Derevianko v Government of Lithuania & Anor [2005] EWHC 1212 (Admin)

Case No CO/804/2005[2005] EWHC 1212 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 25th May 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
MR JUSTICE MITTING
Between
DEREVIANKOClaimant-v-
Between
THE GOVERNMENT OF LITHUANIADefendantTHE GOVERNOR OF HM PRISON BRIXTONDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JOHN HARDY (instructed by Messrs Hallinan, Blackburn Gittings & Nott) appeared for CLAIMANTMR JAMES HINES (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MITTING: The claimant is aged 50 and a citizen of Lithuania. From 1990 until 1996 he was the executive director of a state-owned enterprise called Aleksotas. It appears that the business was of some substance. It had in its heyday a factory and shops and a number (unknown) of employees. It was said to be successful at the start, but suffered a severe downturn on the departure of Russian forces in 1993. In December 1994 its bookkeeper ceased work and the claimant assumed responsibility for the maintenance of the accounting records. He failed to do so, with the consequence that from January 1995 until April 1996 the books of the company were in disarray. Expenditure was not recorded, cash registers were not operating in the company shops, receipts and expenses were not recorded in a cash book, and the VAT records were not maintained. The claimant was charged with two offences contrary to Articles 322 and 325 of the Lithuanian Criminal Code: negligent bookkeeping, contrary to Article 322, and evasion of tax, contrary to Article 325.[2]On 7th October 1998 at Kaunas City District Court the claimant was convicted on his own admission of an offence contrary to Article 322, but acquitted of an offence contrary to Article 325. The prosecutor's statement to the court acknowledged that the crime was "not considered as major", and that the claimant was of previous good character. The prosecution asked for a sentence of "correctional labour" of 24 months without a fine and a deduction of 20 per cent of his annual income during that period. Corrective labour is not unpaid or punitive work, but working without accruing employment rights and paying over to the state a fixed proportion of the income earned as a result of performing that work. The sentence actually imposed was 12 months' "correctional labour" with a deduction of 20 per cent of income payable monthly.[3]In the event the claimant performed only one month of corrective labour. Investigations by the Lithuanian authorities revealed that he had worked successively for two joint stock companies from October 1998 until September 1999, but despite promising to pay 20 per cent of his earnings himself on 14th December 1998, he did so on only one occasion. He was warned that he must suffer his punishment, but in the view of the Lithuanian authorities went into hiding and evaded it. He left Lithuania for the United Kingdom on an unknown date in late 1999.[4]On 27th October 1999 the Corrective Labour Inspectorate applied to Kaunas City District Court to substitute 11 months' imprisonment for the unserved period of corrective labour. The claimant was required to attend court on 3rd February 2000, but did not do so. A fresh summons was issued on 10th June 2000, and on 5th July 2000 the same district judge who had sentenced him at Kaunas City District Court substituted a sentence of 11 months' imprisonment for the unserved corrective labour, under Articles 29 and 411 of the Lithuanian criminal code. On 21st July 2000 the Lithuanian authorities learned that the claimant was in the United Kingdom. On 20th December 2000 he provided his address to the Lithuanian Embassy in London. On 4th July 2001 the Lithuanian authorities made a request for his extradition. There followed a lengthy period before the Secretary of State issued his authority to proceed on 28th April 2004.[5]Such explanation as there is for that period of delay appears to be that a fraction of that time was spent by Lithuanian authorities responding to requests for evidence and information by the Secretary of State. The claimant was arrested on 8th June 2004. The committal proceedings took place at Bow Street Magistrates' Court on 14th September 2004 and the claimant was committed on bail to await the decision of the Secretary of State.[6]By a claim form issued on 9th February 2005, the claimant applies for a writ of habeas corpus to this court on essentially three grounds. First, the offence in respect of which expedition was sought was not an "extradition crime" within section 2(1)(a) of the Extradition Act 1989; second, the claimant should be discharged pursuant to section 11(1)(a) of the 1989 Act; and, third, he should be discharged pursuant to section 11(1)(b). It is fair to observe that, in the course of his submissions, Mr Hardy for the claimant did not pursue the first ground as his foremost ground, but because it raises a question of principle I propose to address it on the basis of the arguments foreshadowed in the skeleton argument.[7]Section 2(1)(a) of the 1989 Act provides:
"In this Act, except in Schedule 1, 'extradition crime' means: "(a) conduct in the territory of a foreign state which, if it occurred in the United Kingdom, would constitute an offence punishable with imprisonment for a term of 12 months and which, however described in the law of the foreign state is so punishable under that law;"
[8]The offence with which the claimant was convicted on 7th October 1998 is "negligent bookkeeping" contrary to Article 322 of the Lithuanian Criminal Code, which provides:
"Negligent bookkeeping of an enterprise or failure to keep the documents if it made partially or completely impossible to establish the true activities of the enterprise, the results of its commercial, economic or financial state, or assess its property and assets shall be punished by imprisonment for a term of up to one year, or by corrective labour and a fine, or without the fine, or by a fine only."
[9]The equivalent offence in England and Wales is failing to keep the accounting records of a company contrary to section 221(5) of the Companies Act 1985, for which the maximum sentence is two years' imprisonment. It follows, in my view, that if the offence in respect of which extradition is sought is the offence contrary to Article 322, the condition specified in section 2(1)(a) of the Extradition Act 1989 is satisfied. A sentence of imprisonment "for a term of up to one year" necessarily imports the possibility that a sentence of imprisonment of exactly one year can be imposed. On that ground, the minimum condition specified in section 2(1)(a) is plainly satisfied.[10]The claimant's contention as advanced in the skeleton, although not pressed by Mr Hardy, is that the "offence" for which he was sentenced to 11 months' imprisonment is not the original offence, but his failure to fulfil the corrective labour imposed on him by the court which sentenced him for that offence. Imprisonment was imposed under Articles 29 and 411 of the Lithuanian Criminal Code, the relevant parts of which provide:
"29. Corrective labour without imprisonment shall be imposed for a term from two months to two years and shall be performed on the basis of the Court Judgment at the convicted persons's place of work. "
The period of corrective labour shall be calculated in months ... "If a person sentenced to corrective labour without imprisonment, persistently evades from the service of punishment the Court may change the remaining period of punishment into imprisonment for the same period of time."[11]Article 411:
"Changing of Corrective Labour and a Fine into Other Kinds of Sentences ... "
The corrective labour is changed into imprisonment pursuant to Article 29 paragraph 7 of the Criminal Code of the Republic of Lithuania by the court on the basis of the application submitted by the agency of internal affairs."[12]Neither Article creates an offence. Taken together, they provide for the power to change a sentence of corrective labour to a sentence of imprisonment when, as was found here, the person sentenced to corrective labour "persistently evades". It is not an offence under the Lithuanian Criminal Code persistently to evade a term of corrective labour. Such conduct has, potentially, the result that the court will impose a term of imprisonment in lieu, but that does not convert it into conduct amounting to an offence. The position is the same in principle as in English law; see the power of the Crown Court on proof to its satisfaction that an offender has failed to comply with the requirements of a community order under paragraph 10(1)(b) of the schedule 8 to the Criminal Justice Act 2003. The offence is therefore that for which the claimant was convicted on 7th October 1998 and not the order made on 5th July 2000.[13]I add in passing that the condition specified in Article 2.1 of the European Convention on extradition, namely that in a case where conviction and sentence have occurred in the territory of the requesting party the punishment awarded must have been for a period of at least four months, is satisfied. I turn now to the second and thirds grounds, which can be taken together.[14]Section 11(3) of the Extradition Act 1989 provides relevantly:
"Without prejudice to any jurisdiction of the High Court apart from this section the Court shall order the applicant's discharge if it appears to the court in relation to the offence ... in respect of which the applicant's return is sought that: "(a) by reason of the trivial nature of the offence, or "(b) by reason of the passage of time since he ... became unlawfully at large ... it would having regard to all the circumstances be unjust or oppressive to return him."
[15]The claimant contends that it would be oppressive to return him on the grounds of triviality and/or the passage of time since he became unlawfully at large. It is not open to the claimant to argue that the offence of negligent bookkeeping contrary to Article 322 is trivial. That question is exclusively determined by the severity of the available maximum punishment. If it is 12 months or more in both jurisdictions, it is not trivial. Triviality must relate to the facts of the offending, as the editors of Nicholls, Montgomery & Knowles on The Law of Extradition and Mutual Assistance correctly state in paragraph 8.22.[16]The facts of this offence were not trivial. The books of a trading entity of some substance were not kept properly for 15 months. The sentence imposed on a man of previous good character on a plea of guilty was a significant sentence. For those reasons, the challenge on the ground of triviality in my view must fail.[17]As to delay, the relevant period is acknowledged to be that from the date on which the claimant became unlawfully at large, that is to say from the date on which the Kaunas District Court imposed the term of imprisonment on 5th July 2000 until today; a period of four years and ten and a half months.[18]There is a period of substantially unexplained delay from the making of the request on 4th July 2001 until the authority to proceed on 28th April 2004, and in particular the period of two years during that time when nothing whatever appears to have occurred within the Home Office. It is hard to understand how, in a simple case such as this, it can have taken that long to satisfy the Secretary of State that the authority to proceed should be given. No blame can be attached to the Lithuanian authorities, who responded promptly to the requests for further information that were made.[19]The test is set out in Kakis v Republic of Cyprus [1978] 1 WLR 779, in the speech of Lord Diplock at page 783C:
"As respects delay which is not bought about by the acts of the accused himself, however, the question of where the responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect, or rather the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."
[20]There is no reason in principle why for the words "before the trial of the accused", there should not be substituted words relevant in the case where conviction and sentence have occurred.[21]In this case there can be no doubt that the consideration of the matter by the Secretary of State did not take place with ordinary promptitude. Although Mr Hines has drawn to our attention that no time limit is imposed upon the Secretary of State's consideration of the request, it would be unhappy if it were to be thought that that period could be indefinite without, in a case of oppression, giving any opportunity for this court to put the matter right under section 11(3)(b). Inordinate delay by the Secretary of State is, in my view, clearly a circumstance to which the court can have regard under that section.[22]The claimant has undoubtedly established a personal and family life in the United Kingdom since his arrival, but on the limited facts disclosed in the witness statement of Sian Williams of 8th February 2005 and 19th May 2005, including the character references annexed to the second statement, it is impossible in my view to say that it would be oppressive to return the claimant to Lithuania to serve his sentence any more than it would have been to require a sentenced absconder, whose whereabouts were known to the authorities in the United Kingdom, to serve his sentence in similar circumstances.[23]There is simply not the material here which, reflecting the words of Lord Diplock in Kakis, demonstrates an effect such that it would be oppressive to return him. Accordingly, in my view, this claim for habeas corpus should be refused.

LORD JUSTICE BROOKE: I agree. The application is therefore dismissed.