England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2017

Mr Justice Garnham:

Introduction

1. This is an appeal, brought pursuant to section 26 of the Extradition Act 2003 ("the 2003 Act"), by Mr Eldaras Sutas against the decision of Deputy Senior District Judge Arbuthnot, dated 9 September 2016, ordering his extradition to Lithuania pursuant to an accusation European Arrest Warrant ("EAW") issued on 10 September 2014 and certified by the National Crime Agency on 9 February 2015.
2. On 11 November 2016 Mr Justice Supperstone granted the Appellant permission to appeal.

The Facts

3. The EAW refers to a single accusation of theft. It is alleged that in March 2009 the Appellant took a BMW 730 motorcar for a test drive. The value of the vehicle was approximately £25,773. It is alleged that, thereafter, the Appellant failed to return the vehicle, which was subsequently found in Russia. The alleged conduct is said to be an offence under article 178(3) of the criminal code of Lithuania and it is punishable by up to 8 years imprisonment.
4. The Appellant denies that he had any involvement with the offence. He says that he knew nothing about it until he was arrested on the EAW. He has never been interviewed in relation to the offence although he has consistently expressed his willingness to be interviewed by the Lithuanian authorities in the hope that he can set the record straight and clear his name.
5. It is not suggested by the Respondent State that the Appellant is a fugitive. It is accepted that he was under no obligation to notify the State of his whereabouts and he was free to leave Lithuania when he did, by which time according to the Lithuanian authorities, the criminal proceedings had probably not been started.
6. The Appellant asserts that he was previously associated with a Lithuanian gang known as the "Agurkiniai Gang", a group that operates in the town of Kaunas, and as well as in the UK and across Europe. He says that having fallen out with members of the group in the UK, he attempted to disassociate himself from the gang. On 14 March 2014 gang members visited the Appellant's home, forced an entry and attacked his wife. His children and his mother were present at the house at the time.
7. Following those events, the Appellant moved with his family away from the area and sought police assistance. The Appellant and members of his family were due to testify in the trial of one of the gang members responsible for the attack. The officer in the case attended Westminster Magistrates Court in May 2016 to explain that the Appellant would be a crucial witness in the trial with regard to motive and identification. The trial came on for hearing at Lincoln Crown Court in December 2016, nearly three months after the date of the extradition hearing. On the second day of the trial the Defendant pleaded guilty to having attacked the Appellant's wife and was sentenced to 51 weeks imprisonment. By the date of the trial he had served a lengthy period on remand and, as a result, he was released immediately.
8. The Appellant also says that he was assisting police with intelligence and other enquiries in relation to the activity of the gang. He says that, following the attack on their home, he and his family have been assessed by the police as being at risk of reprisals. The police have assisted them to move home and they are subject to various protective measures at home. The Appellant says he has received death threats since the attack and has been the subject of attempted bribery to dissuade him from giving evidence. The Appellant says that he fears returning to Lithuania because of the possibility of reprisals by gang members in prison. He says that, in addition, he is very anxious to protect his wife and children who have been traumatized by these events and are in fear of further attack. It is said that further risk assessments in respect of the family are being prepared by the police.
9. On 4 August 2015 the Appellant made a formal request to be interviewed by the Lithuanian authorities under section 21B of the 2003 Act. Lithuania consented to the request and then made a request to the UK for mutual legal assistance ("MLA") in order to interview the Appellant. It is said that the UK Central Authority (a body within the Home Office's Judicial Cooperation Unit) took eight months to respond to Lithuania's request, before refusing it. The CPS summarized the Home Office's response as follows:

"The MLA request of [Lithuania] has now been processed. The UKCA have agreed to carry out part of that request but, importantly, not the request to facilitate the 21B agreement between the parties. This is because it is UKCA's position that section 21B does not envisage the use of MLA but direct contact between the parties, and that MLA cannot be used for it because there is a separate mechanism under the [Extradition Act] 2003. It was accepted that were this request made in the absence of an extradition request, it would have been carried out. "

10. The CPS then wrote to Lithuania to inform it of the position. The Lithuanian Prosecutor General office responded stating that it no longer wished to interview the Appellant.

The Statutory Scheme

11. Section 21A and 21B are material to these proceedings. Section 21A provides:

(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—

(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(b) whether the extradition would be disproportionate.

(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offences (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

(4) The judge must order D's discharge if the judge makes one or both of these decisions—

(a) that the extradition would not be compatible with the Convention rights;

(b) that the extradition would be disproportionate.

(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—

(a) that the extradition would be compatible with the Convention rights;

(b) that the extradition would not be disproportionate…

12. Section 21B provides as follows :

(1) This section applies if—

(a) a Part 1 warrant is issued which contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory), and

(b) at any time before or in the extradition hearing, the appropriate judge is informed that a request under subsection (2) or (3) has been made.

(2) A request under this subsection is a request by a judicial authority of the category 1 territory in which the warrant is issued ("the requesting territory")—

(a) that the person in respect of whom the warrant is issued be temporarily transferred to the requesting territory, or

(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.

(3) A request under this subsection is a request by the person in respect of whom the warrant is issued—

(a) to be temporarily transferred to the requesting territory, or

(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.

(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person (in the case of a request under subsection (2)) or the authority by which the warrant is issued (in the case of a request under subsection (3)) to consider whether to consent to the request.

An adjournment under this subsection must not be for more than 7 days.

(5) If the person or authority consents to the request, the judge must—

(a) make whatever orders and directions seem appropriate for giving effect to the request;

(b) order further proceedings in respect of the extradition to be adjourned for however long seems necessary to enable the orders and directions to be carried out.

(6) If the request, or consent to the request, is withdrawn before effect (or full effect) has been given to it—

(a) no steps (or further steps) may be taken to give effect to the request;

(b) the judge may make whatever further orders and directions seem appropriate (including an order superseding one made under subsection (5)(b))…"

13. Section 26 entitles a person affected to bring an appeal to the High Court against an order. Section 27 deals with the powers of this court on an appeal.

The Arguments

14. The Appellant advances 2 grounds of appeal.
15. First, he says that pursuant to section 21A(1)(b), the District Judge ought to have decided differently the question whether extradition was proportionate and had she done so she would have been required to order the Appellant's discharge. Second, he says that pursuant to section 21A(1)(a), the District Judge ought to have decided the question of whether extradition was compatible with the rights of the Appellant and his family under Article 8 ECHR differently and had she done so she would have been required to order discharge.
16. As to the first ground, Ms Katie O'Byrne, for the appellant, points out what is common ground, namely that section 21A proportionality imposes a separate and different standard to Article 8 proportionality. Section 21A proportionality is restricted to consideration of the seriousness of the alleged conduct, the likely penalty that would be imposed if the Appellant was found guilty and the possibility of the relevant authorities taking less coercive measures. In the present case, the District Judge found that there was "no possibility" of less coercive measures.
17. Ms O'Byrne argues that, on the contrary, there had been every possibility of such measures being employed, but the Respondent State changed its mind and decided not to use them. She says that the relevant measure (in this case an interview) could and should have been used pursuant to a section 21B agreement prior to an extradition request under section 21A. She observes that in making her decision on this point the District Judge relied on Lithuania's assertion on 7 May 2015 that "all milder measures" had been exploited before pursuing extradition. Ms O'Byrne argues that that was demonstrably not the case and that Lithuania requested assistance to interview the Appellant after that date, on 4 August 2015.
18. As to the second ground – article 8 - the Appellant argues that the District Judge failed to take into account a number of relevant factors. He says that the District Judge erred in relation to the Appellant's knowledge of the prosecution; failed to take into account Police evidence; failed to take into account evidence concerning the Appellant's role in police investigations; failed to take into account the effect of the domestic trial and that she reached a conclusion on article 8 that was not properly open to her.
19. In response, Mr James Stansfeld, for Lithuania, argues that the effect of the decision of the Divisional Court in Puceviciene v Lithuania [2016] 1 WLR 4937 is that "less coercive measures" under s21A(3) (c) do not include MLA. It is argued that when the proper meaning of "less coercive measure" under the Act is considered against the evidence in this case it is apparent that there is no merit in the first ground of appeal and that Judge Arbuthnot in the decision she reached on that issue.
20. Furthermore, says Mr Stansfeld, even if the court was of the view that there were less coercive measures that could have been deployed, that would be just one of three factors to be considered in the proportionally assessment. It is argued that in those circumstances the District Judge's decision that extradition is not disproportionate cannot be said to be wrong.
21. As to the second ground of appeal, Mr Stansfeld points to the evidence of the Respondent's attempts to summon the Appellant to Lithuania and evidence as to the fact that the Appellant's mother was spoken to in Lithuania during attempts to establish her son's whereabouts. Mr Stansfeld says the criminal proceedings have now concluded and, in fact, the family were not required to give evidence at the trial, so that any error in not considering the need of the Appellant to remain in the UK to testify is now immaterial.
22. It is argued that the Appellant's submissions as to a failure to take into account evidence concerning Mr Sutas's role in police investigations is founded on a misunderstanding of the judgment. And in any event an error on this topic would not undermine the Judge's conclusions. It is disputed that the District Judge failed to have regard to the effect of the domestic trials but asserted that in any event those proceedings have now come to an end.

Discussion

Ground 1 – Proportionality under Section 21A

23. Central to the first ground of challenge is the meaning of section 21A(3) of the 2003 Act. It was common ground between the parties that the District Judge was entitled (if not obliged) to have regard to the seriousness of the conduct alleged and the likely penalty. She did indeed have regard to those two features, concluding that while not the most serious of offences this was still a serious theft, involving as it did the theft of a £25,000 motor car. She also had regard to the likely penalty. In paragraph 51 of her judgment, she said that, in England and Wales, the sentencing guidelines suggest a sentence of between 6 months 2 years imprisonment and that in Lithuania the offence attracted a maximum sentence of 8 years imprisonment. She found that the likely penalty in Lithuania would be imprisonment.
24. She then had regard to the third factor identified in section 21A(3)(c). She held at paragraph 52:

"The recent case of Puceviciene and others v Lithuania…[2016] EWHC 1862 held that MLA cannot be used as a less coercive measure under section 21A(3)(c). It is better for it to be used under section 21B. The less coervice measures in this case would be a summons or a voluntary return neither of which is to appeal to the RP. I find too that he was given the option to answer a summons in 2010 and refused to answer it. There was an offer to interview him in August 2015 made in the context of the already considerable delays in the extradition proceedings, unfortunately the considerations about whether MLA could be used meant that more time passed. I find that there is no possibility now of the JA taking measures that would be less coercive than extradition. They have said they do not want to interview him now. In further information dated 7 May 2015, the JA confirmed that the EAW was only issued after "all other milder measures (request for assistance by addressing the Interpol group of Great Britain, two mutual assistance requests sent to the UK law enforcement authorities) were exploited in order to summon the suspected person to the proceedings."

25. The District Judge said that having considered the three factors she did not find that the extradition would be disproportionate under section 21A(1)(b).
26. Ms O'Byrne argues that section 21A(3)(c) deliberately leaves undefined the phrase "measures which would be less coercive than the extradition of D". The term is a relative, non-exclusionary one which should not be defined "too tightly". She disputes the District Judge's assertion that the relevant jurisprudence concludes that MLA cannot be used as a less coercive measure.
27. Mr Stansfeld's argument is to precisely contrary effect. He says the District Judge was right and the authorities establish that MLA is not available under s21A (3)(c).
28. There are two relevant decisions of the Divisional Court in this regard. First, in Mirazewski v Poland [2015] 1 WLR 3929 Pitchford LJ said this at paragraphs 40-41:

"Section 21A(3)(c) – less coercive measures

40 Section 21B of the Extradition Act 2003, inserted by section 159 of the Anti-Social Behaviour, Crime and Policing Act 2014 , enables either the requesting state or the requested person to apply to the court for the requested person's return to the requesting state temporarily or for communication to take place between the parties and their representatives. Section 21A(3)(c) is concerned with an examination whether less coercive measures of securing the requested person's attendance in the court of the requesting state may be available and appropriate. His attendance may be needed in pre-trial proceedings that could be conducted through a video link, the telephone or mutual legal assistance. The requested person may undertake to attend on issue of a summons or on bail under the Euro Bail scheme (if and when the scheme is in force) or the judge may be satisfied that the requested person will attend voluntarily and that extradition is not required.

41 It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligation under Article 5 (3) ECHR , already considered the taking of less coercive measures. I accept the submission made by Mr Summers QC that there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances. Where the requested person has left the requesting state with knowledge of his obligations to the requesting state's authorities but in breach of them, it seems to me unlikely that the judge will find less coercive methods appropriate. On the other hand, as the Scott Baker report recognised at paragraph 5.153 there may be occasions when the less coercive procedure is appropriate. If the requested person fails to respond to those alternative measures the issue of a further warrant and extradition could hardly be resisted."

29. A differently constituted Divisional Court in Puceviciene v Lithuania [2016] EWHC 1862 (Admin) considered the effect of that passage. At paragraph 76-81, Lord Thomas LCJ said this:

76 Fourth, Parliament did legislate in a way which enables MLA to be used in connection with an EAW, not in s.12A , but in s.21B . That is a strong indication that MLA should be considered only through that mechanism, absent the sort of breakdown in trust in answers to questions and requests which occurred in Arranz. The provisions operate quite differently. S.12A provides a bar to extradition; it is one of the bars in s.11 ; therefore, failure in relation to the consideration of MLA, if relevant under s.12A , would bar extradition.

…

79 S.21A also arises for consideration. The structure of the Act requires the judge to consider whether any of the bars operate (see s.12 to s.19A ) and only if they do not to consider s.21A . This section provides the means through which the rights of a requested person guaranteed by the European Convention on Human Rights may be protected ( s.21A(1)(a) ). It also requires the judge to discharge the requested person if his extradition would be disproportionate in the limited sense described by the section ( s.21A(1)(b) and (3) ). One of the factors which the court must consider is the possibility of "less coercive measures" ( s.21A(3)(c) ) being taken by the requesting state. If MLA were relevant to s.12A , MLA could only be considered as a less coercive measure under s.21A if the failure to use MLA had not barred extradition under s.12A .

80 S.21A was considered in Miraszewski and others v District Court in Torun, Poland and another [2014] EWHC 4261 (Admin) . The European Council Handbook, addressing concerns about the disproportionate use of the EAW by some Member States, and notably Poland, suggests that the "less coercive instruments" of MLA should be used where possible; [22]-[23]. At [40] Pitchford LJ, with whom Collins J agreed, thought that this might cover MLA for pre-trial proceedings. It is difficult to square that with the statutory effect of s.21A which is that, if the less coercive measure of MLA should have been used, extradition is disproportionate, barred, and the requested person must be discharged. The requested person cannot be compelled to participate in the interview which the requesting judicial authority may thereafter seek under MLA but obviously without any EAW to back it up. If the requested person refuses to participate, or the interview leaves the requesting judicial authority wanting to pursue extradition, it would then have to issue a further EAW, to which this time round the use of MLA as a less coercive measure would be no answer. That is a very convoluted way to achieve what could be achieved much more simply under s.21B .

81 It is only under s.21B that the decision on the EAW can be delayed while the MLA process takes place. S.21B is therefore the route to the use of MLA to advance the criminal process through interview before extradition so as to reduce pre-trial delay after extradition, or perhaps as a means of changing the mind of the requesting judicial authority on the decision which has already been made to charge and try. It is likely that s.21A(3)(c) was intended, as the Handbook implies, to cover cases where the supposed "accused" was no more than wanted for questioning as a mere suspect. Although that implies that the EAW itself ought to have been found invalid if the requested person was not even an "accused", the need for that word, and others to be given a "cosmopolitan" interpretation, is spelt out in Ali v Public Prosecutor of Bavaria [2014] EWHC 3881 (Admin) , [14–21], and may affect what could be achieved with its use." (my emphasis)

30. It seems to me clear that what the Lord Chief Justice intended when he said, at paragraph 80, that it was "difficult to square" the idea that MLA might be included in the concept of "less coercive instruments" with the statutory effect of section 21A, was that mutual legal assistance could not properly be seen as a less coercive measure within section 21A. If that is right, the District Judge was entirely correct when she held, at paragraph 52, that "MLA cannot be used as a less coercive measure under section 21A(3)(c)".
31. Although I must be careful not to construe the Divisional Court judgment as if it were a trust deed or a statute, that interpretation seems to me consistent with what the Lord Chief Justice said in paragraph 81. Section 21B, he said, "is therefore the route to the use of MLA to advance the criminal process through interview for extradition..." (emphasis added). In my view, the use of the definite, rather than the indefinite article, was deliberate. That seems to me enough to dispose of this point.
32. It is right to say that the Appellant's attempt to use MLA as a means of informing the Lithuanian authorities of his response to the charge he faced were frustrated when the UKCA declined to assist. The assertion by the UKCA that "MLA cannot be used" under section 21B seems to be frankly erroneous. The Divisional Court in Puceviciene made it clear, in the passage from paragraph 81 to which I have referred above, that section 21B is the appropriate route to the use of MLA in extradition proceedings. The Appellant contemplated judicial review proceedings against the Home Office in respect of that stance but, apparently, those proceedings have not been pursued.
33. For whatever reason, the Lithuanian authorities' response to the delay has been to withdraw their consent to MLA. The District Judge was required to carry out her assessment on the basis of the facts as they then presented themselves to her. She had to consider the possibility of the relevant foreign authorities taking measures which would be "less coercive" than extradition. She had to do that on the information then available to her. As of the date of the hearing, she was right to conclude that there was no prospect of the Lithuanian authorities taking any other measures.
34. In any event, the possibility of other less coercive measures was only one of three matters relevant to the decision whether extradition would be disproportionate under s21A(2). The other two factors, the seriousness of the conduct alleged and the likely penalty, each pointed strongly towards extradition. In my judgment, even if MLA was a potential less coercive measure, and even if Lithuania had indicted a willingness to pursue MLA at the time of the hearing, nonetheless a District Judge would be entirely justified in concluding that extradition was appropriate. Mutual legal assistance would facilitate discussion between the Lithuanian authorities and the Appellant. They would provide the Appellant with a means of putting his case to the Lithuanian authorities, but it seems to me unlikely in the extreme that he would succeed in persuading the authorities simply to abandon the criminal proceedings against him. It is evident that they had investigated the matter to some extent and it would have hardly been a surprise to them if the Defendant denied he was guilty, and there was little beyond bare denial that the Defendant could say in response to the warrant. In all those circumstances were the task to fall to me, instead of the District Judge, I would have concluded that the extradition of the Appellant would not be disproportionate even if MLA was an available less coercive measure.
35. For all those reasons this first ground of appeal must fail.

Ground 2 – Article 8

36. The proper approach for this court to take on appeals in Article 8 cases was set out by the Divisional Court in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin). At paragraph 84 Lord Thomas LCJ said:

"The single question therefore for the appellate court is whether or not the District Judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said (in Re B (A child)(SC)[2013] 1 WLR 1911) that the appeal can be allowed. Findings of fact especially if evidence has been heard, must ordinarily be respected. In answering the question whether the District Judge, in light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the District Judge's reasons for the proportionality decision must be considered with care, errors or omissions do not of themselves necessary show that the decision on proportionality itself was wrong. "

37. First, it is argued here that the District Judge erred in relation to the Appellant's knowledge of the prosecution in Lithuania. In my judgment, the District Judge was entitled to rely on the evidence from the Respondent that attempts had been made to summons the Appellant to Lithuania. She heard the Appellant on this issue and indicated at paragraph 22 that she did not believe his account.
38. In any event, her conclusion that the Appellant had been aware of those proceedings since 2010 was not based solely on the fact of the summons. The letter from the Respondent also explained that the Appellant's mother was spoken to in Lithuania when attempts were being made to establish the Appellant's whereabouts. They said she told them that he was in London with his family. As is apparent from paragraph 36 of her judgment, the District Judge relied on the fact that the Appellant said he spoke to his mother ten times a day and saw her every two days. In my judgment, the District Judge was entitled to conclude that she must have told him that the police were looking for him. That conclusion also fits with the fact that the Appellant never returned to Lithuania after 2010. In those circumstances, I have no hesitation in concluding that there was ample evidence upon which the District Judge could conclude that the Appellant had known about the Lithuanian proceedings since 2010.
39. Second, it is argued that the District Judge failed to take into account police evidence as to the need for the Appellant's family to give evidence at the criminal trial of the man accused of attacking Mrs Sutas. But, in my judgment it is clear that she did have regard to that evidence. At paragraph 58 she said

"Mrs Abasova and the two children are witnesses in the crown court and although they are now living many miles from Lincoln, they would feel the strain of giving evidence in relation to what happened to them now many months ago. This strain will be increased by the absence of the RP".

40. In any event, it is now known that the family did not have to give evidence in the criminal trial because the Defendant pleaded guilty. Accordingly were I to retake the article 8 decision on the basis that the District Judge erred in her approach to it, I could not legitimately have regard to that factor.
41. Third, it is said that the District Judge failed to take into account evidence concerning Mr Sutas's role in the police investigation. At paragraph 17 the District Judge said this ;

"The RP goes on to say that he started to co-operate with the police and said that he had agreed to give evidence in relation to the attack but also to give evidence of the gang's activities across the United Kingdom. There is no supporting evidence from the Police or the Crown Prosecution Service to confirm that." (emphasis added)

42. I accept the submission of Mr Stansfeld that it is tolerably clear that the word "that" in that passage refers to the Appellant's account that he had agreed to give evidence of the gang's activities across the United Kingdom, rather than evidence relating to the attack itself. It appears there was no dispute that he was to give evidence of the attack itself.
43. Finally on this topic, it is said that the District Judge failed to take into account the effect of the domestic trial under article 8. That argument is unsupportable given the passage from paragraph 58 to which I have already referred. That it was expressly considered in reaching her conclusion on article 8 is apparent from two sentences in paragraph 59:

"He and his family will all be giving evidence at some point at the crown court in relation to what was a really unpleasant incident in Mrs Abasova's home. That will be a frightening experience for the family even with the support of witness support and special measures."

44. It follows that I reject all of the Appellant's arguments that the District Judge failed to give proper account to relevant evidence in this case. Hers was a clear and comprehensive judgment. I have no hesitation in concluding that her decision is not vulnerable to challenge. In fact I would go further; in my view she was plainly correct.

Conclusion

45. In those circumstances, this appeal must fail.