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
		6 February 2007

1. THE PRESIDENT: This is an appeal against the decision of District Judge Evans at the City of Westminster Magistrates' Court on 24th October 2006. On that date he ordered that the present appellant, Vytautas Senkus, should be extradited to Lithuania. With effect from 27th July 2004 Lithuania is designated a Part 1 territory for the purposes of the Extradition Act 2003.
2. The single ground advanced before this court is the passage of time, with the consequent result that any extradition order would be oppressive and unjust. The appellant relies on section 11(1(d) and section 14 of the 2003 Act.
3. The facts of this case are sometimes clear and sometimes become rather obscure. A fog seems to descend at a time when a clear view would be of greater assistance. This is the best that I can do.
4. The appellant is a native of Lithuania. He was born there in 1977. The allegation against him is that on the night of 23rd and 24th March 1996 a 16-year-old girl was taken in a car in Kaunas in Lithuania and allegedly raped by three men, The appellant, then 18 years old, was the last of the three who raped her. Rape is an extradition offence for the purposes of section 64(2) of the Act. The allegation was reported on the next day, or maybe the day after, 25th March. On 2nd April the appellant was interviewed. He denied any involvement whatever in an incident of sexual assault on this girl.
5. The decision to prosecute him was taken on 11th June and he was informed of that decision and brought before a court on the following day. He was made subject to a measure of restraint, and after signing a written pledge that he would not leave Lithuania, or maybe the area of the court, he was granted bail. He was summoned to court on 23rd October.
6. One of his co-accused, a man called Ciuksa, fled, and, as far as I can see, because he had fled, the appellant was then arrested and remanded in custody. He remained there until 8th March 1997. Ciuksa could not be found. The precise position of the third man is uncertain, but it is clear that at a later stage at any rate he became subject to an order relating to his mental condition.
7. The appellant was released on custody. He was, in our language, on bail subject to conditions which in effect amounted, if taken literally, to full house arrest, at least as acute as any of the control orders which have been occupying these courts in the last few months. In the meantime the proceedings arising out of the alleged rape were adjourned pending the arrest of Ciuksa.
8. There is a dispute about events that unfolded between March 1997 and 2005, and it is there that there is a degree of obscurity. I return to the evidence on that period later in this judgment. Ciuksa was eventually arrested in July 2005. A summons was then immediately taken out against the appellant, addressed to him as I understand it at the address in Lithuania at which he was supposed to have been living under the conditions of his bail. By then he was living in this country. He therefore was unaware of, and failed to answer, the summons.
9. On 20th September 2005, he was declared in effect to be "wanted". An arrest warrant was issued on 28th November. After appropriate process under what I shall describe as the European Arrest Warrant provisions the appellant was arrested in England on 6th September 2006. He was then granted conditional bail. At the final hearing before the district judge, in October last year, the appellant gave evidence and advanced oral argument which was rejected by the district judge. He concluded that the appellant had knowingly broken his bail conditions. That finding was critical to his conclusion and indeed now requires to be re-examined in the light of the further material before us.
10. I must now return to 8th March 1997. It seems clear that the order for house arrest was never fully implemented. If it had been given the conditions which were attached to it would have been a most extraordinary and draconian order for an individual who was presumably presumed to be innocent. What seems to have happened is that the appellant could come and go without interference and without any apparent check. It appears from the evidence of his lawyer in Lithuania that the system of house arrest involves regular police checking of the individual named in the order to ensure that the order is complied with. So far as the appellant was concerned the allegation and the investigation into it simply lay dormant. No attempt was made to try him on his own, which is plainly a process that is permissible in Lithuania, given what we now know happened in Ciuksa's case. He was tried in the absence and separate from the present appellant.
11. During this period, it is even more significant that the appellant not only left his home, but he left Lithuania altogether and went to live in the United States of America for some three-and-a-half years. He then returned back to his home address in Lithuania. He stayed there for some time and then eventually came to the United Kingdom.
12. There is an issue of fact about who kept his passport. The appellant said in his written statement that he applied to the police for the return of his passport; they were keeping it in accordance with the conditions of his house arrest. According to his statement he told them he had heard nothing more about the case, but:

"... of course they would be aware of this because they were the police and I said that I needed my passport because I wanted to do some work in the USA on a visa. They happily released that passport to me and I understand that the UK police confirmed to the prosecutor at Court when a bail application was being made that the visa stamp for me going to the US was shown clearly in my passport that the police had.

I stayed in New Jersey with my parents for 3½ years and my sister Birute was living at my parents home and for all that time again there was no further contact from the police about the case.

My parents and I then returned to Lithuania back to the original address and stayed there for another two years and still nothing more was heard. I had assumed that the matter had been discontinued as it was a lie on the part of the complainant in any event.

My sister Birute then went to the UK and I followed her in July 2005. I have stayed in the UK since then working hard as I have previously described..."

13. It is unnecessary to read out the whole of the document produced by the appellant's lawyer in Lithuania, but there are two passages that perhaps underline some of the force of the statement made by the appellant. This material of course was not before the district judge:

"So regarding the provision of this law [that is the law relating to house arrest] my defendant could not leave his place of living and appear in public places. But as I have stated, the police institution must control how this punishment, but regarding my defendant, this control was not implemented, that is the punishment was not executed, as it was not transmitted to the execution."

It is an essential part of the thesis of the lawyer that house arrest amounts to a form of punishment:

"... During the period [that is when the defendant was under the punishment of house arrest], the case was stopped [that I take to mean adjourned] for the purposes of searching for the other defendant, Ciuksa]. During this period my defendant was not asked to come to the court, or to any other law institution, he had no information about the search of another defendant. The defendant himself did not complain on the punishment, as it was not implemented, as I have stated earlier, and it made no consequences to him (as he was not controlled whether he stays at home all the time and is not visiting public places)."

Although the language would not necessarily pass as ideal structural English, the meaning of the translation is clear.

14. Very recently, on 1st February 2007, a letter was received from the Prosecutor General's Office dealing with the European Arrest Warrant for this appellant. There is no great dispute about the early part of the facts. The order for house arrest, it is said, was implemented by a conversation between the appellant and the Chief Police Commissariat of the city, and the appellant was warned that he must not visit public places, and that

"he will be monitored in order to find out whether he obeys to the requirements of the Ruling"

Of the court. It says "made on 8th April", but that I think must be 8th March, but in any event it does not matter. The letter then continues:

"More data on the fact that Vytautas Senkus violates the measure of constraint has not been received."

15. I need to be careful not to draw too many conclusions in view of the fact that this is the only material before us, but that appears to indicate that it was not being suggested at any stage after 1997 that living the way that he did and in particular leaving the country when he did, amounted to any violation of the bail conditions, at any rate in the sense that somebody would have thought it right to report it and act on it; and it is a feature of the case, however one looks at it, that, whatever the terms of the original order, if there were any complaint about the appellant's failure to comply with the conditions, there was ample opportunity for that fact to be noted, for his breach to be brought to the attention of a court, and for the court to have dealt with him accordingly. The remaining passages in this letter do not take the matter very much further; it recognises in its own text that he did cross the border, as it is put, in 2001, which is presumably the date when he went to the United States of America and later in 2005, presumably the date on which he came to the United Kingdom. And from those dates it is clear that he must, as he says, have returned to Lithuania, otherwise he would not have been crossing the Lithuanian border to leave on the second occasion.
16. None of this material was before the district judge. According to the submission on behalf of the appellant, the evidence shows that there is no apparent explanation for the delay in the proceedings. They could have proceeded without the presence of the appellant's co-accused and that there was no order restricting the appellant's movements so as to prevent him leaving the country.
17. In my judgment, in what is plainly a fact-specific decision, it is now clear that whatever else may be the case, and even assuming that it can properly be said that the appellant was in breach of the conditions of his bail under house arrest, he had not deliberately made himself a fugitive from justice in Lithuania. As far as he was concerned, on any objective analysis and looking at the timetable as I have endeavoured to describe it, it seems plain that the proceedings had gone to sleep. He came and went from Lithuania in accordance with that belief, freely and openly, without hiding, without disguising himself or his intentions. In my judgment it is not enough in this case for the prosecution to be able to point to the fact that the appellant was in apparent breach of the original conditions of his house arrest. In theory, he should never have left his house at any time between early 1997 and the date when Ciuksa was arrested in 2005, nor ever gone to any public place. Just standing back that all seems a world away from practical reality.
18. As time passed, this order was honoured in the breach, not only by the appellant himself, but by the authorities in Lithuania who must, on the evidence before us, have been aware of it.
19. His arrangements in this country now can be briefly summarised. He has a settled life here, with a full-time job, a girlfriend, and a property that he shares with his sister and her child. I look back at the timetable, and note his youth at the time of the alleged offence, the length of time that has passed since that offence, the way in which he has been able to live and establish his life following the unpursued allegation. Looking at this overall, it seems to me that on the evidence now available, in this case it would not be just to order the return of the appellant to Lithuania and in my view it would be oppressive if that order were now to stand.
20. Accordingly, in my judgment, the appeal should be allowed.
21. THE PRESIDENT: I agree.
22. MR WATSON: My Lords, I rise to ask for an order for assessment for costs.
23. THE PRESIDENT: Yes. Thank you both very much.