having been satisfied of the matters identified in section 10(3), to consider the bars to extradition pursuant to subsection (4) of section 10, provided by section 11. He considers those bars. None were contended for and none applied. In those circumstances, the District Judge decided that this appellant was a person unlawfully at large after conviction of the extradition offence, and he was therefore required to proceed under section 20 (see section 11(4)).
7. The argument before the District Judge was confined to section 20. Section 20(1) provides:

"If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence."

8. There was no dispute but that on 13th March 2002 the appellant was present. He was present thus when the sentence was passed and when he was convicted. But, submitted Mr Fidler (and he persists in this submission), he was not present when on 10th May 2004 the District Court of the City of Alytus cancelled the deferral of the sentence and ordered that he served the custodial sentence imposed on 13th March 2002. Mr Fidler submits that that was a separate and distinct ruling and decision, and in those circumstances was analogous to a conviction being ordered within the meaning of section 20(1). Mr Fiddler argued before the District Judge that where the words "whether the person was convicted in his presence" appear, it applies not only to conviction and sentence. The District Judge rejected that submission, rightly as I would consider, but in any event the argument was not pursued by Mr Fidler in that form before us. He was right not to pursue it, since it is plain that the statute at section 20(1) means what it says. There can be no better warrant for that proposition than the fact that later on in the same statute a distinction is drawn between conviction under section 64 and sentence under section 65. Conviction means what it says.
9. The argument before us was more sophisticated. It was that in fact there was a conviction in the form of a decision that this appellant had not complied with the obligations imposed on him on 13th March 2002, and it was beyond argument that he was not present when the decision that he had not complied with those obligations was made. In those circumstances, absent any evidence to suggest that he is going to be able to reopen the question of the cancellation of deferral in Lithuania, it is unlawful to extradite him.
10. I disagree. This is an argument advanced by the appellant which assumes that the ruling on 10th May 2004 is a ruling at which a decision is made to impose the custodial sentence on the basis of breaches of the obligations. But there is no material put forward on the basis of which that submission can be made. It appears that the sentence which the appellant is now being ordered to serve is the sentence originally imposed on 13th March 2002. If it is suggested that there is a fresh hearing at which consideration of the breaches of the obligations are considered and a fresh order that the sentence should be served, then it is incumbent upon the appellant making that contention to provide evidence of Lithuanian law to make those submissions good. Absent such evidence, all that has happened is that the original sentence passed on 13th March 2002 has been enforced. That does not amount to any fresh conviction or fresh order, still less the fresh imposition of a sentence.
11. Mr Fidler seeks to resist that conclusion by suggesting that since it is the Government of Lithuania seeking the extradition of his client, it was up to them to produce evidence to explain the nature of the hearing on 10th May 2004. I do not accept that there was any such obligation on the part of the Government of Lithuania. The whole purpose, as Ms Lindfield made clear in her submissions, of the procedures under the Extradition Act 2003 is to give force to the comity of nations identified in Part 1 of the Order, to which I have already referred, who are enabled to take the benefit of a speedy and, it was hoped, comparatively inexpensive procedure under the new Act. It would run wholly counter to the scheme of that process, which allows extradition on the basis of a European Arrest Warrant, provided it complies with the statutory conditions, to require the requesting state to request evidence relating to an issue raised by the other side. Of course there may come a time when it has to produce such evidence if it wishes to resist the implications of evidence advanced and proffered by an appellant or one who seeks to resist the effect of the warrant. But unless and until such evidence is produced, no such obligation arises.
12. Mr Fidler relies upon the wording of a letter of 27th July 2007, in which the Ministry of Justice sought to explain what had happened. In that letter it is recorded that the appellant did not perform his obligations and that the District Court of the City of Alytus "decided by its ruling of 10 May 2004 to cancel the deferral of the sentence execution and referred to serve [sic] the imposed custodial sentence." I accept that that is ambiguous, but it provides no basis for saying that any fresh ruling or fresh sentence were imposed. It is entirely consistent with the position I have already outlined, namely that all that happened was the original sentence was imposed on the basis that, as has not been disputed, the obligations for deferral were not complied with.
13. The argument is then advanced in support of the central submission that to extradite this appellant was a breach of the obligation of the District Judge, pursuant to section 3 of the Human Rights Act 1998, because it would breach this appellant's rights enshrined in Article 5 and Article 6. The judge was required pursuant to section 21 of the Extradition Act 2003 to consider whether extradition would be compatible with this appellant's rights (see section 21(1)). No argument was advanced before the District Judge that his rights would be breached.
14. Accordingly, Ms Lindfield contended that it was not open to the appellant to raise them now. She did so not on the basis of section 27 of the Act, which clearly envisages new issues being raised on appeal, but rather because, since they could have been raised at the time, it would be unfair for them to be raised now. She referred us to a decision of this court in Pilecki v Circuit Court of Legnica, Poland [2007] EWHC 2080 (Admin). That was a wholly different case, in which an appellant sought to argue that he had not been present for the first time before the appeal court. No notice had been given of that and thus the respondent was not in a position to adduce evidence. The court therefore took a strict view as to that attempt to ambush the requesting State. But the position is not that here. Lithuania has known for some time the basis of the complaint advanced on behalf of the appellant, that he would not have an opportunity to resist the imposition of the sentence.
15. But again this argument fails on the basis I have already identified. There is simply no material, let alone any evidence, to suggest otherwise than what happened on 10th May 2004 was merely the consequence of the imposition of the sentence on 13th March 2002. There was no fresh conviction and no fresh imposition of a sentence. The justification for what happened on 10th May 2004 was the conviction and sentence imposed on 13th March 2002, at which the appellant was present and which he had every opportunity to resist.
16. In those circumstances, there is no evidential basis for the argument which is advanced on this appeal today and I would dismiss it.
17. MR JUSTICE JACKSON: For the reasons which have been given by Lord Justice Moses, I agree that this appeal must be dismissed.
18. MR FIDLER: Thank you, my Lords.
19. LORD JUSTICE MOSES: Nothing else we need say?
20. MS LINDFIELD: No.
21. LORD JUSTICE MOSES: Thank you both very much.
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