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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 >> Geleziunas v The Prosecutor General's Office, Republic of Lithuania  EWHC 16 (Admin) (05 January 2016)
Cite as:  EWHC 16 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| VALDAS GELEZIUNAS
|- and -
|THE PROSECUTOR GENERAL'S OFFICE,
REPUBLIC OF LITHUANIA
Laura Mackinnon (instructed by The CPS Extradition Unit) for the Respondent
Hearing dates: 20 February 2015, 27 April 2015, 15 June 2015
Crown Copyright ©
Mr Justice Sweeney:
(1) The offence was serious.
(2) In the context of extradition and cross border tracking the lapse of time involved since February 2010 was not great.
(3) Whether for innocent or not so innocent reasons, the Appellant's coming to the UK very close to the time of the alleged offence had meant that the Lithuanian authorities had had no easy way of tracing him – especially after the rest of the family had left Lithuania in May 2010.
(4) The NCA, having no confirmed knowledge of the Appellant's presence in the UK, could not burden the system until confirmed presence was made known.
(5) The impact of extradition by removing the main carer for the children would probably force the Appellant's wife to reduce, if not cease, her current employment and almost certainly look to State benefits for fiscal support – whilst, as seemed likely notwithstanding her statement, prevailing on the older children to assist with the care of younger siblings.
The grounds of appeal
(1) Extradition should be barred by s.14 of the EA as it would be oppressive for the Appellant to be extradited due to the passage of time that has elapsed since the date on which he is alleged to have committed the extradition offence.
(2) Extradition should be barred under s.21A(1)(a) of the EA as an order for extradition would amount to a disproportionate interference (i.e. be incompatible with) the Appellant's Article 8 rights and those of his family.
(3) Extradition was disproportionate and thus barred by s.21A(1)(b) of the EA.
The first ground - s.14 (The passage of time)
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time [since he is alleged to have -](a) committed the extradition offence (where he is accused of its commission)……"
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for over lapping, and between them they would cover all cases where to return him would not be fair."
"First, the question is not whether it would be unjust or oppressive to try the accused but whether……..it would be unjust or oppressive to extradite him…….Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible; much will turn on the particular case……Fifthly, there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive."
(1) The central issue in the case was delay, with the key points being that the Appellant was not a fugitive; his unchallenged evidence that, at all material times, he had been registered with the Home Office; and the fact that no information had been supplied as to what checks had been done by the NCA in May 2012 - when a straightforward check with the Home Office would have revealed the Appellant's presence and thus avoided a culpable delay of two years.
(2) The period of time that had elapsed since the alleged commission of the extradition offence, i.e. in excess of four years, was significant in the context of a straightforward allegation of an offence which, though not trivial, was not of the utmost seriousness; would not necessarily result (particularly given the changes in the Appellant's circumstances since 2010) in the imposition of an immediate custodial sentence; and was one in relation to which the public interest in prosecution had been diminished by the passage of time.
(3) There was a substantial period of unexplained delay by the Judicial Authority – given that there was no explanation for the fact that the EAW indicated that a search for the Appellant was first instituted on 4 June 2010 and yet the domestic arrest warrant was not issued until January 2012.
(4) There was clearly culpable delay on the part of the NCA, in that (against the background that the Appellant was living openly in this country) there must have been a failure, after receipt of the EAW in May 2012, to carry out the sort of basic checks that would have resulted in the EAW being executed shortly afterwards – rather than in June 2014.
(5) The decision of Blake J in Slawonir Oreszczynsi v Krakow District Court, Poland  EWHC 4346 (Admin) was instructive as to the potential effect of unjustifiable delay. In particular, even though it involved a fugitive, the appeal was allowed and Blake J was highly critical of the NCA's failure to take reasonable steps to locate the requested person (such as checking whether he was registered with the Home Office), and observed that extradition can become disproportionate where there has been lengthy culpable delay on the part of the executing authorities, because delay frequently leads to the deeper entrenchment of the Appellant's family life.
(6) Some reliance was also placed on Juszczak v Circuit Court Poznan Poland  EWHC 526 Admin in which Collins J decided, in a case in which the whereabouts of the Appellant had been known for 6-7 years, that delay tipped the balance in the Appellant's favour in relation to Article 8.
(7) The Appellant's children were aged 18,16,14,8,5 and 2, with all but the youngest in full time education - making it impossible for the oldest to look after the others. The Appellant no longer worked due to medical difficulties. His wife provided the only family income and he was the main care provider for the children. The family home was privately rented and would be at risk if the Appellant was extradited because his wife would be forced to give up her employment to look after the children, and might have to return to Lithuania.
(8) Hence, whilst it was accepted that the Appellant could recall the relevant events and put forward a defence, extradition would be oppressive. Discharging the Appellant would not reward him for avoiding justice; and nor would it reduce mutual trust.
15. Miss Mackinnon, on behalf of the Respondent, argued that:
(1) The question for the Court was whether, given the period of time that had elapsed since the alleged commission of the offence, extradition would be oppressive.
(2) The alleged offence was of a relatively high value and therefore (as was accepted on the Appellant's behalf) could not be characterised as trivial.
(3) The passage of time, in the context of extradition cases, was not a particularly lengthy one.
(4) As was accepted, it was clear from the Appellant's proof of evidence that he remembered the alleged events and could properly put forward his account at trial.
(5) The Lithuanian Authorities had acted diligently in that a search had been instituted four months after the alleged offence, and a domestic warrant had been issued some fourteen months after that.
(6) There was no culpable delay by the NCA - in that the Appellant had been checked for in May 2012, very shortly after the EAW was issued, following the "standard operating procedure at the time" (per the statement of Craig Smith of the NCA which was before the District Judge). There was nothing at that time to indicate that the Appellant might have come to the UK, or that it was necessary to go beyond the standard operating procedure. It was not until February 2014 that the NCA was given a UK address for the Appellant and, once that was received, the NCA had acted quickly in making checks and obtaining the EAW. Hence the District Judge was correct in his assessment, at  of his judgment, that: "The NCA, having no confirmed knowledge of UK domicile, could not burden the system until confirmed presence was made known."
(7) Even if there had been culpable delay by the NCA, that did not render extradition disproportionate.
(8) The Appellant's case could be readily distinguished from that of Oreszczynsi (above) given that, in that case, the offences dated from 2002; in 2010 the NCA had received information from a Primary Care Trust that the Appellant was registered with the Trust in the UK, but had failed to follow that up; and thus there was a gap of four years between issue and certification of the EAW in relation to alleged offences which, by the time of certification, were some 12 years old. Whereas in the instant case:(i) The delay between issue and certification was 18 months (rather than 4 years) and, at the time of the appeal hearing in February 2015, the alleged offences were five years old (rather than 12 years old at the time of certification).(ii) In 2012 the NCA had no information to suggest that the Appellant was in the UK; the warrant contained only a Lithuanian address; no information was forthcoming about the Appellant's whereabouts in consequence of the checks made by the NCA; and in February 2014, once the NCA had become aware that the Appellant was in the UK, they had acted promptly.
(9) Against that background, and whilst it was accepted that the Appellant and his family had established a life in the UK, the Appellant's extradition would not be oppressive; it would cause hardship but nothing beyond that typically inherent in extradition.
(1) Notice of the EAW was first received by the NCA from Interpol Vilnius on 22 May 2012.
(2) The information provided included the Appellant's name, date of birth, nationality and details of his identity documents.
(3) The regions / countries that the Appellant was said to be likely to visit included, as a possibility, the United Kingdom – with no further detail being given.
(4) A PNC check would have taken place at that stage, but the file did not show that any PNC matches had been found.
(5) No further action had been taken by the NCA until 1 July 2013, when an email had been received from Interpol Vilnius which had indicated a possible United Kingdom address for the Appellant.
(6) In consequence, further PNC checks had been undertaken by the NCA and the new information had been circulated across various national databases, but it was not until 15 February 2014 that information had been received from the Lincolnshire Police that a possible match to the Appellant had been encountered, and a new address for him had been provided.
(7) Thereafter, starting on 16 February 2014, a wide variety of overt and covert database checks had been made (including with some civil service departments under the Home Office umbrella) – with the delay in certification until 11 June 2014 being caused by the length of time that it had taken for the results of the checks to be returned, which had delayed corroboration and verification of possible addresses.
(1) The statement of Helen Vaughan confirmed that the approach of the NCA in this case was identical to the approach taken in Oreszcynsi (above).
(2) It was now clear that when the NCA had been made aware of the EAW in May 2012 the only check that had been conducted had been on the PNC and, as the Appellant had never been arrested here, there had been no match. No further action (for example, a check with the Home Office) had been undertaken.
(3) It was not until after the information had been received from the Lincolnshire Police on 15 February 2014 that Home Office checks had been carried out and the Appellant's address had been identified.
(4) Hence the "systemic failings" of the NCA identified in Oreszcynsi had resulted in culpable delay in this case and therefore, for the reasons previously advanced, the Appellant should be discharged.
The second ground – s.21A(1)(a) (Article 8)
"Person not convicted: human rights and proportionality
(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 offence;(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.
(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.
(8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."
"The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves…..Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition".
"(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.(2) There is no test of exceptionality in either context.(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe….…the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg Court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is "necessary in a democratic society" in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale."
(1) It was clear that extradition would interfere with the Appellant's Article 8 rights as well as those of his family.
(2) It was also clear, as confirmed by both Norris and HH, that honouring extradition arrangements, so that outstanding criminal sentences could be enforced, or so that individuals could be brought to trial, was a "legitimate aim".
(3) Accordingly, the question to be resolved was: whether an order for the Appellant's extradition was a proportionate response to the legitimate aim that had been identified?
(4) In answering that question the court would need to consider many of the factors that were relied upon in support of the passage of time challenge (see above), and which compelled the conclusion that extradition would amount to a disproportionate interference with the Appellant's Article 8 rights.
(1) Whilst the Appellant had lived in the UK for some 5 years and had a family life here, there was nothing in his circumstances that would make his extradition more oppressive than the interference inherent in other extradition cases.
(2) Whilst his wife currently worked, there would be nothing to prevent her from applying for benefits if she needed to scale down her work in the Appellant's absence.
(3) The District Judge found as a fact (see  of his judgment) that it seemed likely, notwithstanding her statement to the contrary, that the Appellant's wife would prevail on the older children to assist with the care of younger siblings.
(4) The constant and weighty public interest in extradition greatly outweighed the matters advanced on the Appellant's behalf and, particularly in view of the seriousness of the alleged offence, extradition was clearly proportionate.
(1) The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in Norris (above) and HH (above). In future, absent further guidance from a specially constituted Divisional Court or the Supreme Court, it would not be necessary to cite any other authorities. In the latter case at  (above) Baroness Hale JSC made clear, at subparagraphs (3), (4) and (5), that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition; that there was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that the UK should honour its international obligations; that the UK should not become a safe haven; and that the public interest would always carry great weight, but that the weight varied according to the nature and seriousness of the crime involved (emphasised again by Baroness Hale JSC, and also by Lord Judge LCJ, Lord Kerr JSC and Lord Wilson JSC).
(2) It was important that the judge bore in mind, amongst other things, that:
(i) HH was concerned with cases that involved the interests of children, and the judgments must be read in that context .
(ii) The public interest in ensuring that extradition arrangements are honoured is very high, as is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (both of which factors would be expected to be addressed in the judgment) .
(iii) The decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect – particularly since the UK has been subject to the CJEU (which has stressed the importance of mutual confidence and respect) since 1 December 2014 .
(iv) The independence of prosecutorial decisions must also be borne in mind .
(v) It is also important for the judge to bear in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; and the judge must also take into account that personal factors relating to family life which will need to be brought into the balance under Article 8, will also form part of the matters considered by the court in the requesting state in the event of conviction .
(vi) A structured approach to Article 8 cases is essential, given that each case will turn on the facts found by the judge and the balancing of the considerations set out in Norris and HH [14 (ii)].
(vii) The approach should be one in which the judge, after finding the facts, sets out a list of the "pros" (militating for extradition) and "cons" (militating against extradition) in "balance sheet" fashion, and then sets out his reasoned conclusion as to the result of the balancing exercise and why extradition should be ordered or the defendant discharged  & .
The third ground – s.21A(1)(b) (Proportionality)
(1) Whilst it was accepted that the offence was not trivial, and that it did not fall into the category of offences that would render extradition per se disproportionate, neither was it of the utmost seriousness. The position where extradition is sought for offences listed in the Criminal Practice Directions Amendment No.2  EWCA Crim 1569 at 17A.5 should also be borne in mind, together with Pitchford LJ's then recent acknowledgment (in Miraszewski v Poland  EWHC 4261 at ) that that guidance should be approached "as a floor rather than a ceiling".
(2) There was a real possibility of a non-custodial or non-immediate custodial sentence being imposed - not least because the alleged offence was over 4 years old; the Appellant had not been convicted of any offence in the intervening period; and had substantial family responsibilities. Indeed, in this country a suspended sentence, at worst, would be the likely outcome.
(3) The Respondent had failed to consider less coercive measures and, given in particular the period of time that had elapsed since the alleged offence, the fact that the Appellant was not a fugitive, and that he had no history of failing to surrender, the Respondent should have considered serving a summons.
(4) The combination of all three specified matters showed that the proposed extradition would be disproportionate.
(1) The District Judge was right to find, at  of his judgment, that: "the offence is serious involving, on its face, a significant quantity of 'high value' scaffolding…." As the Appellant had conceded, the alleged offence was clearly not a trivial one. In addition, the facts set out in the EAW showed that there appeared to have been a degree of planning and the involvement of a group. It was clearly up the scale of gravity from simple theft.
(2) The maximum penalty for the alleged offence was one of 8 years' imprisonment. Whilst it was not known whether the Appellant had any antecedents in Lithuania, nor whether his alleged accomplices had been convicted or sentenced, based on the likely sentence in this jurisdiction and the level of sentencing for theft offences frequently seen in other EAW cases, a custodial sentence was the likely outcome.
(3) In Miraszewski (above) at  Pitchford LJ, when considering s.21A(3)(c), said: "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". Against that background it was reasonable to assume, in the circumstances of this case, that the Lithuanian Judicial Authority had considered a summons under its Article 5(3) obligation. In any event less coercive measures would not be appropriate in this case.
(4) In all the circumstances, extradition was proportionate.