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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Atraskevic v Prosecutor General's Office, Republic of Lithuania  EWHC 131 (Admin) (30 January 2015)
Cite as:  4 All ER 770,  EWHC 131 (Admin),  1 WLR 2762,  WLR 2762
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE NICOLA DAVIES
| JAROSLAV ATRASKEVIC
|- and -
|PROSECUTOR GENERAL'S OFFICE, REPUBLIC OF LITHUANIA
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Mark Summers QC & Saoirse Townshend (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent
Hearing dates: 11/11/2014
Crown Copyright ©
Lord Justice Aikens :
The procedural history and the issues raised on this appeal.
The Factual Background in some more detail.
The "Forum Bar" provisions in section 19B of Part 1 of the Extradition Act 2003.
(1) The extradition of a person ("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge –
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice –
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to –
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.
(6) In this section "D's relevant activity" means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D.
The decision of the District Judge on the "Forum Bar" issue.
"Every material step towards the resolution of this case "in the interests of justice" points to trial in Vilnius. That is not to say Birmingham is irrelevant, crime seems to have been and intended to occur there. However, save for Jaroslav Atraskevic being in the UK, all other steps towards a prompt trial with witnesses/evidence being available points to Vilnius alone".
The role of the CPS generally in relation to extradition requests by Category 1 territories
(a) No domestic prosecutor is or has been engaged;
(b) A decision to charge in this jurisdiction has been made;
(c) A decision that England and Wales is not the most appropriate jurisdiction has been made, and
(d) A decision to issue a prosecutor's certificate has been made.
In respect of the first of those situations, the guidance provides as follows:
"…No domestic prosecutor is or has been engaged…
8. Where it is obvious from the extradition request that forum will be in issue the Extradition Unit lawyer will check CMS to see if a domestic case has been registered and also contact directly the relevant Central Casework Division and Complex Casework Units to find out if a domestic prosecutor is or has been engaged in the case.
9. If it appears that no prosecutor is or has been seized of the case but it appears to be a case where one might expect contact under the guidelines, the Deputy Head of Division (Extradition) will notify the Head of Special Crime and Counter Terrorism Division to decide if any further action is required.
10. If forum is raised and there has been no domestic involvement, the Extradition Unit lawyer will inform the judge. The Extradition Unit lawyer will assist the court with the specified matters as far as is possible. If further information is requested by the court, a domestic prosecutor may need to confirm that the CPS is not engaged domestically and that they have no evidence to consider…".
The facts concerning the role of the CPSEU in this case
(1) The complainants (whose names were provided) had been interviewed as witnesses. They currently resided at addresses in Lithuania (§1);
(2) It identified sources of evidence as follows (§2):
In Lithuania Jurij Masurov and Inesa Kirsanova (the appellant's co-defendants) published photos of the complainants on a website advertising sexual services. The further information also identified:
i. Data on the arrival of AA (a complainant) in Birmingham;
ii. Record of interview with all of the complainants;
iii. Records of identification from photographs;
iv. Records of interviews with a witness, BB;
v. Records of interviews with all of the other three suspects: Inesa Kirsanova, Vitold Cimosevskij, Jurij Masurov;
vi. "Records of use of technical means under special procedure"; and
vii. Material concerning the movement of funds in bank accounts.
(3) The further information also stated:
i. All of this evidence was in Lithuania (§3);
ii. The Requested Person has not been detained or arrested in Lithuania. On 28 August 2012, the Second District Court of Vilnius City issued an arrest warrant for the Requested Person having considered him to be "hiding from the pre-trial investigation" (§4);
iii. On 28 August 2012, a Lithuanian prosecutor considered the Requested Person to be a suspect (§5);
iv. A pre-trial investigation was conducted in relation to the Requested Person and his co-defendants. On 7 September 2012, the Requested Person's case was separated from his co-defendants'. His co-defendants' case was completed culminating in their conviction (§7);
v. The pre-trial investigation could not be completed because the Requested Person was considered to be in hiding. If extradited, he would then be served with a notification of suspicion and following pre-trial investigation, a bill of indictment will be brought. It is only then that a date can be fixed for hearing (§§8 and 9);
vi. The co-defendants had all been charged, tried and convicted of all counts (§§10 and 11);
vii. All of the witnesses are in Lithuania, save for one of the complainants, AA who is in Latvia (§12).
The arguments of the parties on the "forum – bar" issue.
Conclusions on the Forum-Bar Issue.
"In Re B (A Child) (FC)  UKSC 33 a majority of the Supreme Court held that an appellate court should treat the determination of the proportionality of an interference with the rights protected by the ECHR as an appellate exercise and not a fresh determination of necessity or proportionality, notwithstanding the duty of the court as a public body to consider human rights, see in particular -, - and . Lady Hale and Lord Kerr dissented ibid, at ,  and ."
In Re B(A Child) Lord Wilson JSC stated, at :
"Appellate courts must discharge their domestic duty under section 6(1) [of the Human Rights Act 1998]; but the manner in which they seek to do so is a matter for Parliament or for rules made under its authority. No one suggests, for example, that the appellate court should itself rehear all the evidence relevant to a Convention issue. On any view it will adopt much of the relevant material from the survey conducted by the trial judge. Civil appellate courts other than the Supreme Court operate in accordance with CPR r 52.11 , made pursuant to the Civil Procedure Act 1997. Paragraph (1) of the rule provides that
"every appeal will be limited to a review of the decision of the lower court unless … (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."
Such courts should in my view seek to discharge their duty under section 6 of the 1998 Act by determining a Convention issue in accordance with this paragraph."
The Article 8 appeal.
The proposed Article 3/prison conditions/breach of assurance appeal
"(4)The conditions are that –
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c)if he had decided the question in that way, he would have been required to order the person's discharge."