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
		15 April 2010

1. LORD JUSTICE RICHARDS: Cranston J will give the first judgment.
2. MR JUSTICE CRANSTON: This is an appeal where the appellant challenges the decision of District Judge Evans to order his extradition to Lithuania to face charges of theft.
3. The grounds are essentially twofold. The first is that the judge should have held that the European Arrest Warrant was to secure the appellant's return for the purpose of conducting an investigation, not a criminal prosecution. Thus the warrant did not satisfy the requirements of section 2(2)(a) of the Extradition Act 2003 ("the 2003 Act") Secondly, it is said that extradition would breach the appellant's rights under Articles 2 and 3 of the European Convention on Human Rights.
4. The background to the issue of the warrant is, on the appellant's own account, that he had a girlfriend, Michalina Minkina, from 2002/2003 until the relationship terminated some time in the summer of 2008. Within days of the breakdown of the relationship, she terminated a pregnancy. On 19 September 2008 she reported the theft of her belongings. About two weeks after that, the appellant was at Ms Minkina's flat when the police came and arrested him. He was questioned about the theft, denied any involvement and kept in custody for a few days. He was taken to court and bailed to live at his home address and to report to the police four times a month. On his account the police were making further enquiries.
5. In December 2008, on his account, he was badly beaten by four to five men, all of whom were unknown to him. He believed for various reasons that the attack was arranged by Ms Minkina, or her friends, in particular a cousin of hers, who is a police officer. The appellant left Lithuania and came to the United Kingdom.
6. On 20 January 2009 a European Arrest Warrant was issued by the Prosecutor General's Office of Lithuania. The warrant is in standard form under the Council Framework Decision of 13 June 2002 (2002/584/JHA). In the warrant, the Deputy Prosecutor General "request[s] that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution". Box (a) of the warrant has details of the appellant, and box (b) sets out the decision on which the warrant is based, namely, a ruling of the 2nd District Court of Vilnius city on 11 December 2008 that the appellant be arrested. Box (c) gives an indication of the length of the sentence under the relevant provisions of the Lithuanian Criminal Code. Box (e) sets out the offence in relation to which extradition is sought. This box reads that the appellant is suspected of assisting an unknown woman fraudulently to acquire property of high value belonging to Ms Minkina:

"... [The appellant] at the time not established during investigation gave a piece of advice to a girl (whose identity was not established during investigation), provided her with information about cash and jewellery belonging to M. Minkina that was kept in the depository of the bank 'Swedbank' ... and informed her of the time M. Minkina was away from Lithuania, and, thus, he provided a girl (whose identity was not established during investigation) with a possibility on 19 September 2008, fraudulently (by introducing herself to the bank clerk under the personal data of M. Minkina), to acquire property of high value belonging to M. Minkina 55,000 Euros and jewellery of unknown value. Thus [the appellant] is suspected of committing a criminal act specified in Part 6 art. 24 and Part 2 art. 182 of the Criminal Code of the Republic of Lithuania."

The text of those articles of the Lithuanian Criminal Code and translations are set out.

7. In box (f), which deals with "other circumstances relevant to the case", there is the following:

"Pursuant to Part 3 art. 95 of the Criminal Code of the Republic of Lithuania, if a person who commits a criminal offence hides from the pre-trial investigation or trial, then calculation of the term of limitations shall be suspended. Having violated the conditions of the measures of constraint (written promise not to leave, obligation to register periodically at the police station, and seizure of documents) [the appellant] hid from pre-trial investigation, on 11 December 2008 he was announced wanted, since then the course of limitation of the judgement of conviction has been suspended."

There are then further details, for example of the issuing judicial authority. The warrant is signed by the Deputy Prosecutor General and dated.

8. The appellant was arrested in this country and ultimately appeared before District Judge Evans. District Judge Evans set out the background facts, which I have already mentioned, in particular detailing the allegations which the appellant made about the beating by the four to five men in December 2008. He noted that the appellant accepted that he had left Lithuania in breach of his conditions of bail, but set out the appellant's explanation that he did so because of the threats he had received.
9. The District Judge noted that the appellant had never reported the attack in December 2008, or any subsequent threats. The appellant said that, if he were returned to Lithuania, he would be attacked again and severely beaten, or worse. In addition, the District Judge recorded that he (the appellant) believed the Lithuanian judicial authorities to be corrupt, and he was worried that Ms Minkina or somebody on her behalf would bribe the judge to make sure that he was convicted and harshly sentenced.
10. The District Judge considered the arguments relating to Articles 2 and 3 of the Convention. He set out at paragraph 11 the test that he said ought to apply in relation to those articles. In relation to Article 2, he said that the test was whether there was an almost certainty of the appellant being killed. Under Article 3 he said that the test was whether there were substantial grounds for believing that there was a real risk of the appellant being tortured or subjected to inhuman or degrading treatment on his return.
11. District Judge Evans then went on to say that he would accept, for the purposes of analysing the appellant's application, what the appellant said in relation to the December attack. There were no medical records before him, but nonetheless he was prepared to accept the account advanced.
12. The District Judge then reiterated that the appellant had not sought the protection of the Lithuanian State. If he was truly worried, said the District Judge, he could have explained his concerns to the authorities in Lithuania. He could be kept in protective custody, and the Lithuanian prison authorities could take necessary steps to protect him from ill-treatment. As to the suggestion that the judicial authorities in Lithuania are corrupt, not a shred of evidence or other material had been produced, and he could not accept that allegation at face value.
13. The District Judge noted that Lithuania is a member of the Council of Europe, and quoted the observations of Lord Brown in Gomes v Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038, that such countries present no problem since all are subject to Article 6 of the ECHR and should readily be assumed capable of protecting an accused against an unjust trial, whether by an abuse of process jurisdiction or in some other way. In conclusion, the District Judge said that there were no substantial grounds for believing that this appellant would be at a real risk of being subjected to ill-treatment, let alone death, on his return, and there was no basis for him to conclude that the appellant would suffer a flagrant denial of justice in Lithuania.
14. Before us today Miss Bramwell challenges the warrant in succinct and cogent submissions, primarily on the basis that there is a breach of section 2(3) of the 2003 Act. Section 2(3) of the Act requires that the warrant contain a statement that the warrant is issued with a view to the person's arrest and extradition for the purpose of being prosecuted for the offence. In her submission, this warrant does not contain the unequivocal statement required. She highlights box (f), in particular the description of the appellant hiding from "pre-trial investigation". In her contention, the warrant is far from clear that the appellant is being sought for the purpose of a criminal prosecution. It might well be that he is being sought for questioning at a pre-trial investigatory stage. The wording of the warrant suggests that it was issued in January 2009 because the appellant had absconded from pre-trial investigation less than a month earlier in December 2008. The inference, in her submission, is that the appellant's extradition is being sought for pre-trial investigation. Realistically, in light of the authorities, Miss Bramwell does not place great emphasis on the description in box (e) that the appellant is suspected of an offence.
15. Miss Bramwell invoked Thompson v the Public Prosecutor of Boulogne [2008] EWHC 2787 (Admin), where Scott Baker LJ, giving the first judgment, said that care should be taken to ensure that there is nothing in the body of the warrant which detracts from the unequivocal statement that the person is required for a criminal prosecution. In Miss Bramwell's submission, the fact that the introductory words of this warrant are clear does not cure the ambiguity contained in box (f). Thompson is of course binding on this court, but a number of subsequent decisions have explained its application. In essence, each case is fact dependent and turns on a careful consideration of the wording of the warrant against the backdrop of basic principles which apply when considering extradition warrants.
16. Johnson v France [2009] EWHC 2830 (Admin) was a case where the warrant was challenged on the basis of ambiguity. It was submitted that, considering the wording of the warrant, it fell on the questioning rather than on the prosecution side of the line. In giving the first judgment of the court, I set out the basic principles at paragraph 17, and then at paragraph 18 said that it was plain, in my view, that extradition in that case was sought for the purpose of prosecuting the appellants. I then addressed Thompson, and said that that case was distinguishable because there there was a paragraph in the warrant in that case entitled "Procedure", in which it was stated that the preliminary investigation initiated by the examining magistrate was still in progress regarding Thompson, while his alleged accomplices had been placed under formal examination. It was not surprising, I said, given the contrast in the wording relating to Thompson, that the court in that case had concluded that Thompson had not been placed under formal examination.
17. Significantly, in giving the second judgment in Johnson v France, Scott Baker LJ said this:

"22. As my Lord has pointed out, the present case is clearly distinguishable from Thompson, where the outcome turned on the particular ambiguity in the warrant. Where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning."

18. Johnson v France was followed shortly after by Asztalos v Szekszard City Court [2010] EWHC 237 (Admin). Aikens LJ gave the judgment of the court and neatly encapsulated the basic principles at paragraph 38:

"38. We will attempt to summarise what we believe is the effect of all these authorities. (1) The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal. (2) In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act. (3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified. (4) The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure. (5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant. (6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself. (7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."

19. Aikens LJ then continued that, in the court's judgment, it was quite clear on the face of the warrant that the appellant in that case was an accused because that was said in box (e). The court also rejected examination of certain extrinsic documents which could not detract from the plain words, as they saw it, of the warrant itself.
20. A short while after Asztalos there was another decision of this court, Fox v Public Prosecutor's Office, Landshut, Germany [2010] EWHC 513 (Admin), where the word "suspicion" was used in the warrant in describing the conduct, ie, "there is a suspicion" that the company forwarded only part payments. It was held that this did not create an ambiguity in the context of the warrant as a whole. McCombe J said:

"12. In my judgment, however, even allowing for the uncertainty raised as to the word that has been translated, the prosecutor is right in the submission that it is clear from the request, taken as a whole, that the purpose of that request is prosecution. Clear offences are alleged, contrary to provisions of the relevant German statutes, the description mentions matters having been established already by investigation, ie completed investigation, and the wording of the very first words of the request taken in their proper context expressly ask for extradition for the purposes of prosecution.describing the conduct was held by the court not to create an ambiguity.

21. In my view this warrant is clear. At the very outset is the request by the Deputy Prosecutor General that the appellant be arrested and surrendered for the purposes of conducting a criminal prosecution. So there is an unequivocal statement that this appellant is wanted for criminal prosecution.
22. Miss Bramwell's submission regarding the wording in box (f) has the defect, in my view, of adopting a parochial approach to criminal procedure, an approach which is deprecated in the authorities. In her submission, the wording suggests that the appellant hid from pre-trial investigation and therefore is wanted for further investigation. But that is based on the assumption that this stage of the criminal process is distinct from and necessarily prior to the instigation of criminal proceedings. That may well be so under our rules of criminal procedure, but the same cannot be assumed in relation to a civil law system such as that which operates in Lithuania. To make that assumption is to reject the cosmopolitan approach which the authorities require us to apply. It is also contrary to the clear declaration, which I have already underlined, at the outset of the warrant.
23. In my view, there is no basis for Miss Bramwell's submission that the warrant was issued because the appellant hid from pre-trial investigation. The appellant's own evidence to the District Judge was that he was arrested at the beginning of October, about two weeks after the theft occurred on 19 September, and held in custody for a few days. He was then given conditional bail. The investigation had clearly begun. Moreover, the description of the conduct in box (e) is redolent of the investigation having occurred, and having failed to uncover, for example, the identity of the woman who the appellant is alleged to have used to effect the theft at the bank. In my view, read as a whole, this warrant demonstrates that the purpose of extradition is to conduct a criminal prosecution.
24. The second ground of appeal is that the extradition is not compatible with ECHR rights and therefore should not occur pursuant to section 21 of the 2003 Act. I can see no fault in the reasoning of the District Judge. It may be the case that the District Judge incorrectly stated the test in relation to Article 2 cases. But, as Miss Bramwell realistically concedes, given the test that he used in relation to Article 3, which was accurate and which is a lower threshold, there was no impact in relation to the conclusions that he reached.
25. The District Judge accepted for the purposes of his analysis the account which the appellant had given. He accepted the beating by the four to five men, and that this had hospitalised the appellant. However, as he pointed out, the appellant had not sought the protection of the Lithuanian authorities. The District Judge was not prepared to accept the contention that the judicial authorities in Lithuania were corrupt, there being no evidence. Nonetheless he pointed out that, in relation to imprisonment, there could be appropriate measures put in place so as to protect the appellant.
26. At the outset of her submissions Miss Bramwell applied for an adjournment so as to further her contentions in relation to Articles 2 and 3. She sought the adjournment to obtain expert evidence in relation to prison conditions in Lithuania and the operation of the criminal justice system there. We refused. In the case of Baranauskas v Lithuania [2009] EWHC 1859 (Admin), a similar application was refused. Again, the application was so that an expert's report on prison conditions could be obtained. Silber J said that an adjournment was not justified because the appellant had had two applications for funding refused by the Legal Services Commission, and a third was unlikely to succeed; secondly, Council of Europe countries should be assumed to be capable of protecting citizens' rights; thirdly, the appellant had had ample time since the start of the proceedings (almost eight months previously) to obtain the information; and finally because, as Collins J had pointed out at an earlier stage of the proceedings, the issue of prison conditions had been raised in many Lithuanian cases, and it had been consistently found that there were no breaches of Articles 2 and 3.

26A Miss Bramwell sought to distinguish Baranauskas on the basis that, in present circumstances, the appellant had not been represented at the hearing in January; and that although subsequently there had been an application for representation to the legal aid authorities that application had not been granted until 8 April, only a week ago. On that basis, no specific application for public funding for an expert to examine the issue of corruption in the police or the conditions in custody in Lithuania had been previously possible.

27. In my view, this application is made very late. As early as January in-house counsel at the appellant's solicitors had drafted grounds of appeal. At that point he had not in any way sought to identify the issue of prison conditions or police corruption as matters which could be added to by obtaining an expert's report.
28. Further, Miss Bramwell was unable to identify anything that an expert would be able to advance which would change the assumptions which the District Judge was prepared to make in the appellant's favour at the hearing. As I indicated earlier, the District Judge was prepared to accept that the appellant had been beaten by four to five men. As far as prison conditions are concerned, we have the approach of this court in the Baranauskas decision. For my part I would adopt the approach of the District Judge in relation to any allegations of corruption in the judiciary in Lithuania.
29. In my view, the application for an adjournment is very much a fishing expedition in the hope that somehow an expert's report will produce material which may advance the appellant's case.
30. For all these reasons, I would dismiss this appeal.
31. LORD JUSTICE RICHARDS: I agree.
32. MISS BRAMWELL: My Lords, as you are aware, the appellant is publicly funded, may I ask that costs be assessed in the usual way?
33. LORD JUSTICE RICHARDS: Detailed assessment, certainly. Thank you for your clear and concise skeleton argument - commendable - save that it did not alert us to the fact that you were maintaining the Article 2/Article 3 issue and would be applying for an adjournment. It did not alert us and it did not alert the other side - my only criticism of it. Thank you very much.
34. MISS BARNES: My Lord, may I provide the citation for Gomes?
35. MR JUSTICE CRANSTON: Do not worry, when I get the transcript I will find it. Thank you.
36. LORD JUSTICE RICHARDS: And I think my Lord referred to box (c) containing the description of the offence, when it is box (e). Thank you very much.