QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE THIRLWALL DBE
| VYGANDAS PAKSTYS
|- and -
|PROSECUTOR GENERAL'S OFFICE OF THE REPUBLIC OF LITHUANIA
Mr Nicholas Hearn (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 9th November 2016
Crown Copyright ©
MRS JUSTICE THIRLWALL:
The following appears at the top of the first page
"I request that the person mentioned below be arrested and surrendered for the purposes of conducting criminal prosecution."
Box B records that the EAW is based on a "Ruling of Siauliai District Court dated 12.3.13." The type of judgment is "on coercive measures – the arrest (pre-trial investigation) ..."
Box C records that the maximum possible sentence is 10 years. The alleged offending is set out in Box E as follows:
"Vygandas Pakstys, on 22/11/2012, the exact time has not been established by the pre-trial investigation, in Daugeilu str.,..town of Siauliai region, acting in a group of associates with Ramute Kulvelyte, aiming to sell or otherwise distribute narcotic substances, acquired from a not established person a large quantity – 565.67 g of narcotic substances – cannabis (and its parts) which was possessed in and transported by car VW, plate no ERP 795, belonging to Dainius Peikevicius, until Ramute Kulvelyte dropped the package with 565.67g of narcotic substances (cannabis and its parts) through the car window at 1:00pm on 22/11/2012 in Siauliai town, near house no 75 in Architektu street, where police officers, who followed the car, seized the package.
Vygandas Pakstys is suspected of having committed an offence under Article 260(2) of the Lithuanian Criminal Code."
The offence is the equivalent in the law of this jurisdiction to possession of a controlled drug with intent to supply.
i) the Appellant was not notified that he was under suspicion of involvement in the offence;
ii) the Appellant had not been questioned because he "left the crime scene and hid himself"; and
iii) the outcome of the officers' case cannot have any influence on a decision to refer the material of the criminal case …to court."
"the defendant's account is entirely implausible. There is no doubt that for a considerable time he has been using a false name, certainly in any dealings with the police. He has a conviction [in the UK] in a false name and a false date of birth. He was driving a car registered in the name of another person, and insured in that name. Moreover, he left Lithuania shortly after the matter alleged against him."
The judge also relied on the evidence of the officer who arrested the appellant in November 2015 which was:
"She told me her boyfriend's name was Pakstys Vygandas and that he had been in trouble with the police in Lithuania for drugs offences and had fled to the UK. She stated that the police officers involved in his case had since been convicted of corruption and had been sent to prison and that her boyfriend was innocent"
Ms Steponaviciutie disputed this account but DJ Riddle rejected her evidence which he described as unbelievable.
i) that there was nothing in the warrant to suggest that the decision to charge or prosecute ha[d] not been taken, or if it ha[d] not that the defendant's absence in this jurisdiction was not the reason.
ii) in light of the further information in the letter of 13 January 2016 the Senior District Judge said,
"it appears to me that there are reasonable grounds for believing that the competent authorities in Lithuania have not made a decision to charge or have not made a decision to try (or have made neither of those decisions) in the case of VP".
He concluded that there were reasonable grounds for believing that the sole reason for the failure to charge or try was the appellant's absence from Lithuania. He considered that extradition would not be disproportionate, nor would it be an abuse of the court's process."
"i) the decisions to prosecute have not been taken and the Appellant's absence is not the sole reason for the failure to take those decisions, contrary to section 12A of the Extradition Act 2003 ("EA")
ii) Extradition would be disproportionate, contrary to section 21A (1)(b) EA
iii) Extradition would be an abuse of the court's process."
A fourth ground was abandoned in the light of the decision of the Supreme Court in Goluchowski v Poland  UKSC 36.
"(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if);
(a) it appears to the appropriate judge that there are reasonable grounds 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) the person's absence from the category 1 territory is not the sole reason for that failure,
(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
(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."
"provides for a new bar to extradition in Part 1 cases on the grounds of 'absence of prosecution decision,' this is intended to ensure that a case is sufficiently advanced in the issuing State (that is, there is a clear intention to bring the person to trial) before extradition can occur, so that people do not spend potentially long periods in pre-trial detention following their extradition, whilst the issuing State continues to investigate the offence."
"In determining the best approach to ascertaining whether a decision to charge and a decision to try has been made, we must have regard to:
i) the background to the insertion of the provision into the Act …
ii) The use of the terms 'decision to charge' and 'decision to try' plainly does not imply that the case must be trial ready.
a) We have referred at paragraph 40, by way of example, to the position in England and Wales, where a decision to charge and the decision to try (by, for example, the fixing of a trial date within a few days of an arrest in an indictable only case) can be taken at a very early stage of the proceedings whilst the investigation is still underway and it is known that the trial might be at some considerable time away. This is common in complex cases where the court needs to set a timetable to trial.
b) it is necessary to respect, under the principle of mutual confidence which underpins the Framework Decision, the responsibilities of the judiciaries in member States of the EU to bring cases as expeditiously as possible to trial after the decision to charge and try has been made. It is not for the courts of England and Wales to supervise under the guise of s12A the way in which such courts progress the cases before them.
iii) The term used in the section is 'a decision to charge' not 'charged'. This plainly implies that the focus should be on the word 'decision' not any formal step.
iii) It is often the case that in England and Wales a decision is made to charge a person and to try that person at a very early stage, where that person is a terrorist, leader of a gang or danger to the public It is therefore necessary to approach the meaning of s12A on the basis that Parliament must have had this factor in mind and been appreciative of the fact that the consequences of finding that there has been no decision to charge and no decision to try in the Member State where the crime was committed will be that the person detained or on bail under an EAW must be discharged.
v) The majority of persons detained or on bail subject to the EAW are sought (as these appeals all illustrate) by the prosecution authorities or courts of their own nation state. It cannot have been intended by parliament to make it easier for such persons to continue to reside in the UK or to make the task of progressing a prosecution more difficult.
vi) It is also important to emphasise that the real focus of s12A is always on whether there has been a decision to try. If there has been no decision to try, the question of whether there has been a decision to charge is irrelevant. If there has been a decision to try, a decision to charge will inevitably have been taken either earlier or at the same time as the decision to try. The words 'decision to charge' in reality add nothing to the achievement of the purposes, actual or supposed, of the Act or to its effect. They add nothing at either the 'reasonable grounds' stage or at the second stage where the burden lies on those representing the competent authority of the requesting state to prove that the decisions have been taken."
"Being convinced that there is sufficient data in the pre-trial investigation case proving the suspected person's guilt in commission of a criminal offence, prosecutor draws up an indictment…the stage of pre-trial investigation is over and the suspected person is qualified as an accused [defendant]."
Since there is no indictment here, Mr Hall submits that it must be the case that the prosecutor is not satisfied that there is sufficient evidence to justify it. I disagree. The letter makes no such suggestion and there is plainly evidence which would justify a charge.
(a) The seriousness of the conduct alleged to constitute the extradition offence;
(b) The likely penalty that would be imposed if the appellant was found guilty of the extradition offence;
(c) The possibility of the relevant authorities taking measures that would be less coercive than extradition.
Ground Three: Abuse of process
"The pre-trial investigation file contains service reports by chief Investigator R Pocius and senior investigator G Aina about the fact that on 22 November 2012 the police received intelligence information that Vygandas Pakstys … may be illegally disposing of narcotic substances and transporting them by car. In order to verify this information, the officer met the said car as soon as it entered Siauliai from the direction of Kelme Town".
To that may be added the newspaper information and the evidence given by the appellant about being harassed and finally the assertion contained in Further Information 3 that the outcome of the case in respect of two police officers "cannot have any influence on a (?the) decision to refer to court the material in Mr Pakstys's case."
"is to protect the integrity of the statutory scheme of the 2003 and the integrity of the EAW system, as well as to protect a requested person from oppression and unfair prejudice."
He was there summarising the discussions in R (Bermingham and Others) v Director of the Serious Fraud Office  2 WLR 635, Belbin v France  EWHC 149 and Italy v Barone  EWHC 3004.
"this necessarily includes deciding what evidence is admissible and what weight should be given in particular pieces of evidence, having regard to the way in which an investigation was carried out. It is for the trial court in the requesting state to find the facts about how statements were obtained which may go to admissibility of weight, both of which are matters for the court conducting the trial. It is the function of that court to decide whether evidence was improperly obtained, and if so what the consequences for the trial are. It is for the trial court to decide whether its own procedures have been breached".
I agree. In this case the courts of the requesting state will deal with all such matters and it is not for the courts of England and Wales to seek to police that process. That would be wholly contrary to Framework Decision.
Lord Justice Burnett: