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
		17th December 2008

1. MR JUSTICE MADDISON: This is the appeal of Kristina Dirsyte against the decision of District Judge Wickham made on 3rd September 2008 to extradite her to the Republic of Lithuania, pursuant to a European Arrest Warrant issued on 2nd June 2006 by the Prosecutor General of that republic. Lithuania is one of the territories designated for the purposes of Part 1 of the Extradition Act 2003.
2. The warrant is an accusation warrant within sections 2(3) and 2(4) of the 2003 Act. It requests that the appellant be arrested and surrendered for purposes of conducting a criminal prosecution. It states that the appellant is accused of an offence contrary to paragraph 1 of Article 235 of the Criminal Code of the Republic of Lithuania. This article provides, insofar as it is material, that any person who, in the course of pre-trial investigation, as a witness or a victim, gives false evidence shall be punished by community service or a fine or restriction of liberty or imprisonment for a term of up to 2 years.
3. The warrant sets out the particulars of the offence alleged. It is unnecessary to recite those particulars, it being conceded that an extradition offence is disclosed by the warrant. In those circumstances, it will be sufficient to say that the allegation in short is that the appellant gave statements to the police authorities in Lithuania on four occasions between January 2004 and April 2005, advancing a false explanation for a fracture that she had suffered to her left thigh, which it was alleged had been caused by the firing of a gun by a man called Giedrius Dambrauskas, but which she contended had been suffered as a result of a fall. It is alleged that this was done with a view to helping the man concerned to escape prosecution for possessing a firearm.
4. No point is taken on the form or content of the European Arrest Warrant. The first point that was taken before District Judge Wickham and, until today, had been taken on appeal was that the warrant disclosed no extradition offence at all. Sensibly, that point has been abandoned, since such an offence clearly was disclosed and no more need be said about that.
5. The second point taken before District Judge Wickham, and again on appeal, is that, accepting that there was an extradition offence disclosed, the appellant's extradition would in itself be incompatible with her right to respect for her private and family life and her home under Article 8 of the European Convention on Human Rights. Accordingly, it is submitted that the District Judge should have discharged the appellant pursuant to section 21(2) of the Extradition Act 2003 Act 2003.
6. Mr Levine, on behalf of the appellant, accepts by reference to the case of Jaso, Lopez & Hernandez v Central Criminal Court No. 2 Madrid [2007] EWHC 2983 (Admin) that there must be, as it was put, "striking and unusual facts" before an extradition which would otherwise be lawful will be regarded by a court as disproportionate in the sense that it strikes an improper balance between the Article 8 rights of the person to be extradited and the legitimate aim of honouring and ensuring the smooth operation of obligations and arrangements with other states relating to extradition. Consistently with the case of Jaso, in the case of R (Ahsan) v Director of Public Prosecutions and other cases [2008] EWHC 666 (Admin) Richards LJ stated that the practical reality was that Article 8 would rarely provide a ground for refusing extradition.
7. On behalf of the appellant, a number of matters are raised which, it is said, taken collectively, do constitute striking and unusual facts. It is observed that the appellant had a settled life in the United Kingdom and intended to marry her Algerian boyfriend. Her boyfriend, it is said, because of his nationality, may be unable to visit her in Lithuania if she is extradited there. In addition, the offence alleged against her in the European Arrest Warrant is said to be a trivial; one and one which would not have merited prosecution in this country, or have resulted in such a prosecution. The offence proceeded on the basis that the appellant herself had first been the victim of a serious offence of shooting. Moreover, it is observed that the appellant is pregnant and we accept, on the evidence presented to us, that she is, and that she is being cared for in that regard by her general practitioner. These circumstances, taken together, it is said, satisfy the high test set in cases such Jaso.
8. On behalf of the Prosecutor General, it was submitted to the District Judge that the offence was not trivial and, in any event, the 2003 Act did not provide that the triviality of the offence was a relevant consideration when considering extradition. Moreover, it was submitted, and has again been submitted to us in writing, that there are no striking or unusual facts in this case.
9. The District Judge found that extradition would be compatible with the appellant's Convention rights. In my judgment, the District Judge was right to come to that conclusion.
10. So far as the triviality of the offence is concerned, I accept the respondent's submission that the Act of 2003 does not refer to such a matter as a legitimate consideration when deciding whether or not an application for extradition should be granted. I would add that in my judgment the offence alleged in the warrant is not properly to be regarded as trivial in any event, involving as it does the provision of false information on four occasions, over a period of 15 months, with a view to avoiding the prosecution of another person for a serious criminal offence. It is also to be observed that the maximum sentence for the alleged offence in Lithuania is one of 2 years' imprisonment, which is twice the minimum specified in section 64(3)(c) of the 2003 Act as part of the definition in that section of an extradition offence. Moreover, in my judgment, given the alleged facts, it is an offence which would certainly warrant prosecution in this country.
11. Turning to the other matters raised by Mr Levine on the appellant's behalf, the European Arrest Warrant indicates that the appellant has been in England for a comparatively short time, since 26th August 2005, and for most of that time as a fugitive from justice in Lithuania. The appellant has no family in this country, although we accept that she does have a boyfriend, who may (and I emphasise "may") not be able to visit her in Lithuania. However, no evidence has been presented to us as to what would happen were he to make an application for leave to enter or remain in Lithuania. Thus, there is no material of substance of which, in my judgment, the appellant can rely on in that regard. In any event, the fact that she may be separated from her boyfriend would not, in my view, amount to a striking or unusual fact.
12. As to her pregnancy, the position is that no evidence has been put before us as to the way in which that matter would be dealt with by the authorities in Lithuania, were the appellant to receive a custodial sentence. In my judgment, the mere fact that she is pregnant and, in that regard, is receiving treatment from her general practitioner does not constitute either a striking or an unusual fact.
13. It does not necessarily follow that the appellant will be convicted if she returns to Lithuania, or, if she is convicted, that she will receive a custodial sentence. Even if she does, the maximum sentence is one of 2 years' imprisonment. It follows that, whatever the outcome, the extradition would not prevent her from at least seeking to return to England in the not too far distant future, should she wish to do so.
14. Taking all these circumstances into account, it is my judgment that this is far from a case which presents striking and unusual facts of the kind referred to in the case of Jaso, having considered the matters relied upon on the appellant's behalf both individually and collectively. In my view, the District Judge ought not to have decided differently the questions that were referred to her, and was right not to order the appellant's discharge. For those reasons, I would dismiss this appeal.
16. SIR ANTHONY MAY: I agree that the appeal should be dismissed for the reasons given by Maddison J. I agree, in particular, that a search for striking and unusual features for the purpose of considering the proportionality under Article 8 of the European Convention on Human Rights of the appellant's extradition would not, or at least would not normally, be found by reference to the seriousness or other features of the extradition offence. I also agree that there are no striking or unusual features of the appellant's case for Article 8 purposes in this case and I agree that the appeal should be dismissed.
17. Thank you very much.