Vaitkevicius v Prosecutor General's Office (Lithuania)

This is an appeal against a decision of District Judge Inyundo made on 12^th May 2017 to order the appellant’s extradition pursuant to an accusation European arrest warrant (“an EAW”) issued by the Deputy Prosecutor General of the Prosecutor's General Office of the Republic of Lithuania. The EAW was issued on 28^th June 2016 and certified by the National Crime Agency in July last year.

The warrant as drafted covered five offences. They revolve around offending associated with the position of bailiff which the appellant occupied in Lithuania until his dismissal by the Ministry of Justice in October 2014.

The appeal is concerned with what on the warrant is described as offence 1. The appellant did not pursue appeals in relation to offences 3 and 4 and the Judicial Authority has now conceded that it cannot uphold the warrant in relation to offences 2 and 5. Nonetheless, it is necessary for the purposes of the judgment not only to refer to the first offence, but to all the five offences on the warrant.

Before doing that, it must be noted that the original translation of the warrant was defective. Without going into the details, the first offence was a complete jumble and suggested very strongly that the offending concerned tax payments. Two days ago a more accurate translation of the first part of offence 1 has been provided. The result is that offence 1 now reads as follows:

The second offence is said to be the theft of a firearm which the appellant had as a bailiff. As I have indicated, the judicial authority no longer pursues that offending.

The third offence is an allegation that the appellant misappropriated an official stamp, receipt book, cash to the amount of some €300, five hard disks and a server and misappropriated money belonging to others (but held in the deposit account) of some €3951.73.

The fourth offence alleges that the appellant misappropriated €121,667. He is alleged to have transferred that money to his own account.

The fifth offence, which as I have said is no longer pursued, concerns what happened to the files that the appellant had when he was removed from office.

Further information was obtained from the Judicial Authority and was before the district judge. That related to the fifth offence.

The district judge was faced with various challenges to the appellant's extradition. Perhaps it is not surprising that he did not give detailed attention to the challenges which are now made to the warrant in this appeal under s.10 and s.64 of the Extradition Act 2003. Indeed, the challenge now made to offence 1 was not even raised before him.

In the course of his judgment, the District Judge said that the first four offences were allegations of misappropriation of money and/or of property during the course of the appellant's employment as a bailiff. No issue was taken that they were extradition offences. The only argument before him in this regard was whether the fifth offence constituted an extradition offence.

In the course of his judgment, the district judge said:

The district judge heard evidence from the appellant about his personal circumstances. He was in his 40s and of good character. He had been a bailiff in Lithuania, but had been involved in litigation against the Lithuanian state with regard to its failure to pay him. The appellant provided copies of judgments. The judge commented that the appellant was largely successful in the litigation. He noted that the appellant felt that he had become a target of bullying by government officials in Lithuania because of these legal disputes and that this atmosphere prompted the move to this country in April 2014.

The Judicial Authority provided further information on 28^th September 2017 after the matter was heard by the district judge. As I have explained, they provided a new translation of the first part of the warrant covering offence 1. They also provided information where they state that:

The further information continues that the decree dated 23^rd November 2012, mentioned in the warrant, was pursuant to which the appellant's enforcement costs held in his judicial officer's deposit account were frozen. It also states that on 14^th January 2013 the Vilnius City District Court ruled in a civil case brought by the appellant regarding annulment of the decree dated 23^rd November 2012 and rejected the his case. The further information adds that the appellant's appeal regarding annulment of the decree was subsequently rejected on appeal on 18^th April 2013 by the Vilnius Regional Court in a civil case and that the initial ruling of the District Court remained effective.

Yesterday, yet further information was received from the judicial authority. That was a result of the CPS, representing the judicial authority, having posed a number of questions, two of which were as follows:

To those questions, the judicial authority answered as follows:

The issue before me is whether the judicial authority has established to the criminal standard that the offending alleged in offence 1 would constitute a criminal offence in this jurisdiction. Pursuant to s.10 of the Extradition Act 2003 the district judge, and now this court, has to be satisfied that each offence is an extradition offence. In an accusation warrant case, as this is, the definition of extradition offence is set out in s.64 of the Act.

As is well-known, as a result of Norris v United States of America [2008] 1 AC 920 assessing dual criminality involves considering the conduct in the warrant and whether that conduct would constitute an offence here. The court is not concerned with whether the elements of the offence in Lithuania correspond to an offence in this jurisdiction. As regards mens rea, while inferences can be drawn in relation to it, the facts must be such as to impel that inference. That was established in Assange v Swedish Authority [2011] EWHC 2849 (Admin).

For the judicial authority, Miss Brown has, with her characteristic clarity and skill, attempted to construct from both the warrant and the further information conduct which would constitute the offences of theft, contempt or misconduct in public office in this jurisdiction.

To put it in broad terms she contends that the warrant, coupled with the further information, provides particulars of the appellant as a judicial officer – who was eventually removed by the Ministry of Justice - having a judicial officer's deposit account containing monies which were there as a result of his official duties. Those monies were then frozen in 2012. In her submission, they must have been frozen for a reason. Notwithstanding the fact that the account was frozen, the appellant proceeded to dissipate those funds. In other words, he was dissipating funds that were not only subject to a freeze order, but funds which belonged to other persons.

Miss Brown highlights that the warrant, both in its original and now newly translated form, begins in relation to the first offence with the phraseology that the appellant had misappropriated property belonging to another. She also point out that after setting out the particulars of the five offences, the EAW sets out provisions from the Lithuanian penal code, in particular, Art.183, misappropriation of property, and Art.228, abuse of office.

Consequently, she submits, the situation is clear and this is underlined by the answer to question (1) provided yesterday, namely that the money being dissipated was not the appellant’s money. Moreover, the further information received on 28^th September 2017 makes clear that the money was "property owned by the state". So in Miss Brown’s submission here was dissipation of other people's money committed by a judicial officer, a court bailiff, occupying a public office. Albeit that the account may have contained other money, for example, monies to pay the bailiffs, nonetheless, I could be satisfied to the criminal standard that there was alleged theft, misconduct in public office or contempt of court by breach of the freeze order.

I have not found this an easy case, but I am clear that the judicial authority has not satisfied me to the criminal standard that this conduct would constitute offending in this jurisdiction.

First, there is the nature of the account which was frozen. From the descriptions in the warrant, it seems that the money could have been, as the phraseology in the warrant describes it, expenses of the bailiff. This could mean the appellant’s money. Indeed, the description in the first part of the warrant in relation to the first offence makes plain that the account contained monies earned by the appellant. In other words, it would seem that the account was being used for a multitude of purposes including the payment of taxes. Again, that is contained in the early part of setting out offence 1 in the warrant where, it would seem, there is a description of an attempt being made to recover money which is owing to the state tax inspectorate.

Secondly, there is the nature of withdrawals from the account. There are two aspects to this. First, the money being withdrawn was, at least in part, expenses of the bailiff, to use the term in the translated warrant. On one reading, what seems to have led to the freeze order was that the appellant was subject to taxes which had not been paid and the account was frozen so as to recover them. The questions posed by the CPS in this regard did not focus on the character of the money being withdrawn, but rather the nature of the funds themselves.

More importantly, the withdrawals occurred at a time when, from the further information of 28^th September 2017, the appellant was in dispute about the November 2012 decree. That led to his litigating in the Vilnius City District Court, which led to the ruling of 14^th January 2013, and on appeal in the Vilnius Regional Court, which led to its ruling of 18^th April 2013.

To put it another way, the withdrawals which are said to be in breach of the freeze order occurred at a time when the appellant seemed to have a genuine dispute with the Lithuanian authorities about some, at least, of these monies. It will be recalled that the district judge referred to the enmity between the appellant and the Lithuanian authorities. For present purposes, the crucial point is that it is not possible for me to draw the inference of dishonesty from the facts in the manner required by Assange v Swedish Judicial Authority.

Miss Brown contended that as well as theft, the appellant could be said to be accused in this jurisdiction of misconduct in public office or contempt in acting contrary to the restraint order.

As far as misconduct in public office is concerned, the threshold is very high, as explained in the judgment of Pill LJ in Attorney General's Reference No. 3 of 2003 [2005] QB 73 at para.56 where his Lordship said that there had to be a serious departure from proper standards before the criminal offence was committed. Even could I infer that the appellant occupied “public office” as a result of his dismissal by the Ministry of Justice, it does not seem to me that this conduct can be alleged to be a serious departure from proper standards, when the appellant was in serious dispute with the Lithuanian authorities, In short, I am not satisfied to the criminal standard that the conducted alleged, if committed here, would surmount the high threshold for criminality which Pill LJ identified in Attorney General's Reference No. 3 of 2003.

As far as contempt is concerned, the accusation is in relation to the breach of a restraint order. That restraint order was imposed administratively, albeit that Miss Brown contends that the rulings of the Vilnius District Court and the Vilnius Regional Court in 2013 could be said to have given it the character of a court order. In Director of the Serious Fraud Office v O'Brien [2014] 2 WLR 902 at para.43, the Supreme Court found that the breach of a restraint order under s.41 of the Proceeds of Crime Act is not in itself a criminal offence. Behaviour much more serious than the breach of an administrative restraint order is necessary to constitute criminal conduct here.

In conclusion, therefore, I find that offence 1 does not constitute an extradition offence pursuant to s.10 and 64 of the 2003 Act. I discharge the appellant in relation to that offence.