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
		17 June 2008

1. LORD JUSTICE RICHARDS: This is an appeal under section 26 of the Extradition Act 2003 against an order for extradition made by District Judge Nicholas Evans at the City of Westminster Magistrates' Court on 12 May 2008. The appellant's extradition was sought under a European Arrest Warrant issued by the Prosecutor General's Office, Lithuania, which is the respondent to these proceedings. The case is governed by Part 1 of the Act.
2. The essential issue in the appeal is whether the District Judge was wrong to reject the argument that the appellant's extradition was barred by reason of the passage of time pursuant to sections 11 and 14 of the Act.
3. According to the warrant, the appellant is sought by the Lithuanian authorities in relation to three offences of forgery or possession of forged documents. It is alleged that in February 1994 in Lithuania, while working as a general manager of a private limited company called "Kirba", he forged extracts from the minutes of the shareholders' meeting to secure a mortgage against the immovable property of the company; and secondly that he obtained a mortgage of approximately £45,000 from a bank by fraudulently presenting the forged extracts. A third and separate allegation is that in February 1995, in Lithuania he obtained the sum of US$6,000 from a company called "Fart" by the making of a fraudulent representation.
4. The warrant further alleges that the appellant hid from pre-trial investigations and that on 8 March 1996 the search for him was announced. Further information provided by the respondent on 25 April 2008 gave details of complaints made in 1995 and of investigations carried out, including the names of witnesses who were questioned and a description of the documents which, or copies of which, were seized. It is stated that the appellant himself was never questioned. On 8 March 1996 it was decided to charge him in his absence. He was announced wanted, and a measure of constraint (requiring him not to leave the country) was imposed upon him. Thereafter, however, it was not until 1 July 2006 that a Lithuanian domestic warrant was issued for his arrest, which was followed by the issue of the European Arrest Warrant on 21 July 2006.
5. The further information states that the reasons for assuming that the appellant hid from pre-trial investigations are that he and his wife had not been residing at their registered address; the appellant's father explained that the last time he saw his son was in autumn 1994, and that his son left for a long-lasting commercial journey. Long-lasting and continuous absence from his permanent residence was said to have grounded the allegation that he went into hiding. In order to establish his location, various people had been questioned. His grandmother said that the last time she had seen him was in spring 1995. His brother said he knew nothing of the appellant's location. The director of Kirba said he had last seen the appellant during a company meeting in 1995. Enquiries were sent to the police commissariat in the district where the appellant's sister lived, but he was not found there. It was not established whether he had crossed the national border, although there was some indication that he could possibly have gone to the Ukraine. The warrant was not issued earlier because there was no information available earlier that he could be in a member state of the European Union.
6. The District Judge heard oral evidence from the appellant, who confirmed his witness statement and was cross-examined upon it. I think it unnecessary to give the details of his witness statement, though I would note that he did claim to have left Lithuania in June 1996 to move to the United Kingdom because he was looking for a new life, new work and better education for his son, and to have arrived in the United Kingdom on the next day. He had then claimed asylum in this country a few weeks after his arrival.
7. Having considered the evidence, both written and oral, together with the information provided by the respondent authority, the District Judge gave his ruling ex tempore. There are two notes of that ruling: one, apparently based on notes by the court clerk, is signed by the District Judge and dated by him; the other is a note agreed between counsel, which to a relatively minor extent goes beyond what is in the note signed by the District Judge. I propose for the time being to read the note signed by the District Judge, which seems to me to be the official authorised note and should be used for present purposes. He said:

"In this case the defendant seeks to rely upon a bar to his extradition by reason of passage of time.

According to Lithuania, he fled the jurisdiction to avoid arrest and prosecution. Where that suggestion is made, there is never going to be absolute evidence that is what has occurred but an inference which can be drawn from the circumstances.

The defendant is accused of defrauding his partner. He had been in the habit of travelling in Russia, the Ukraine, Latvia and other places for large chunks of time.

In 1996 he travelled to the UK and never returned to Lithuania. He still has family there. I find it odd that he has not returned to Lithuania, he clearly has money. I think the inference can be drawn that Mr Krompalcas 'knew the balloon had gone up' and left the country to avoid arrest. Members of his family were spoken to by the police and have no idea where he was. On his own account he was still in the country. I cannot believe that he did not know of these enquiries. He did not tell the registrar of Lithuanian addresses where he had gone or leave a forwarding address.

I find Mr Krompalcas is not in a position to make a submission about passage of time because he fled the jurisdiction.

However, assuming I am wrong about that, he has failed to show he cannot receive a fair trial if returned to Lithuania. It is suggested that the prosecutor in Lithuania has said that the availability of witnesses is not necessary. There is no basis for me to assume that the witnesses are not available. In any case, a case such as this is likely to turn upon documentation.

There is no basis for this court to assume it would be unfair to return Mr Krompalcas to Lithuania. The Lithuanian judge can consider submissions himself and decide if he can have a fair trial.

On the submissions of oppression, Mr Krompalcas has set up a company employing a large number of people. If he is taken away from the business it will undoubtedly suffer. It does not provide sufficient exceptional circumstances to say it would be oppressive to return him."

I leave out a passage relating to Article 8 of the ECHR.

8. The submissions now made on the appellant's behalf by Mr Lloyd are, first, that the District Judge erred in concluding that the appellant was a fugitive from justice. It is contended that he did not flee Lithuania knowing that he was wanted for these offences; and secondly, that the District Judge erred in concluding that it would not be unjust by reason of the passage of time to extradite him.
9. Section 11 of the 2003 Act specifies a number of statutory bars to extradition, including the passage of time. Section 14, as amended, provides, so far as material:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have-

(a) committed the extradition offence ... "

10. Counsel have cited the well-known passage from Kakis v Government of Cyprus [1978] 1 WLR 779, in which Lord Diplock stated that "unjust" is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, and "oppressive" is directed to hardship to the accused resulting from changes in his circumstances. Both limbs were relied on before the District Judge, but Mr Lloyd no longer seeks to submit that it would be oppressive to order extradition. His case is simply that it would be unjust so to order.
11. In Kakis, Lord Diplock went on to say that delay brought about by the accused himself fleeing the country, concealing his whereabouts or evading arrest cannot be relied on as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making, and save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.
12. That passage has been generally followed for many years, though has been subject more recently to a certain amount of judicial comment. The most recent pronouncement to which we have been referred is that of the Divisional Court in Krzyzowski v Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin), in which the court rejected glosses or limitations placed upon what Lord Diplock said in Kakis and held that the District Judge in that case had been correct to approach the matter on the basis that once he had found deliberate flight, the appellant could not rely on the passage of time unless it could be said that the circumstances of the case were, in Lord Diplock's words, "most exceptional".
13. There are two other relevant matters dealt with in Kryzowski. First, the court held that the burden is on the requesting authority to prove beyond reasonable doubt that the person requested did deliberately flee the country. This is to be contrasted with the general burden on an appellant under section 14 to prove the risk of injustice on the balance of probabilities.
14. Secondly, Longmore LJ expressed the view that the submission that the District Judge was wrong to decide that the appellant deliberately fled the country to avoid prosecution was "a very difficult submission in a case in which the judge actually heard the appellant give evidence and disbelieved a number of the things that the appellant had said" (paragraph 17). The matters on which the appellant in that case had been disbelieved included an assertion that he was never given a document to sign by the authorities informing him of his rights and duties in circumstances where proceedings against him had been commenced. Longmore LJ said that once a judge who has seen a witness give evidence disbelieves him on that matter, he is almost inevitably going be sure that the appellant deliberately fled to avoid prosecution.
15. Those then are the broad legal principles, in relation to which there has been no serious contest before us.
16. In relation to the first submission, that the District Judge was wrong to find that the appellant was a fugitive from justice, Mr Lloyd submits, first, that the District Judge erred in saying that there is "never going to be absolute evidence" that flight from justice to avoid prosecution is what has occurred. He submits that there are indeed such cases where direct evidence of absconding is available. Mr Lloyd refers further to the passage in the ruling in which the District Judge found it "odd" that the appellant had not returned to Lithuania. It is submitted that that is not a sufficient basis for an adverse finding and that there are other inferences that can properly be drawn from the fact that there has been no return to Lithuania.
17. As to the reliance placed on contact by the police with members of the family, the points made include this, that the absence of contact by the appellant's father with him since autumn 1994 cannot justify the adverse inference made, since the appellant claims not to have left Lithuania until June 1996. As to that, I have mentioned already that that was his evidence. We are told that the point was not challenged before the District Judge, though it was not supported by independent evidence. It is, however, right also to note that there is material suggesting that the appellant travelled elsewhere, including long trips abroad, and any suggestion that he was in Lithuania throughout the period until June 1996 must be treated with caution.
18. Mr Lloyd criticises another aspect of the judge's ruling. This is something that is to be derived not from the official version from which I have previously quoted, but from the version agreed between counsel, which records this:

"I guess, and I accept it is a guess, you told your family where you were. You did not tell the Registrar/register of addresses where you had gone. You did not leave a forwarding address."

19. It is submitted that a guess is not a proper basis for an inference, as to which it may be observed that, although the language of guess-work may be inappropriate, the reasoning of the District Judge appears in truth to be a matter of inference rather than guess-work.
20. Mr Lloyd submits that it cannot be said that the appellant fled knowing he was about to be accused of these offences. The complaints about them were made in July and November 1995 respectively. The decision to pursue the case was taken in early 1996. Yet he only left the country in June 1996. There is nothing in the circumstances to sustain a finding that he left to avoid prosecution. Moreover, when he arrived in this country, he lived openly here. He had travelled on a passport in his own name. He did not attempt to conceal his name or his whereabouts.
21. In relation to those matters, the counter-submission made by Ms Hill in her skeleton argument is that the judge's findings are based upon cogent reasoning. She suggests that it is unlikely there will ever be definitive evidence to show that a person has fled, but that such a finding must be based upon the credibility of the requested person in giving his account and inferences which can be drawn from the circumstances of departure. Although the District Judge did not expressly state that he was satisfied of flight beyond reasonable doubt, there is nothing in his judgment which gives rise to a concern that he did not apply the proper standard, and it is submitted that, in reaching the conclusion that he did on the facts, the District Judge was correct.
22. I accept those submissions. It is to my mind very important that the District Judge heard the appellant give evidence and took into account that oral evidence, together with the other matters to which he referred, in reaching his conclusions. It seems to me that he was entitled to draw the inferences that he did having taken into account the oral evidence. He approached the matter correctly. Although he did not refer in terms to the burden and standard of proof, there is nothing to suggest any error in that respect and it is no part of Mr Lloyd's submissions that he fell into such error.
23. This seems to me to be very much a finding of a kind with which, as was said in Krzyzowski, an appellate court will be very slow to interfere. This is perhaps not as strong a case on its facts as was Krzyzowski, but the basic point to be made in relation to it is the same. I am wholly unpersuaded by Mr Lloyd's submissions that it was not properly open to the District Judge to find that the appellant had left Lithuania in order to avoid prosecution and proceedings against him.
24. It seems to me that that finding is dispositive of the case, on the basis of Lord Diplock's approach in Kakis as followed in Krzyzowski. This is nowhere near being a case where there might exist most exceptional circumstances enabling the appellant to advance a case of injustice notwithstanding that the delay and its consequences were the result of his own deliberate choice in fleeing the country.
25. Mr Lloyd contended that if the situation was one of mere suspicion rather than a finding to the criminal standard that the appellant was a fugitive from justice, then he should not be precluded from advancing arguments of unfairness under section 14. I do not dissent from that, but, as it seems to me, this is a case where there has been a finding to the criminal standard. It is not a case of mere suspicion, and it is in the circumstances not a case where the appellant is in a position to advance arguments as to unfairness under section 14.
26. For completeness, however, I should make clear that I would not accept the submission as to unfairness even if, contrary to what I have already said, I had concluded that the District Judge erred in finding that the appellant had deliberately left the country to avoid prosecution.
27. Mr Lloyd submitted that the judge failed to apply the correct test in considering whether the appellant could receive a fair trial rather than whether it would be fair to return him. I can see nothing in the facts of this case that gives rise to any additional consideration in the context of unfairness beyond whether he would receive a fair trial. Nothing else has been specifically put forward. So it seems to me that the District Judge was entirely correct to focus on the substance of the matter concerning a fair trial.
28. Mr Lloyd has put forward five individual points which are, in summary, these. First, a considerable amount of time, some 14 years, has elapsed since the date of the first of the offences charged, and a part of that time includes a period of inactivity on the part of the authorities, between 1997 and 2006 (as to which I note that the explanation reasonably given is that the appellant's location was not known during that period). Secondly, there is said to be a real risk that documents will no longer be available to the appellant. He had no reason to retain documents such as business records, correspondence, bank statements and land registry documents, and would not be able to obtain those documents now. That would place him at difficulty in meeting the allegations against him. Thirdly, it is pointed out that he was not arrested or interviewed at the time. Fourthly, as to the documentary evidence that does appear to be available, it is said that it appears to consist mainly of copies of the important documents. That would make it difficult to conduct expert analysis to determine whether a relevant document was forged. The appellant has lost the opportunity to have the original material analysed.
29. Fifthly, a point is taken about availability of witnesses. The respondent had been asked previously to clarify the position as to availability of witnesses. There was an application before the District Judge for an adjournment in order to enable further information on this to be obtained. I did not understand Mr Lloyd in his oral submissions to challenge the District Judge's refusal of the adjournment, although the point was raised in the skeleton argument. The refusal of an adjournment was plainly within the reasonable discretion of the District Judge. But what is said on this topic now is based largely on a letter handed in this morning, in which, in imperfect English, a representative of the Public Prosecutor's Office refers to checks that have been made in relation to witness data. The letter says that all witnesses at the moment are still alive, except one, about whom there is no information because he went to Poland in 2006. It is said that telephone numbers of witnesses are not in the possession of the office. All witnesses, except the one already mentioned, declared that they are domiciled in Lithuania, so the view is expressed that it would not be very hard to reach them. Information had not been found about one witness, who was said to have lived in Vilnius in 1995 but in relation to whom the Lithuanian Inhabitant Information System says that such a man does not exist.
30. As to that letter, Mr Lloyd suggests that it indicates an insufficiency of checks in relation to witness availability and that there is a real risk of the appellant being prejudiced at trial through non-availability of witnesses. It does not seem to me that the letter justifies an inference that no checks have been carried out. On the contrary, there have been further checks, as is clear from what is said in the letter.
31. As to the one witness about whom no information has been found, Ms Hill has pointed out that he has a subsidiary role in relation to the third and, as it seems to me, least significant of the three offences with which the appellant is charged.
32. More generally, it seems to me that the matters put forward by Mr Lloyd do not establish a cogent case with regard to injustice. The position is that the appellant himself plainly recalls the incidents which are the subject of the allegations against him. His witness statement before the District Judge shows that he has a clear account in respect of it and knows clearly what his defence is. The relevant documents have been retained by the police, albeit some of them in the form of copies. It has not been shown that expert analysis of those documents will not be possible or that the defence has been significantly prejudiced by the fact that only copies rather than originals of certain documents are available, if indeed that is the case. There is no sufficient case of tangible detriment to the defence. The material in relation to witnesses provides no basis for inferring that key witnesses will not be available.
33. Ms Hill has drawn attention to the case of Harvey v Judicial Authority of Portugal - Tribunal Judicial De Albufeira [2007] EWHC 3282 (Admin), in which an extradition order was upheld by this court in a case where 17 years had elapsed from the alleged offence, which was a single instance of check fraud, and the appellant was allegedly in a worse position than the appellant in this case, in that the appellant in that case claimed not to be able to remember the particular transaction and not to be able to access documents relevant to his defence. The approach of the court in that case is generally supportive of a dismissal of the claim of unfairness on the facts of the present case.
34. There is, moreover, one additional and very important factor to be gleaned from what is said in Harvey, and that relates to this consideration: that the Lithuanian courts can themselves be relied upon to supervise the trial process and ensure that the delay that has occurred does not result in an unfair trial. In Harvey, Maurice Kay LJ (with whom Burton J agreed) rejected an argument that return to Portugal to face trial on a fraud charge after some 17 years would be unfair because of difficulties in relation to documentary evidence and of recollection after such a period of time. He referred to Krzyzowski, amongst other cases, and stated at the end of his judgment that the appellant "has not produced any material suggesting deficiencies in the Portuguese system or justifying a departure from our obligation to give full faith and credence to the legal and judicial system of a fellow European country". The same can be said in relation to Lithuania in the present case. In addition, therefore, to the various individual points I have made in respect of Mr Lloyd's submissions on unfairness, I would place weight on this broad consideration derived from Harvey, which is in line with the consistent approach of this court in other Part 1 extradition cases.
35. I have added at undue length those observations in relation to unfairness -- undue because, as I have said, the appeal fails in any event because of my conclusion that the District Judge was correct in his finding that the appellant was a fugitive from justice, which was dispositive of the matters sought to be relied on under section 14.
36. For those reasons, I would dismiss this appeal.
37. MR JUSTICE MACKAY: I agree.
38. MR LLOYD: My Lord, I rise simply for a detailed assessment of legal aid costs.
39. LORD JUSTICE RICHARDS: Of course you may have that. Thank you very much, Mr Lloyd.