Case No: CO/2124/2016
Neutral Citation Number: [2017] EWHC 47 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/01/2017

Before:

LORD JUSTICE BURNETT
and
MRS JUSTICE THIRLWALL DBE

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Between:

	VYGANDAS PAKSTYS	Appellant	
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	PROSECUTOR GENERAL’S OFFICE OF THE REPUBLIC OF LITHUANIA	Respondent	

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Mr Graeme Hall (instructed by Hodge Jones & Allen Solicitors) for the Appellant
Mr Nicholas Hearn (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 9th November 2016

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Judgment
MRS JUSTICE THIRLWALL:

1.	The appellant, Vygandas Pakstys, 32, is a Lithuanian national.  He appeals against an order for his extradition made by the then Senior District Judge, DJ Riddle, at Westminster Magistrates’ Court on 18th April 2016.  He brings his appeal with the permission of Lang J.
2.	Lithuania is a Category 1 territory.   The EAW was issued by the Deputy Prosecutor General, Lithuania on 21st March 2015   It was certified by the National Crime Agency on 17th September 2015.  It is an accusatory warrant.    
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.
3.	The appellant left Lithuania in early 2013 and came to the UK.  He was arrested on 4th November 2015 and has remained in custody since then.  At the time of his arrest, he was living with his partner and their young son in Newport.  
4.	At about the time the appellant came to the United Kingdom reports emerged in the Lithuanian press of an investigation into the activities of a number of police officers in the area of Siauliai County, where Siauliai town is situated.   Allegations of corruption, including involvement in drug trafficking became public and investigations began.  In the course of the proceedings before the Senior District Judge, a number of requests for further information were made and information was duly provided.   There were a number of adjournments of the substantive hearing while enquiries were made and responses given.      The full extradition hearing took place on 10th December 2015.  It was the Senior District Judge’s intention to give judgment on the 18th December 2015.   
5.	That day, before judgment was handed down, in response to an earlier request from the appellant’s representative, the respondent wrote to the appellants enclosing a letter from the prosecutor responsible for this case.  This document is referred to as Further Information 1.     The document confirmed that there were reasonable grounds to believe that police officers had added between 20g and 50g of cannabis to the quantity seized at the time it is alleged the claimant was driving the car.  It also confirmed that the Panevezys Regional Court was conducting hearings against corrupt officers, including the officers identified as Ruchtinas, Pocius and Ivanovas.  Ruchtinas and Ivanovas are said to have admitted adding the cannabis to the package found.  
6.	In light of Further Information 1, the Senior District Judge adjourned judgment and the respondent made further inquiries.  Further Information 2 was provided on 8th January 2016.  It confirmed that: 
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.”
7.	Further Information 3 was provided on 13th January 2016 setting out the Lithuanian criminal process and confirming, in English, that the appellant’s case is at the pre-trial investigation stage.  The next stage is the drawing up of the indictment, at which point, the appellant would become a defendant rather than, as now, a suspect.  We were not provided with the questions that elicited those responses.
8.	The appellant made two statements and gave evidence before the Senior District Judge.  His partner also gave evidence.   It was the appellant’s case that he had on occasion driven a car owned by Dainius Peikevicius but he had nothing to do with the supply of drugs.  He had had a brief relationship with Ramute Kulvelyte.   He also said that in 2012 two police officers were harassing him so he decided to leave Lithuania.  
9.	The appellant gave evidence that he was unaware that he was wanted in respect of drug dealing.   The respondent accepted that the appellant had not been told by the police or prosecutors that he was wanted but the district judge found that he did know that was the case and had come to the UK to avoid the Lithuanian police.   The relevant passage of the judgment reads:
 “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.   
10.	The appellant ultimately raised 4 objections to extradition.  The Senior District Judge rejected all 4.  He decided: 
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.”  
11.	Further Information 4 was provided on 11 May 2016, after judgment.  It set out the basis upon which it was asserted that the appellant had hidden from the authorities.  It also included the testimony of Ms Kulvelyte which is most unhelpful to the appellant.  It is his case that the police exerted pressure on her to implicate him.   
12.	The grounds of appeal upon which permission has been granted are narrower than the original grounds.  Mr Hall, for the appellant, summarises them thus:

“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  [2016] UKSC 36.
13.	The respondent seeks to uphold the decision to extradite the appellant.  Mr Hearn submits that the Senior District Judge was wrong to conclude that the decision to prosecute had not been taken but even if the decision to prosecute had not been taken, the judge was entitled to find that this was solely because of the appellant’s absence from Lithuania.   
Ground One
14.	It is convenient to deal under this heading with the respondent’s submission that the Senior District Judge was wrong to conclude that the decision to prosecute had not been taken.  
15.	The European Framework Decision of 13 June 2002 has the status in the UK of a directive (by reason of the UK’s opting back into the Framework Directive under Title VI of the Lisbon treaty).   Section 12A EA must be assumed to be consistent with the Framework Decision (see paragraph 11 of Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin) a decision of the Divisional Court presided over by the Lord Chief Justice, with Burnett LJ and Ouseley J.)     
16.	Section 12A EA, inserted by the Anti-social behaviour, Crime and Policing Act 2014) provides:

“(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, 
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
(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.”
17.	We were referred by Mr Hall to the debate in Parliament preceding the passing of section 156 of the Anti-Social Behaviour, Crime and Policing Act 2014.  I do not consider it necessary or appropriate to refer to the debate since there is no ambiguity in the section.  Mr Hall reminded us that the purpose of the section is a relevant consideration and I adopt the approach taken in Puceviciene where the court set out the relevant passage of the Memorandum which accompanied the Bill, setting out the intended effect of section 156 (which introduced the predecessor to section 12A EA.)  The section 
“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.” 
18.	As the Senior District Judge found, the terms of the warrant make it plain that the appellant is to be arrested for the purposes of conducting a criminal prosecution.  The details provided and the relevant section of the Lithuanian Criminal Code support that conclusion.   The judge considered, correctly, that there was nothing in the warrant to suggest that the decision to charge or prosecute had not been taken.   In my judgment, the Senior District Judge was entitled to and should have stopped at that point.  There was no ambiguity and no need to have recourse to further information when the position on the central issue was clear.  The later questions, which we have not seen, elicited a response that led the Senior District Judge to a conclusion which was the opposite of the plain meaning of the warrant.  This is particularly unfortunate given that there was no doubt that the respondent had decided that the appellant was to be tried.   That decision is the reason for the appellant’s submission that the request for extradition involves an abuse of the process of this court.    
19.	The judge was at a disadvantage because he did not have the benefit of the guidance on section 12A EA handed down in Puceviciene in July 2016 which would have caused him to take a different approach.  
20.	The decision to charge or to try does not need to be final, irrevocable or require any particular formality (see paragraph 45 of Puceviciene).    Decisions to charge and try often do not require a high evidential threshold (see paragraph 40(iv)) although I note that there was evidence in this case from Ms Kulvelyte which, on the face of it, is probative and independent of the police.   
21.	Paragraph 50 of Puceviciene is particularly instructive.  

“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.”  
22.	It is against that backdrop that I approach the letter of 13th January.  It says “the criminal proceedings ... is (sic) in the pre-trial investigation stage.”  The next stage is the drawing up of the indictment.  That occurs when:
 “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.   
23.	It is important to distinguish between the decision to try and the steps that are necessary in order to give effect to that decision.  The latter are the focus of Further Information 3 which does no more than describe the procedural steps that precede a trial.  It is not there suggested that these steps are necessary before a decision to try may be taken.   
24.	Accordingly, I am satisfied that the Senior District Judge was wrong to consider that there were reasonable grounds for believing that one or more of the decisions required by section 12A EA had not been made.   In those circumstances it is not necessary to consider the submission that he was wrong to find that the respondent had established to the criminal standard that the sole reason the decisions had not been made was the appellant’s absence from the jurisdiction.  
25.	The submissions in respect of Mutual Legal Assistance also fall away in the light of my decision on the first point but were it to have been necessary to deal with Mr Hall’s argument that the decision of this court in Kandola v Generalstaatwaltschaft Frankfurt, Germany [2015] 1 WLR 5097 on the role of MLA in the context of the questions which arise under section 12AEA is to be preferred to the decision in Puceviciene on the point I would have rejected it.   The latter decision of a specially constituted three-judge court was reached after a comprehensive analysis of the law, the decision in Kandola and its consequences.   The reasoning set out in paragraphs 69 to 81 is compelling and leads inexorably to the conclusion that section 12A does not require MLA to be considered and rejected before extradition can take place.    
Ground Two
26.	By operation of section 11(5) EA the judge was required to proceed under section 21A EA.  Subsection 21A(1) required him to decide 
i) whether extradition would be compatible with the requested person’s rights under the European Convention on Human Rights and 
ii) whether extradition would be disproportionate.   
27.	There is no complaint about the judge’s decision that extradition was not incompatible with the appellant’s rights under the Convention.   Mr Hall submits that the judge was wrong in his assessment of the proportionality of the decision to extradite.  The three matters set out in section 21(A)(3) which a judge is required to take into account when dealing with proportionality are:
(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.    
28.	I shall consider (a) and (b) together.  Mr Hall accepts that possession of over 500 grams of cannabis with intent to supply is serious.  I agree.   I also agree that in the absence of any information from Lithuania as to the likely sentence (beyond the fact that the maximum sentence is 10 years’ imprisonment, as compared to a maximum sentence in this jurisdiction of 14 years) it is instructive to consider the Sentencing Council Guideline for Supplying a Class B drug which applies in the Crown Court of England and Wales.  This offence would come within either harm category 3 or 4.  The appellant’s role is at least significant and possibly leading.   Given a quantity of 500 grams, the starting point would be up to 4 years’ imprisonment with a sentencing range from a community order to 5 years’ imprisonment, depending on the role the appellant played and the level of harm caused.  The appellant’s criminal record would be a relevant statutory aggravating factor.  We know only that he has already served a prison sentence of some sort and, on his case, the corrupt police officers are seeking falsely to implicate those who already have criminal records.    The personal mitigation is scant.   I see no reason to depart from the Senior District Judge’s assessment that the sentence would probably be a significant prison term.  
29.	The appellant has been in custody for 12 months.  The early release provisions in this jurisdiction mean that 12 months served is the equivalent of a two year prison sentence.    The question of how long a sentence is to be imposed and the operation of early release provisions is a matter for the Lithuanian courts and their domestic maw. They do not affect the seriousness of the offence or the general nature of the likely sentence, neither of which cause me to consider that extradition would be disproportionate.  I see no error by the District Judge in that regard. 
30.	I turn then to the final submission on this ground: a less coercive measure is available.  Mr Hall submits that the Lithuanian authorities ought to use the arrangements for Mutual Legal Assistance before seeking extradition.     The claimant is willing to comply.  
31.	The Lithuanian prosecutor has said that if extradition is refused he will seek to proceed by way of MLA but in the first instance he seeks extradition.   Mr Hall complains that the Lithuanian prosecutor gives no reasoned explanation for his approach and that the Senior District Judge does not explain why he has not given much weight to the point.   This submission ignores the fact that the judge found, on good evidence, that the appellant was living in England in order to avoid the reach of the Lithuanian authorities.  He was using a false name.  His girlfriend had given evidence that he had come to this country to avoid the police.    In those circumstances, notwithstanding the offer now to cooperate with MLA it could not be said to be unreasonable for the requesting state to seek extradition rather than rely on his cooperation.  This conclusion assumes that MLA can be taken into account at this stage, something doubted by the court in Pucevience at paragraph 82. 
32.	It follows that I am satisfied that when taking into account all the matters required by section 21A(3) the Senior District judge’s decision that extradition was proportionate is not even arguably wrong.  
Ground Three: Abuse of process
33.	I can deal with this quite shortly.   Mr Hall submits that to seek to extradite the appellant is an abuse of the process of this court.  This ground is anchored in the submission that were the appellant to be returned to Lithuania the prosecution would rely on the evidence of corrupt police officers at his trial.  In addition to the background I have set out at paragraph 4 above Mr Hall points to the contents of Further Information 4 which says 
“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.”     
34.	Mr Hall asserts that the Respondent’s steadfast position that they will prosecute the appellant as soon as he is surrendered is abusive as it demonstrates that they are not prepared to listen to the Appellant’s evidence or defence and reassess the case in the light of it or in the light of the evidence about the police corruption.  I do not agree with that analysis.  There is nothing to suggest that the Respondent will not review its decision to prosecute in the light of new evidence.  The fact that as of January they did not consider that the outcome of the case in respect of the two police officers would affect a decision to refer the case to court may reflect their view of the strength of the evidence independent of those two officers.  Whether they are right will be a matter for the court in Lithuania.  It is not a matter for this court.  As Burnett LJ made clear in Auzins v Latvia [2016] EWHC 802 the underlying purpose of the abuse jurisdiction in extradition cases
 “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 [2007] 2 WLR 635, Belbin v France [2015] EWHC 149 and Italy v Barone [2010] EWHC 3004.  
35.	There is nothing in this case which begins to undermine the statutory scheme or the integrity of the EAW system.   The complaints about police corruption are already being considered by the Lithuanian courts, and the effect of any corruption on the integrity of the evidence will be for them.    As Ouseley J said in Symeou v Greece [2009] EWHC 897 (Admin) it is essential to recognise the respective functions of the courts of the requesting State and the requested state.   It is for the court of the requesting state to try the issues relevant to the guilt or otherwise of the individual 
“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.  
36.	Notwithstanding the elegant presentation of the appellant’s case by Mr Hall the abuse argument does not begin to get off the ground.  
37.	 Accordingly, I would dismiss the appeal.  
Lord Justice Burnett:
38.	I agree.