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 February 2015

1. MR JUSTICE SUPPERSTONE: The appellant appeals against the decision of District Judge Coleman, made on 1 December 2014 at the Westminster Magistrates' Court, ordering the appellant's extradition to Lithuania on a conviction European Arrest Warrant issued by the Klaipeda Circuit Court in Lithuania on 9 July 2014 and certified by the NCA on 15 July 2014. The appellant's extradition is sought to serve a sentence of imprisonment of 1 year, 8 months and 16 days in respect of an offence of blackmail.
2. The appellant raises two grounds of appeal: first, that his extradition would be an abuse of process; and second, that it would be a disproportionate interference with his and his family's Article 8 rights. As to the first, Mr Smith, for the appellant, submits that it would be an abuse of process to extradite the appellant since, pursuant to the Lithuanian Statute of Limitations, as set out in box F of the EAW, the judgment would be unenforceable: given that the appellant was originally arrested on 4 February, the 3-year time limit will have expired. Mr Smith submits that the continuation of the extradition request beyond the end of the time limit is conduct which is clearly capable of amounting to an abuse, as it would be oppressive to remove the appellant from his family in the UK in order to be brought before the Lithuanian court only to be released due to the expiry of the statutory time limit.
3. Mr Smith submits that it appears from the face of the EAW that there is a 3-year time limit that started on 12 February 2012 and ended on 12 February 2015. We are now 9 February 2015. The court must satisfy itself that the appellant will not simply be extradited to Lithuania to be told judgment would not be executed. That would be an abuse of process. Applying the Tollman procedure, if there are reasonable grounds for believing the time limit may have run out, this court needs to embark on a procedure for establishing whether that is so or not.
4. First, a preliminary point as to whether this issue of abuse which was not raised before the lower court may be taken on this appeal. I am satisfied that this new point may be raised for the reasons given by Mr Smith, albeit that, as Ms Brown observes, the point could have been taken below. The substantive point made by Ms Brown is that there is no evidence before the court that "arrest" under the relevant section in the Lithuanian Statute includes arrest pursuant to an EAW. She submits, and I accept, that as a domestic statute it is more likely to refer to arrest in Lithuania rather than pursuant to an EAW. But it is not for me to determine the point.
5. The appellant will be able to advance this argument upon his return to Lithuania. I consider, as Davies J, as he then was, did in Filipek v Provincial Court In Lublin Poland [2011] EWHC 506 (Admin), following Battistini v Italy [2009] EWHC 3536 (Admin), that it is not a matter for the English courts to rule on the rights or wrongs of a limitation argument such as this, except in the limited circumstances identified in the authorities to which I have been referred. In Filipek it was a matter for the Polish courts; in the present case, in my view, it is matter for the Lithuanian courts. I am reinforced in this view by the observations of Foskett J at paragraph 12 in his judgment in Mohammed v The Court of Appeal, Paris [2013] EWHC 1768 (Admin) and in the observations of Pitchford LJ at paragraph 7 in Bendik v Judicial Authority of Slovakia [2010] EWHC 1821 (Admin).
6. On the Article 8 ground, Mr Smith submits that it would be disproportionate to allow extradition in this case. Factors that should be taken into account when undertaking the Article 8 proportionality exercise include, he submits, the following: first, that the judgment will be unenforceable (I have dealt with that); secondly, the offences are not of the most serious type since they are not violent or sexual offences; third, they were committed seven years ago; fourth, the impact of extradition on the appellant will be great (he is 31 years of age, moved to the UK with his family in August 2010 and he has a new life here); fifth, the impact of extradition on his family will be severe. He has been married to his wife for seven years and they have two young children. He is very involved in their everyday lives.
7. The first point made by Ms Brown is that the appellant was present at the proceedings in Lithuania and is therefore a fugitive from justice. Any delay must be considered in that context. She observes, and I agree, that the offences are plainly not trivial: they would be likely to attract a sentence of immediate custody in this jurisdiction. She accepts that a degree of hardship and upset will be caused to the appellant's partner and children by surrender, but submits that there are no compelling features that will militate against the public interest in the UK giving effect to its Treaty obligations. Ms Brown observes that the chances of the appellant's continuous residence in this jurisdiction are precarious in any event, an order having been made for his deportation as a result of a conviction for murder in Lithuania in 2001. That order, I think, was made by the Home Office in August 2014.
8. In my judgment, there is no basis for interfering with the finding made by the district judge on the evidence before him. He had proper regard to the factors in favour of extradition and factors which would militate against extradition when conducting the Article 8 balancing exercise.
9. For the reasons that I have given, this appeal is dismissed.
10. MR SMITH: Might I ask that costs are assessed in the usual way?
11. MR JUSTICE SUPPERSTONE: Yes, certainly.