Statkevicius v Prosecutor General Office Lithuania

J U D G M E N T

1. MR JUSTICE MCCOMBE: This is an appeal under section 26 of the Extradition Act 2003 (which I shall call "the Act") by Mr Arturas Tomas Statkevicius ("the Appellant") against the order dated 31 January 2011 of District Judge Evans, sitting at the Westminster Magistrates' Court, whereby the judge ordered the extradition of the Appellant to Lithuania.

2. By a warrant of 4 January 2007 the respondent seeks the extradition of the Appellant. The extradition is sought for the purpose of the trial of the Appellant for three offences in relation to a company called "Marmedis", which was trading in Lithuania.

3. The first offence alleged is one of fraudulently concluding a contract in order to receive financial support from the European Union in excess of some 87,000 euros; secondly, whilst acting as shareholder and director of the same company, mismanagement of the affairs of the company in 2003 and 2004 thereby leading it into bankruptcy and, thirdly, in the same capacity, failing to keep proper accounts.

4. The warrant in its full form was not transmitted to this country until 2010, 3 years after its original issue, and that is a matter to which I shall have to return.

5. The Appellant was arrested on 21 September 2010 and was produced before the Magistrates' Court on the same day, when the extradition hearing was formally opened and adjourned. There were subsequent hearings on 12 October, 19 November and, finally, on 4 January 2011. The substantive hearing took place before the District Judge on 31 January, when both parties were represented by counsel. Mr Grandison appeared for the respondent, as he has before us yesterday and today; the Appellant now appears in person with the very able assistance of Mr Britton who has acted as his McKenzie friend and, with the leave of the court, has acted as his advocate; I pay compliment to his submissions both written and oral.

6. At the conclusion of the hearing the judge ordered the extradition of the Appellant. On 3 February, the Appellant, then acting by solicitors, issued and served an Appellant's notice appealing to this court against the extradition order. However, on 4 February 2011 the solicitors filed a notice stating the Appellant would now be acting in person. On 15 March, again acting in person but probably with the assistance of Mr Britton, the Appellant lodged his grounds of appeal. On 7 February 2011, an order stamped on 9 February, Ouseley J made an order under paragraph 26.6A(4) of the Practice Direction to Part 52 of the Civil Procedure Rules, extending the time within which an appeal had to begin, pursuant to section 31 of the Act, to 20 April 2011.

7. The original grounds of appeal, which have in the circumstances been argued before us, raised six points: (1) first, that the judge incorrectly failed to hold that the extradition should be dismissed because of the passage of time; (2) there was a failure to give proper regard to evidence from the Serious Organised Crime Agency about delays in the extradition request; (3) that the judge had been indecisive in certain respects in his judgment leading to the order; (4) that he failed to give proper consideration to the Appellant's family circumstances; (5) the judge gave undue weight to the perceived seriousness of the allegations; and (6) he failed to give proper regard to the Appellant's arguments about two notes from the Appellant concerning further information received by the Crown Prosecution Service from the respondent.

8. With that appeal pending, on 26 April 2011, after the expiry of the extension granted by Ouseley J in February, the Appellant filed a Notice of Application seeking a declaration that pursuant to section 31(6) of the Act his appeal must be taken to have been allowed (using the phraseology of the Act), that he must be taken to have been discharged by this court, and that, by operation of the Act, the extradition order must be taken to have been quashed by the court.

9. On 5 May 2011, in the face of that application, Ouseley J made a further order under the Practice Direction extending the time for the beginning of the hearing of the appeal to 19 May 2011, but subject nonetheless to the new point upon his jurisdiction to grant any such extension. On 18 May 2011, the appeal with the Notice of Application came before Mitting J, who adjourned the hearing of the appeal upon the Appellant's undertaking to apply by 4.30 pm on 20 May for public funding, essentially to argue the point arising under section 31 of the Act that the appeal had in effect been allowed by operation of law. New solicitors came briefly onto the scene but went off the record in September this year.

10. The appeal and the preliminary point under section 31(6) are now both before us. I turn first to that preliminary point.

11. Section 31(1) of the Act provides that rules of court must make provision for the period within which this court must begin to hear any appeal under section 26 or 28 of the Act. By subsection (2) the period must begin with the arrest of the person who is the subject of the extradition request. I would humbly observe that it is a rather strange provision since between the arrest and any appeal the original extradition hearing before the Magistrates' Court has to take place. One might perhaps have expected that the appropriate time would run from some date after the decision of the Magistrates' Court. However, that is the legislation as it stands.

12. Section 31(3) provides that this court must begin to hear the appeal within the prescribed period from the date of arrest. Section 31(4) then goes on to say this:

"The High Court may extend the relevant period if it believes it to be in the interests of justice to do so and this subsection may apply more than once."

13. Subsection (5):

"The power in subsection 4 may be exercised even after the end of the relevant period."

14. There then follows section 31(6) of the Act, which the Appellant says applies in this case and, in effect, is a trump card in his favour, requiring this court to say that the appeal has already been allowed and the order quashed. That subsection provides:

"If subsection(3) is not complied with and the appeal is under section 26, (a) the appeal must be taken to have been allowed by the decision of the High Court; (b) the person whose extradition has been ordered must be taken to have been discharged by the High Court; (c) the order for the person's extradition must be taken to have been quashed by the High Court."

15. The relevant rules of court, which the Act requires, are contained within paragraph 22.6(A) of the Practice Direction to which I have already referred and they provide that the hearing of an appeal such as the present must begin within 40 days of the arrest. This period had, in effect, already expired even by the time of the substantive hearing before the District Judge. Nonetheless, no objection is taken by the Appellant in respect of Ouseley J's initial extension order of 7 February. He says in paragraph 7 of his skeleton argument: "Such an order was entirely consistent with section 31(4) of the 2003 Act." I, for my part, asked Mr Britton in the course of argument how that statement was consistent with his later argument; with respect to his answer, I am not sure that the two points are entirely consistent.

16. The Appellant submits, however, that on the expiry of the extension granted by Ouseley J to 20 April 2011, section 31(6) came into play with the consequences there specified and that no further extensions of time were permissible. His submission orally was, in effect, that on Thursday 21 April 2011 the respondent had to apply for a further extension and, that if that did not happen, then section 31(6) came into play.

17. With respect to the careful submissions of Mr Britton, I do not accept that argument. Quite simply, it flies in the face of the express words of sections 31(4) and (5) of the Act, which I have read. Those subsections provide that the extension power may be exercised more than once and that the power may be exercised "even after the end of the relevant period." Apart from authority, it seems to me to be clear that that provision must apply even where there has been non-compliance with the initial relevant period or with that period as previously extended by the court. However, to my mind, the point has indeed been decided to this effect by this court on at least two previous occasions. I refer to the cases of Moulai v Director of Public Prosecutions of Creteil France [2009] EWHC 1031 (Admin) (decided by Keene LJ and Roderick Evans J) and to Wright v City of Westminster Magistrates' Court [2011] EWHC 515 (Admin), decided by Gross LJ and Davis J (as he then was).

18. The crux of the authority on this point appears in paragraph 14 to 17 of the judgment of Keene LJ in the first case, which I must quote:

"It seems to me clear that the power to extend time can be exercised even after the time has expired, if the court believes that to be in the interests of justice. Section 31(5) expressly so provides in respect of 'the end of the relevant period'. That is initially a period of 40 days, but once that has been extended under section 31(4), it is the 'relevant period' that has been extended and which can then be extended again, subject to the application of the criterion as to the interests of justice. Nothing in section 31 leads one to interpret section 31(5) as requiring an application to extend to be made before the expiry of the period in question. It says nothing of the sort.

I do not accept Mr Gill's argument [(I interpolate) that is as the argument for the Appellant in that case] that, if no application to extend the period has been made before the end of that period, to allow an extension retrospectively would render section 31(6) meaningless. That subsection sets out the consequences if the relevant period expires and the court decides not to allow an extension. The appeal is automatically deemed to have been allowed. Section 31(6) still has that function to perform, if the court does not extend time. Mr Gill's point, if valid, would apply just as forcefully if an application to extend time had been made before the end of the relevant period: the period would have expired without any extension having been made. If he were right, it could be argued that section 31(6) immediately operated and the appeal was deemed to have been allowed. But that is not what Mr Gill argues for, and rightly so. The power to extend time retrospectively, clearly provided by section 31(5) is incompatible with such an argument, but it likewise fatally undermines the Appellant's argument that section 31(6) must operate automatically and irretrievably once the period expires and no application to extend has been made.

There is another flaw in that submission. It presupposes that an application to extend the relevant period is a pre-condition to the exercise of the section 31(4) power. But it is conceded by Mr Gill that the court may exercise the power of its own volition. No application by either party is required, though no doubt that would normally occur. But if that is so, how could the retrospective power to extend the period be dependent on an application being made before the expiry of that period? Nor do I find that the Appellant's reliance on sections 26 and 32 assists his case. ... There is no power to extend them. That is in complete contrast to the situation under section 31, which not only grants a power to extend time but expressly allows that power to be exercised more than once and to be exercised retrospectively. It may be well be that greater flexibility recognises that the timing of the court hearing is significantly different from the timing of the giving of a notice of appeal. The latter is under the unilateral control of the prospective Appellant, but the time at which the appeal hearing takes place is not: it will involve others and in particular the court itself. I conclude therefore that the power to extend the relevant period does exist in the present case. Whether that power should be exercised depends upon this court forming the belief that an extension would be in the interests of justice."

19. The second case ( Wright ) was a decision with regard to section 113 of the Act, which for those purposes makes identical provision in respect of appeals under section 103. The court reached the same conclusion.

20. The Appellant seeks to draw some distinction out of the fact that in the present case his Notice of Application is seeking a declaration that section 31(6) applies to his case and he refers to paragraph 8 of Keene LJ's judgment in the Moulai case, pointing out that in fact there was no application for the declaration in that matter. However, in paragraph 8 Keene LJ is simply pointing out the nature of the procedure that was undertaken in that case rather than drawing a distinction of principle between the two. All that was being said was that it would have been open to the Appellant in that case to apply for a declaration without waiting to oppose any application made by the respondent and he chose not to do so. To my mind, it says nothing about what the proper construction of section 31 as a whole would have been if such an application for a declaration had been made. It seems to me that the construction of the section would have been the same and the same result would have followed. The construction of the Act cannot depend, to my mind, upon the precise procedure that is adopted.

21. In my judgment, therefore, the preliminary point carefully argued as it was by Mr Britton must fail and the court must turn to the remainder of the appeal.

22. The first point taken is as to the judge's finding that the extradition sought was not barred by the passage of time within the meaning of section 14 of the Act. Under this broad head the Appellant has advanced six grounds of appeal, some of which are interrelated.

23. It is not necessary to recite now the terms of section 14 of the Act nor to quote the well-known passage from the speech of Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779, dealing with the parallel provision in section 8 of the Fugitive Offenders Act 1967. Both of those authorities are set out in the written arguments before the court and I have them fully in mind.

24. The learned judge did not find that the Appellant had fled the jurisdiction of the Lithuanian court, although such an argument, it seems to me, was plainly put to him. However, he did decide that it would be neither unjust nor oppressive to extradite him. Both before the judge and now the Appellant points to three reasons why it would be unjust to extradite the Appellant because of potential prejudice to his defence to the charges made.

25. First, he argues he is no longer able to have access to documents previously held by his mother-in-law in Lithuania. His mother-in-law, it is said, died in 2008 and the new tenants of her property are said to have disposed of the papers. The quantity of papers has been identified by Mr Britton for us as being some 70 bundles of papers contained in a number of boxes. I note in passing the prosecutors say that the investigation involved scrutiny of 128 bundles of documents. So those at least are still available.

26. Secondly, the Appellant says that a Mr Gureckis, who played an important part in the business of the company, has died, his death having occurred in June 2010, and therefore is unavailable as a witness. One notices again, however, from the Appellant's evidence before the Magistrates' Court, that the interests of Mr Gureckis and the Appellant in the running of the company appear to have been far from amicable; and one might question therefore the prejudice to the Appellant by his absence. Mr Britton puts to us that even if their relationship had been hostile in the running of the company, Mr Gureckis would have been under an obligation before the Lithuanian court, as before any court, to tell the truth.

27. Thirdly, it is argued that the company's bookkeeper, Mrs Genovaite Krivic, emigrated to the United States some time ago and is now also therefore lost to the Appellant as a witness. It is said that she has become untraceable.

28. The learned judge's decision on these points was as follows. Quoting paragraph 17 of his judgment, he said:

"I accept that any or all of those points might mean that a fair trial is not possible. However, this court is entitled to trust the fairness of the Lithuanian trial process, whereby the judge would be able to consider those points and assess whether the defendant is prejudiced or not. I am not in a position to appreciate the strength of the prosecution case, whether those points are merely advanced in an attempt to thwart this extradition request, or whether in fact they are sound and good arguments; only a Lithuanian judge with a full understanding of the case can make such a judgment. I am satisfied there would be nothing unjust in ordering the defendant's extradition to face these allegations."

29. It is this passage too which the Appellant criticises in his third ground of appeal as demonstrating some indecision on the part of the judge.

30. The decision of questions such as these, in the context of section 14 of the Act, have been the subject of numerous decision of the courts. The test is, of course, as the Act states, whether it would be unjust to extradite the person in respect of whom the request is made. In Knowles v Government of the United States of America [2007] 1 WLR 47, Lord Bingham of Cornhill, giving the judgment of the Privy Council in that case, said this:

"The board was referred to the valuable analysis of delay in the context of extradition made by the Divisional Court (Simon Brown LJ and Royce J) in Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin), [2004] 1 WLR 1979, from which it would extract and endorse the following propositions. First, the question is not whether it would be unjust or oppressive to try the accused but whether under the 1994 Act it would be unjust or oppressive to extradite him. Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him. But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect a defendant against a trial rendered unjust or oppressive by the passage of time. 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."

31. In the case of Woodcock , cited with approval by Lord Bingham, Simon Brown LJ also said this:

"If, of course, we were to conclude that the domestic court in the requesting state would be bound to hold that a fair trial of the accused is now impossible, then plainly we would regard it as unjust (and/or oppressive) to return him. Equally, we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we would regard as satisfactory procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction."

32. In the case of Council of Europe countries, they now are assumed to be capable of protecting from injustice defendants potentially prejudiced by delay in bringing them to trial, whether by an abuse of process jurisdiction (such as our own) or otherwise. This was stated expressly by Lord Brown of Eaton-under-Heywood (as Simon Brown LJ had by then become) in Goodyer & Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, at paragraph 35. In a further case of Krzyzowski v The Circuit Court in Gliwice , Poland [2007] EWHC 2754 (Admin), Longmore LJ said that it was not for a requesting state, bound by Article 6 of the ECHR, to provide evidence of the mechanisms by which such protection would be effected. The learned Lord Justice said this in paragraph 23 of his judgment, as follows:

"The submission [that means the submission made by the Appellant] seems to me to be fundamentally inconsistent with the concept of the European Arrest Warrant and the way in which the 2003 Act is expected to work in relation to the category 1 territories. If evidence is to be required as to 'the nature of the evidence to be adduced at trial,' we shall be back to the old days of previous extradition procedures and we shall not be expressing proper confidence in the integrity of each other's legal and judicial systems enjoined on as by Lord Bingham of Cornhill in the Armas case."

33. In my judgment, the learned District Judge was right to hold that the Lithuanian court, bound by Article 6, would be capable of assessing the nature of prejudice, if any, suffered by the Appellant by the delay, in the context of the case as a whole, either by dismissing the charges because no fair trial is possible or by suitable protection within the trial processes by means similar to those adopted in cases of delayed prosecutions in our own courts. He was therefore entitled to decide that it would not be unjust to extradite the Appellant for the reasons identified by him in the passage that I have already quoted.

34. The passage in the judge's judgment dealing with these matters did not, in my view, show "indecision" on his part in the present case; he was simply stating correctly how the law regards the respective duties of the court dealing with an extradition request in a European Arrest Warrant case and of the court of the state to which the subject may be extradited for trial. For these reasons, I would reject the first and third grounds of appeal.

35. The thrust of the Appellant's contentions on the other points raised in the grounds goes to the allegedly oppressive nature of the extradition in this case.

36. Turning to the second ground (covered by paragraphs 26 to 33 of the grounds), the point taken here is that enquiries by the Serious Organised Crime Agency revealed that incomplete warrants were transmitted to this country by the Lithuanian authorities in March and April 2007 and that the full warrant was only received by SOCA, as I shall call it, in May 2010, giving rise to these proceedings. It is argued that the respondent appears to have abandoned the extradition process for almost three years between 2007 and 2010 and that in the meantime the potential "prejudice" to which I have already referred, arising from the three features already identified, arose. In the same time, the Appellant and his family were establishing themselves in a law-abiding manner in this country.

37. Looked as a question of the alleged "injustice" of the extradition for the purposes of section 14, it does not appear to me that this feature adds anything in a significant way to the matters already considered. It is still properly a consideration for the courts in Lithuania to decide whether delay, coupled with the features identified by the Appellant, should mean that a trial should not proceed or whether it should proceed with appropriate protection in the trial processes.

38. Delay may, however, go still to the question of whether the extradition is "oppressive". As Hughes LJ said in the case of Spanovic v The Government of Croatia [2007] EWHC 1770 in a passage (Admin) in a passage quoted by Laws LJ in a later appeal in the same case, Spanovic v The Government of Croatia and another [2009] EWHC 723 (Admin), as follows:

"... a development by the person sought of a sense of security may be one of the relevant effects of delay and one which may lead to a finding that extradition would be oppressive, as for example in Kakis itself, it seems to me that that may well involve examining whether culpable neglect or delay on the part of the requesting state has engendered such a sense of security. But I have no doubt that it is not the law that if there is proved to be culpable delay in finding the man it is therefore necessarily unjust or oppressive to extradite him, any more than it is necessarily or unjust or oppressive to try a domestic English defendant because the police have been (culpably) less than assiduous in catching him. Although culpable delay may be relevant, the principal focus, when it comes to considering the passage of time is not on a judgment on the performance of the requesting state's investigation but on the effect that the passing of time has had."

39. I do not consider that such oppression is made out on the basis of this matter alone. It does not make out a case that extradition would be oppressive any more than it makes out a case of "injustice" which I have already considered.

40. It is necessary to consider, however, this aspect of the case together with the point made in the sixth ground of appeal, namely the discrepancies in the information provided by the Lithuanian authorities as to the dates on which the early steps in the investigation and in the search of the Appellant began. These discrepancies were cogently pointed out in letters to the District Judge dated 9 December 2010 and 25 January 2011 from the Appellant. The learned judge summarised the discrepancies pointed out in the first letter in paragraph 11 of his judgment in the following terms:

"The warrant mentions that the defendant had gone into hiding from the pre-trial investigation. A search was announced for him on 18 November 2005. A ruling was made by the District Court of Marijampole Region on 24 March 2006 when a domestic arrest warrant was issued. This European Arrest Warrant was issued on 4 January 2007. All those dates are inherently consistent. However, as the defendant points out in his letter to this court dated 9 December 2010, some of those dates are difficult to reconcile with dates provided in the further information provided about the Judicial Authority dated 12 November 2010. This new information tells us that the defendant was first suspected to have committed the offences referred to in the European Arrest Warrant on 11 November 2011. However, it then goes on to state that since 11 October 2004 the defendant became wanted and enquires made of the defendant's relatives revealed that the defendant had left Lithuania for an unspecified destination on 11 September 2004 and later it says that the pre-trial investigation started on 3 November 2004. Finally it says 'on 31 December 2004 the case was assigned to the specialist to complete the task regarding offences specified in the European Arrest Warrant and 128 bundles of documents were forwarded'."

41. The second letter of 25 January 2011 the learned judge described as "mostly argumentative and repetitive of points previously advanced." With that description I broadly agree.

42. The judge noted in his judgment at paragraph 19 that the submission on the part of the Appellant had been that it was the combination of these features, his family circumstances, his ignorance of pending criminal proceedings and the respondent's culpable delay (together, he might have added, with the unsatisfactory nature of the further information provided) that rendered the extradition oppressive.

43. It is clear to me there was delay in the pursuit of the extradition between 2007 and 2010. Equally, the information provided by the Lithuanian authorities about the early stages of the criminal investigations did contain either inconsistencies or inaccuracies, as revealed by the Appellant's two letters. In that same period the Appellant pursued a lawful and positive lifestyle in this country. It is noted that his two family members in this country (his wife and daughter) are respectively employed at a London hospital and, in the daughter's case, studying at university with ambitions for further study. These features, however, to my mind, are far removed from the features of true oppression within the meaning of the Act, as identified in the case of Senkus v District Court of Kaunas [2007] EWHC 345 (Admin), a case on which the Appellant heavily relies.

44. I should finally refer to some new evidence that was adduced, without objection from Mr Grandison, by the respondent, which was produced to the court today. The new evidence consists of a certificate of naturalisation of the Appellant's wife and a letter from the UK Border Agency informing the Appellant that his own application for citizenship has been, in effect, put on hold pending the outcome of these proceedings. To my mind, that material emphasises the lawful nature of the Appellant's presence in this country and his firm resolve to pursue a worthwhile family life and private life and professional life in this country but does not take the matter truly further in demonstrating a case of oppression any more than the evidence that was before the learned judge in the Magistrates' Court.

45. In my judgment, at the end of the day, the extradition would not be either unjust or oppressive. The points of alleged prejudice to a proper trial must be assumed to be capable of being taken properly into account by the Lithuanian courts for the reasons already given. The delay in this case is far from lengthy, looked at in the scale of cases that have come before the court. Clearly, the investigation involved a consideration of bulky materials. After that, while the requesting authority does not appear to have been assiduous in either the pursuit of the extradition between 2007 and 2010 or in providing entirely accurate information to the authorities here, this does not seem to me to deprive the request of substance or to give me cause to believe that the request is deprived of its integrity or is otherwise to be treated as being presented without good faith.

46. Finally, I do not find that the learned judge placed undue emphasis on the seriousness of the charges to be laid against the Appellant, a final point made by the Appellant here. The charges are obviously serious. The judge was entitled to give some weight to that factor along with the other points arising. He did no more that than, in my judgment.

47. In the end, I consider that the extradition would be neither unjust nor oppressive and, for the reasons given, I dismiss the appeal.

48. LADY JUSTICE HALLETT: I agree.

49. Mr Britton, I have to say that I am sure it is no comfort to the applicant but it is not a decision we have reached with any great enjoyment.

50. MR BRITTON: I understand. I am most grateful to the court. May I ask for an expedited judgment, my Lords?

51. LADY JUSTICE HALLETT: My Lord will obviously do his best but it depends on when the stenographer has time and he will do his best depending on his other commitments.

52. MR JUSTICE MCCOMBE: Without showing off, Mr Britton, it is normally my practice to do the transcripts the day they arrive but I do not promise that I will.

53. MR BRITTON: If it is not possible to get it as soon as possible, will it be possible to get a declaration that the period of 14 days will only start once we obtain the judgment?

54. LADY JUSTICE HALLETT: Mr Grandison, as it is technically a litigant in person?

55. MR GRANDISON: I do not think that is possible; I think it is when the appeal is formally dismissed. The court often has to deal with cases where the Appellant considers certifying a question without the full transcript and I think the court takes that into consideration. I do not think that you can have a declaration that the 14 days would not start running until the court transcript is released.

(A short aside with the shorthand writer)

56. LADY JUSTICE HALLETT: Anything we can do, once the shorthand writer has done it, if it can get to my Lord as soon as possible. By the sound of it there is not much else we can do other than that, Mr Britton. We will try and get it to you as soon as we can.

57. MR BRITTON: I understand. I am very grateful for your time.

58. LADY JUSTICE HALLETT: Thank you very much for you assistance and I repeat what we said yesterday: you could not have been of greater assistance to the applicant and we are indebted to you.

59. MR BRITTON: I am much obliged. I am grateful to your Lordships.

60. LADY JUSTICE HALLETT: Thank you, Mr Grandison, for your considerations.

61. MR GRANDISON: Thank you very much, my Lady.