England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 October 2015

1. MR JUSTICE MITTING: The extradition of the appellant is sought on a European Arrest Warrant issued by the Prosecutor General's Office of the Republic of Lithuania on 13 May 2014. The warrant was certified by the NCA on 21 November 2014. The appellant was arrested on 22 November. After a contested hearing his extradition was ordered by District Judge Blake on 15 June 2015. He sought permission to appeal under the new system. On his application I gave him permission to appeal on 16 July 2015.
2. Before the District Judge, the appellant relied on four grounds under sections 10 and 21 of the Extradition Act 2003. Only one of the four original grounds is now pursued, although two grounds are relied on. One was rejected by the District Judge: that under section 12A, as the District Judge put it, the appellant had not proved that his absence from Lithuania was not the sole reason for his not being charged or tried under section 12A, and a second, which was not advanced to him, that the warrant is not on its face an accusation European Arrest Warrant which satisfies the requirements of Section 2(3). The grounds are interrelated.
3. Mr Sternberg for the requesting judicial authority submits that I should not entertain the new ground because it was not raised before the District Judge (see Koziel v District Court of Kielce, Poland [2011] EWHC 3781 (Admin) at paragraph 7). This, it seems to me, is a point relevant to the permission stage. For better or for worse, I have granted permission and therefore it is in my judgment too late for the point to be taken by the requesting judicial authority. I will go on to consider that ground for that reason only.
4. The warrant begins with standard wording that the surrender of the appellant is required:

i. "for the purposes of conducting a criminal prosecution or executing a custodial sentence..."

5. It does not state which. Nevertheless, it is clear from its terms that it is not a "conviction warrant". It is either an "accusation" warrant which satisfies the requirements of section 2(3) or it is ineffective. Box (b) identifies the decision on which the warrant is based, the ruling of the District Court of Kédainiai Region on 27 March 2014 "to impose a measure of constraint - arrest (pre-trial investigation)" and the number of the case is then given.
6. Box (e) specifies the offences in considerable and certainly sufficient detail: two thefts of money from ATMs by unauthorised used of a payment card belonging to Sietuva UAB, a private limited company of which the appellant was a director, and of concealing accounting records of the same company; all of those matters occurring between June 2011 and August 2013.
7. The warrant was supplemented by further information provided by the requesting judicial authority in a letter dated 27 March 2015 which stated (1) the appellant was not aware of the pre-trial investigation because his location was unknown, (2) the pre-trial investigation yielded "sufficient amount of data to suspect that [the appellant] has indeed committed the criminal offences...", in other words, those specified in the warrant. They were identified as including reports by the director of an affiliated company and by a forensic specialist, interviews with witnesses and another suspect, and miscellaneous documents. The letter went on to state:

i. "There is no possibility to provide the court with the pre-trial investigation material for further consideration without conducting the interview of [the appellant]. Furthermore, the samples of his handwriting have to be taken as well."

8. It also stated that the appellant "has been recognised as a suspect and... has been announced wanted." The letter explained that Lithuanian criminal procedure fell into five stages: pre-trial investigation, judicial proceedings at the court of first Instance, judicial proceedings at the court of appeal, enforcement, and judicial proceedings at the court of cassation.
9. The letter concluded:

i. "The case No. 20-9-00671-13 is currently in the first stage of criminal proceedings. In Lithuania this stage is called pre-trial investigations and it is in this stage that the criminal prosecution of the person who is named as the suspect in the context of the said stage is initiated. The status of a suspect is granted to a person in cases where a sufficient amount of factual data is obtained in the context of the case which allows presuming that a criminal offence has indeed been committed and that it was done by specific person."

10. The relevant statutory provisions are to be found in section 2(3), 12A and 206 of the Extradition Act. 2(3) provides:

i. "The statement is one that—

(b) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the

i. warrant, and

(c) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the

i. offence."

11. Section 12A provides relevantly:

i. "(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution if (and only if)-

(a) it appears to the appropriate judge that there are reasonable ground for believing that-

(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and

ii. (ii) the person's absence from the category 1 territory is not the sole reason for that failure, and

(b) those representing the category 1 territory do not prove that-

(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or

i. (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure."

12. Section 206 requires that the criminal standard is applied to any factual question where the burden of proof lies on the requesting judicial authority.
13. Ms Townshend for the appellant submits that (1) the warrant does not state that it is issued with a view to the arrest and extradition of the appellant for the purpose of being prosecuted for the offences. It is, on the contrary, she submits, equivocal so that the requirements of 2(3)(b) have not been satisfied; (2) there are reasonable grounds for believing (a) that the requesting judicial authority has not made a decision to charge or to try the appellant, (b) the appellant's absence is not the sole reason for that "failure"; (3) the requesting judicial authority has not proved to the criminal standard that (a) they have made a decision to charge or try the appellant or (b) if not, the appellant's absence is the sole reason for that "failure".
14. The first ground of appeal can be rapidly dealt with. It is obvious that the warrant is not a conviction warrant. It does not contain the information required by section 2(6). It does contain the information required by section 2(4), details of the offence and so forth. It is therefore obvious that it was intended to be a warrant designed to secure the extradition of an individual who had not been convicted. The warrant does not state on its face, as required by section 2(3)(a) that the appellant is accused of the offences specified in the warrant, but by necessary implication from the opening words of the warrant: "I request that [the appellant]... be arrested and surrendered for the purposes of conducting a criminal prosecution..." he must be accused of the specified offences. Otherwise his arrest and extradition wound not be required for that purpose but for a different purpose, to enquire whether there were grounds for prosecuting. Accordingly, I reject the first ground of appeal.
15. The second ground gives rise to much greater difficulty. The first difficulty is created by the District Judge's ruling upon it. It was contained in a short paragraph of his ruling and is as follows:

i. "I have considered the submissions made in respect of Section 12A and I agree with the submissions of the JA the RP has not proved that his absence from Lithuania is not the sole reason for him not being charged. The further information from the Lithuanian authorities clearly sets out the extent of the investigation which has been carried out so far. The absence of the requested person appears to me to be the reason why further decisions could not be made. The RP needs to be before the court in Lithuania so that the case can proceed and to provide samples of handwriting. I reject the submissions made by the defence in this regard and see no bar to the RP's extradition."

16. In that passage he did not apply the statutory tests. It was for the requested person, the appellant, to establish that there were reasonable grounds to believe that a decision to charge or to try had not been made and that his absence from Lithuania was not the sole reason for that failure. I will explain in a moment why I insert "was" for "is" in the statutory language. If he did that, it was then for the requesting authority to prove to the criminal standard that either they had made a decision to charge and try or that his absence from their territory was the sole reason for their failure to do either or both. Unfortunately, the District Judge conflated the two tests and substituted one which is not to be found in the statute, namely whether or not the appellant had himself proved, presumably on balance of probabilities, that the Lithuanian authorities had not charged or had not made a decision to charge or try, and that his absence from the territory was not the sole reason for that failure. Accordingly it is necessary because of that error for me to consider the matter afresh.
17. Section 12A undoubtedly potentially creates difficulties for civil law criminal justice systems. Whereas in common law systems a criminal prosecution is almost always preceded by a charge, that is to say the formal accusation outside a court to a suspect that he is guilty of the relevant criminal offence, some civil law systems do not follow that process. It seems that the Lithuanian criminal procedure code contains no provision for what would be recognised by a common lawyer as a charge. It contains a provision for recognising someone as a suspect at the investigation stage and for interviewing and trying him. Read with the spectacles of the common lawyer and interpreted strictly, section 12A would therefore make it in practice impossible for some civil law systems ever to mount a successful request for the extradition of an individual on an accusation warrant. Parliament cannot have intended that. The explanatory notes, paragraph 463, explain that "the courts have interpreted the provisions in the 2003 Act in a cosmopolitan way" mindful of the differences in criminal procedure in other member states and it is anticipated that the courts will apply the same approach to the interpretation of section 12A and, in particular, the concepts of "decision to charge" and "decision to try".
18. I raised in the course of argument the possibility that the Lithuanian decision to recognise the appellant as a suspect in the investigation was sufficiently close to the concept of charge interpreted in the cosmopolitan way to amount to the step which Parliament had in mind when it used the word "charge".
19. Mr Sternberg, for the requesting judicial authority, in the absence of detailed explanation of Lithuanian law on the subject, which may or may not be required for another day, does not seek a ruling to that effect. Ms Townshend submits that the nearest equivalent to what would be recognised as a charge in a common law system is the commencement of the judicial proceedings, in other words, the second stage of the Lithuanian proceedings as explained by the further information.
20. I am content to proceed on the basis that Ms Townshend's submission is correct without deciding that it is. It seems to me that Parliament has created considerable difficulties for the courts in understanding what the effect of section 12A is and more detailed explanation must await a case in which full argument is deployed, perhaps on the basis of fuller evidence than is available in this case.
21. A second potential point of difficulty is the use of the present tense in subsections 12A(1)(ii) and (b)(ii). "The person's absence from the category 1 territory is not the sole reason for that failure." Given that the "failure" was the failure to decide to charge or to try, it seems to me that that question can, and perhaps must, on facts such as these be addressed as at the date on which the warrant was issued by the requesting judicial authority. The use of the present tense is not necessarily indicative of the need to ask and answer that question by reference to circumstances as they exist at the date of the extradition hearing, although I can envisage circumstances in which it may be. It is not necessary, for present purposes, to attempt to resolve this difficulty. I will consider the issue at both notional dates - the issue of the warrant and the extradition hearing.
22. For this appellant to satisfy the court that there were reasonable grounds to believe that the sole reason for the failure to charge him or to try him before the issue of the warrant or by the time of the extradition hearing was not his absence from the territory of Lithuania, he would have to show that there were reasonable grounds to believe that. It is not necessary that he should put in his own evidence: if it is apparent on the face of the documents relied on by the requesting judicial authority that can in principle suffice. For example, it could be perfectly clear, as Ms Townshend submits, that he was only wanted for questioning, in which case it would be obvious that a decision to charge or to try had not been taken because the stage at which those decisions might be taken had not been reached, and if he could be questioned under the mutual legal assistance arrangements, then he could be questioned in any event.
23. If, however, the situation is that the only reason why he has not been charged in the cosmopolitan sense or tried is that he was and is absent from Lithuania because a necessary step in Lithuanian criminal procedure could not be taken without him being present, for example, to be questioned, then the burden is on him to show that that necessary step, questioning, could be taken without him being present in Lithuania. That is apparent from the observations of the court in Kandola v Generalstaatwaltschaft, Frankfurt, Germany [2015] EWHC 619 (Admin) in paragraph 33:

i. "How is the DJ to tackle the question, at the 'reasonable grounds for believing' stage, of whether the sole reason for the lack of decisions to charge and/or try is the absence of the requested person from the category one territory? Again, it must be for the requested person at this stage to provide sufficient evidence to raise a case that his absence from the category one territory is not the sole reason for the lack of decisions to charge and try him..."

24. In this case the appellant produced a lengthy witness statement and gave oral evidence but at no stage did he give any evidence as to his willingness to be questioned under mutual legal assistance provisions or to demonstrate that the Lithuanian authorities could have proceeded to "charge" and try him without his being present at the preliminary stages in Lithuania. Questions, for example, of whether or not he posed an absconding risk were not addressed at all. If, as is the case, the burden is on him of showing reasonable grounds, as Kandola indicates, then he has not discharged it. Subject to a further argument which I will now address, on that narrow ground I would dismiss his appeal.
25. The further ground which I need to address is Ms Townshend's submission that, on the face of the information provided by the requesting judicial authority, they do not have sufficient evidence to charge or try him. Hence, she submits, the need for him to be interviewed and the need for samples of his handwriting to be obtained as well. The explanation given by the requesting judicial authority that "There is no possibility to provide the court with the pre-trial investigation material for further consideration without conducting the interview of [the appellant]" demonstrates that an interview, possibly under court supervision or by a judge, is a necessary part of Lithuanian criminal procedure before judicial proceedings against a person can formally begin.
26. The detail of the charges provided in the warrant itself and the explanation of the material which the prosecuting authority has obtained to found its case against the appellant demonstrates that they have got well beyond the stage of merely suspecting that he might be guilty of the offences of which he is accused. The appellant has not satisfied me that there are reasonable grounds for believing that the evidence so far obtained against him is insufficient to try him. That would be so even if a sample of his handwriting is not available. The material described in the warrant and in the further information gives reasonable ground to believe that there is ample evidence upon which to prosecute him even without a sample of his handwriting. No doubt it is desirable, both from his own point of view if he is innocent of the accusations, and from the point of view of the prosecutor if he is not, to obtain a sample of this handwriting to compare with the documents that they have. But I do not understand from the material provided by the requesting judicial authority that that is in any way essential to his prosecution.
27. Accordingly, for those unfortunately rather lengthy reasons, I am satisfied that if the District Judge has asked himself the right question and answered it in the statutory manner, rather than in the manner that he did, he would inevitably have reached the conclusion that reasonable grounds had not been shown and accordingly the stage at which the prosecutor was required to prove to the criminal standard that his absence was the sole reason for not charging or trying him was not reached. For those reasons this appeal is dismissed.