Kodos (aka Jetmir Olltari) v Prosecutor General's Office of the Republic of Lithuania [2010] EWHC 897 (Admin)

Case No CO/12374/2009[2010] EWHC 897 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2010
Before
LORD JUSTICE RICHARDSMR JUSTICE CRANSTON
Between
Andreas Kodos (aka Jetmir Olltari)AppellantProsecutor General’s Office ofRespondentthe Republic of LithuaniaRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Rachel Barnes (instructed by Faradays) for AppellantLauren Rafter (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date: 15 March 2010
JudgmentLord Justice Richards :
[1]This is an appeal by Andreas Kodos (aka Jetmir Olltari) against an extradition order made by District Judge Riddle at the City of Westminster Magistrates’ Court on 19 October 2009 pursuant to a European Arrest Warrant (“the warrant”) issued by the respondent authority, the Prosecutor General’s Office of the Republic of Lithuania, on 13 August 2009. Lithuania is a category 1 territory and the case falls under Part 1 of the Extradition Act 2003 (“the EA 2003”).[2]The appellant’s counsel, Miss Rachel Barnes, who did not appear below, relies on grounds that were not canvassed before the district judge. They relate to the question whether the offences specified in the warrant are extradition offences and to the compatibility of extradition with article 7 ECHR.

The warrant

[3]The appellant is sought for the purposes of prosecution in respect of a total of 22 offences of people trafficking, earning from the prostitution of another person and engaging another person in prostitution. The applicable statutory provisions are three articles of the Criminal Code of the Republic of Lithuania: Article 147 relates to people trafficking, Article 307 to earning from prostitution of another person, and Article 308 to engaging another person in prostitution. The warrant sets out two versions of each article, namely a version dated 26 September 2000 and a later version dated 23 June 2005 (in the case of Article 147) or 22 June 2006 (in the case of Articles 307 and 308).[4]Article 147 is headed “Trafficking in Human Beings”. The original version provided:
“Any person who seeking to gain material gain or any other personal benefit sell[s], purchases or in any other way transfers or acquires a person shall be punished by imprisonment for a term of up to eight years.”
The later version provides:
“1. Any person who sells, purchases or in any other way transfers or acquires a person, or recruits, transports or keeps a person in captivity by using physical violence or threats, or depriving in any other way of the possibility to resist, or by making use of the victim’s dependency or vulnerability, or by using deception, or by paying money to or providing another person who actually controls the victim with other material gain, if the offender is aware of or seeks the victim to be involved in prostitution, or to gain profit from prostitution of that person, or seeks the person to be exploited in pornography or forced labour shall be punished by imprisonment for a term from two to ten years. 2. Any person who commits offence specified in Paragraph 1 against two or more victims, or while participating in organised group, or seeking to acquire organ, tissue or cells of the victim shall be imprisoned for a term from four to twelve years.”
[5]Article 307 is headed “Earning from Prostitution of Another Person”. There is no material difference between the two versions, each of which provides:
“1. Any person who earns from prostitution of another person, or procures persons for prostitution shall be punished by a fine or restriction of liberty, or detention, or imprisonment for a term of up to four years.”
[6]Article 308 is headed “Engaging in Prostitution”. Again there is no material difference between the two versions, each of which provides in paragraph 2:
“2. Any person who engages in prostitution another person who is dependent on him economically, through employment or in any other way, or engages another person in prostitution by using physical and mental coercion or deceit, or who engages a juvenile in prostitution by any other means shall be punished by imprisonment for a term from two to seven years.”
[7]The offences in question concern eight different women. The warrant contains a description of the circumstances in which the offences were committed in respect of each of those women. It is sufficient for present purposes to set out the full description given in respect of the first two (with original emphasis):
“Jetmir Olltari also known as Andreas Kodos is suspected that seeking to gain profit, acting in an organized group with Virgilijus Monkus and Rasa Lisauskaite, with V. Monkus leading the group, under pre-agreement to recruit, buy and sell women for prostitution in the United Kingdom, i.e. to commit grave and especially grave crimes, he bought and transferred Rasa Gudomskiene: In spring 2003, at the date being not established during the pre-trial investigation, in the house of Rasa Gudomskiene’s parents in the village of Lipikiskiai, region of Kaunas, V. Monkus having taken advantage of Rasa Gudomskiene’s vulnerability i.e. her difficult material status and having deceitfully indicated another purpose of the trip and having promised a job in the kitchen (in cafes) and accommodation in his place, recruited Rasa Gudomskiene to go to the United Kingdom. He then bought her a ticket to travel from Kaunas to London, and took her to the bus station; Rasa Lisauskaite and an unidentified person met the victim Rasa Gudomskiene in Victoria Coach Station in London and brought her to R. Lisauskaite’s rented flat the address of which was not established during the pre-trial investigation. Jetmir Olltari also known as Andreas Kodos together with R. Lisauskaite settled with V. Monkus by sending at least 2500 pounds via ‘Western Union’, i.e. he bought Rasa Gudomskiene seeking to engage her in prostitution and gain profit from her prostitution. Therefore, he committed criminal offence which specified in Article 147 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000 …). Seeking to gain profit, while participating in an organized group with Virgilijus Monkus, Rimantas Grakalskis, Lina Buivydaite and Rasa Lisauskaite, with V. Monkus and R Grakalskis leading the group, under pre-agreement to recruit, buy and sell women for prostitution in the United Kingdom, i.e. to commit grave and especially grave crimes, Jetmir Olltari also known as Andreas Kodos bought Lina Monkute, kept her in captivity, engaged her in prostitution and gained profit from her prostitution: On 25 October 2003, while implementing instructions of V. Monkus and R. Grakalskis to send as many girls as possible to the United Kingdom to work as prostitutes, Lina Buivydaite having taken advantage of victim Lina Monkute’s vulnerability namely, her difficult material status, and having deceitfully promised much money to be earned from prostitution, persuaded the victim and recruited her to go to the United Kingdom to work as a prostitute and organized victim’s travel to London – helped her to get the passport and paid the stamp-duty, and bought her the ticket to the United Kingdom. Jetmir Olltari also known as Andreas Kodos met the victim in London and took her to the flat rented by him and R. Lisauskaite the address of which was not established during the pre-trial investigation, and took identity documents from the victim. Jermir Olltari also know as Andreas Kodos and R. Lisauskaite settled with V. Monkus, R. Grakalskis and L. Buivydaite by sending at least 2500 pounds via ‘Western Union’, i.e. he bought Lina Monkute seeking to engage the victim in prostitution and gain profit from her prostitution; in addition, by using mental coercion and threats against the victim, seeking to gain profit from L. Monkute’s prostitution, he was keeping her in captivity in his rented flat and during the period from 25 October 2003 to 29 January 2005 in the places which were not established in the pre-trial investigation he engaged her in prostitution and gained income from her prostitution. Therefore, he committed criminal offences which are specified in Article 147 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000 …), Paragraph 1 of Article 307 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000 …) and Paragraph 2 of Article 308 of the Criminal Code of the Republic of Lithuania (wording of 26 September 2000 …).”
[8]The circumstances described in respect of the remaining six women are broadly similar to those described in respect of Lina Monkute, and in each case it is alleged that the appellant committed offences under Articles 147, 307 and 308 of the Criminal Code. In the case of the last two women, however, reference is made to the later rather than the earlier version of each article, although the conduct commenced at a date prior to the coming into force of the later versions.

Extradition offence

[9]Section 10 of the EA 2003, as amended by the Extradition Act 2003 (Multiple Offences) Order 2003, applies where a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing. It provides in material part:
“10. … (2) The judge must decide whether any of the offences specified in the Part 1 warrant is an extradition offence. (3) If the judge decides the question in subsection (2) in the negative in relation to an offence, he must order the person’s discharge in relation to that offence only. (4) If the judge decides that question in the affirmative in relation to one or more offences he must proceed under section 11.”
[10]It was submitted by Miss Barnes, and not disputed by Miss Rafter for the respondent authority, that the burden is on the authority to show to the criminal standard that the offences are extradition offences. Miss Barnes cited Mitoi v Government of Romania [2006] EWHC 1977 (Admin), at [17] and [19]. That case concerned the purely factual question whether the appellant had deliberately absented himself from his trial. The question here is one of law. I have no difficulty in accepting that the burden is on the authority to satisfy the judge that an offence is an extradition offence, but I doubt whether the standard of proof has any material role in the exercise. However, nothing turns on the point.[11]Section 64 of the EA 2003 applies for the purpose of determining, in an accusation case such as this, whether the offences specified in the warrant are extradition offences. It provides in material part:
“64.(1) This section applies in relation to conduct of a person if - (a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct … (2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied – (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment. (3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied – (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law). (4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied: (a) the conduct occurs outside the category 1 territory; (b) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law); (c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.” (a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct … (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment. (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law). (a) the conduct occurs outside the category 1 territory; (b) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law); (c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.”
[12]Before considering counsel’s submissions, it is also helpful to refer to certain offences under English law to which reference is made in those submissions. Regard should strictly be had to the law both prior to and after the coming into force of the Sexual Offences Act 2003 (“the SOA 2003”), since the conduct described in the warrant spans that period. But it is sufficient to focus on offences under that Act: nothing is said to turn on the difference between those offences and the equivalent offences under earlier legislation. Of particular relevance are sections 52, 53 and 59 of the SOA 2003:
“52. Causing or inciting prostitution for gain (1) A person commits an offence if - (a) he intentionally causes or incites another person to become a prostitute in any part of the world, and (b) he does so for or in the expectation of gain for himself or a third person. (2) A person guilty of an offence under this section is liable – … (b) on conviction on indictment, to imprisonment for a term not exceeding 7 years. 53. Controlling prostitution for gain (1) A person commits an offence if – (a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and (b) he does so for or in the expectation of gain for himself or a third person. (2) A person guilty of an offence under this section is liable – … (b) on conviction on indictment, to imprisonment for a term not exceeding 7 years. 59. Trafficking out of the UK for sexual exploitation (1) A person commits an offence if he intentionally arranges or facilitates the departure from the United Kingdom of another person (B) and either – (a) he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or (b) he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence. (2) A person guilty of an offence under this section is liable – … (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.” (a) he intentionally causes or incites another person to become a prostitute in any part of the world, and (b) he does so for or in the expectation of gain for himself or a third person. … (b) on conviction on indictment, to imprisonment for a term not exceeding 7 years. (a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and (b) he does so for or in the expectation of gain for himself or a third person. … (b) on conviction on indictment, to imprisonment for a term not exceeding 7 years. (a) he intends to do anything to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence, or (b) he believes that another person is likely to do something to or in respect of B, after B’s departure but in any part of the world, which if done will involve the commission of a relevant offence. … (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.”
[13]By section 60(1), “relevant offence” in section 59 means inter alia an offence under Part 1 of the SOA 2003 (which includes sections 52 and 53) or“anything done outside England and Wales and Northern Ireland which is not [such] an offence … but would be if done in England and Wales or Northern Ireland”. By section 60(2) as originally enacted, section 59 applied to anything done(a) in the United Kingdom, or(b) outside the United Kingdom by a United Kingdom company or an individual to whom subsection (3) applied (namely, British citizens and persons with various other forms of British status). As a result of an amendment made to section 60(2) by the UK Borders Act 2007, section 59 now applies “to anything done whether inside or outside the United Kingdom”.[14]With that introduction, I turn to the principal submissions of counsel. Miss Barnes submitted that the court must look at each of the offences in respect of which the appellant’s extradition is sought by the warrant, and ask whether the conduct alleged to constitute such offence meets the conditions in section 64. That gives effect to section 10, as amended, whilst also respecting the conduct-based approach approved in Norris v Government of the United States of America [2008] 1 AC 920.[15]She submitted that the conduct alleged in relation to the appellant occurred entirely in England. As to the trafficking offence, the appellant was not involved in securing the departure of the women from Lithuania but dealt with them only on their arrival in England and sent payment for them from England. So too in relation to the offences of engaging the women in prostitution and earning from their prostitution, the appellant’s actions all took place after the arrival of the women in England.[16]On that basis Miss Barnes submitted that none of the relevant subsections of section 64 applies and that the offences are therefore not extradition offences. Since the conduct occurred in the United Kingdom and not in Lithuania, neither subsection (2) nor subsection (3) can apply. As to subsection (4), condition(a) is satisfied but conditions (b) and (c) are not: i) Condition (a) is satisfied because all the conduct took place outside Lithuania. ii) Condition(b) is not satisfied because, for the conduct to be punishable under the law of Lithuania, it would have to be shown that these offences were extraterritorial offences under the law of Lithuania, but that is not established either by the warrant or by any further information supplied by the respondent authority. iii) Condition(c) is not satisfied for the following reasons. So far as people trafficking is concerned, the relevant offence under English law for the purposes of the exercise of transposition is section 59 of the SOA 2003; but the appellant’s conduct, mutatis mutandis, would not constitute an offence under section 59 because he would not have “arranged or facilitated the departure from the United Kingdom” of any of the women identified in the warrant; his conduct would have been limited to dealing with them in Lithuania. As regards engaging the women in prostitution and gaining income from their prostitution, the relevant offences under English law are sections 52 and 53 of the SOA 2003; but the appellant’s conduct, mutatis mutandis, would not constitute an offence under either of those sections because the conduct would all have occurred in Lithuania and neither section is in that respect extraterritorial in its application: the sections apply to acts done within the jurisdiction (albeit in relation to prostitution in any part of the world); there is no equivalent of section 60 extending their application to acts done outside the United Kingdom.[17]For the authority, Miss Rafter submitted that the warrant alleges a joint enterprise, making clear that the appellant was a member of a group acting pursuant to an agreement between the individuals involved. It details both what the group did in Lithuania, by way of arranging for the transfer of the women to the United Kingdom for the purpose of prostitution, and what it did in the United Kingdom following their arrival there. In meeting the women and sending money for them, the appellant was acting as part of the group. He was likewise acting as part of the group when he engaged them in prostitution and gained income from their prostitution. The allegations against him are not confined to his own individual actions in the United Kingdom but cover the entirety of the actions of the group of which he was a member.[18]On that basis Miss Rafter accepted that subsection (2) of section 64 does not apply, because part of the conduct occurred in the United Kingdom, but she submitted that the relevant subsection of section 64 is subsection (3), not subsection (4), and that the offences all meet the conditions of subsection (3): i) Condition(a) is met, in that some (though not all) of the conduct occurred in Lithuania. ii) Condition(b) is satisfied because the conduct would constitute an offence under English law if it occurred in England. For this purpose the whole of the conduct should be considered, without attempting a breakdown attributing particular aspects of the conduct to specific offences. The conduct taken as a whole would constitute an offence of trafficking under section 59 of the SOA 2003 if it occurred in England. Even if the conduct of engaging the women in prostitution and gaining an income from their prostitution is considered separately, it would constitute an offence under section 52 and/or section 53 of the SOA 2003 if it occurred in England. The issue of extraterritoriality does not arise, but if it did it would occasion no difficulty once the appellant’s involvement is seen to be as a party to a joint enterprise covering things done in both jurisdictions. iii) To meet condition(c) it is sufficient that the warrant specifies that the offences are punishable in Lithuania with imprisonment for a term of at least 12 months. The condition is concerned with the level of punishment, not with the issue of jurisdiction. But in any event there is again no problem with regard to extraterritoriality once it is seen that the conduct described in the warrant is a joint venture covering things done in both jurisdictions.[19]For my part, I accept the thrust of Miss Rafter’s submissions and consider that the offences all qualify as extradition offences by virtue of section 64(3). In my judgment, Miss Barnes’s argument proceeded on a mistaken premise in singling out things done by the appellant himself in England and failing thereby to give full effect to the description of the conduct in the warrant. That description makes clear that the appellant is alleged to have been a party to a joint enterprise encompassing all the conduct in question. For example, in relation to the first woman, Rasa Gudomskiene, it starts by referring to the appellant “acting in an organized group” with named individuals, “under pre-agreement to recruit, buy and sell women for prostitution in the United Kingdom”. The various steps taken in Lithuania to secure the woman’s transfer to the United Kingdom for the purposes of prostitution are included not just by way of narrative background but as an integral part of the conduct which is alleged to constitute the offence committed by the appellant. The conduct relied on in relation to him is not limited to the “buying” of the woman by sending money from England to Lithuania. The position is the same in relation to the offences concerning each of the other women, where the description of the conduct contains similar language as to pre-agreement and participation in an organised group. In their case the conduct encompassed within the joint enterprise extends to the acts of engaging the women in prostitution and gaining income from their prostitution. This brings in additional offences, but not by way of separate matters relevant to the appellant alone: those acts, too, are integral parts of the overall arrangement to which he is a party and which involved things done in Lithuania as well as in England.[20]It follows from the above that there is no difficulty in concluding that condition (a) of section 64(3) is satisfied. It needs only to be shown that part of the conduct occurred in Lithuania: see Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1. In this case some of the acts done pursuant to the joint enterprise were self-evidently done in Lithuania. It is therefore unnecessary to explore such niceties as whether the transfer of money by the appellant was conduct occurring partly in Lithuania (a view supported by Hosseini & Others v Head of the Prosecution Department of the Courts of Higher Instance, Paris, France [2006] EWHC 1333 (Admin)) or to rely on the point that acts done elsewhere will have constituted conduct in Lithuania so long as their intended effect was to bring about harm there (see Cando Armas, above, para 40).[21]As to condition (b), it simply requires one to assume that the conduct alleged in the warrant occurred in England and to ask whether, on that hypothesis, it would constitute an offence under English law (see Hosseini & Others, above, para 32). In this case the conduct alleged in the warrant would plainly constitute one or more offences under English law, especially under section 59 of the SOA 2003 but also under sections 52 and 53 of that Act. Even if condition (b) of section 64(3) did require a similar exercise of transposition to that required by the differently worded condition (c) of section 64(4), I agree with Miss Rafter’s submission that there would be no difficulty about extraterritoriality in this case because the joint enterprise encompassed things done in both jurisdictions.[22]Condition (c) is concerned only with the question of punishment, requiring consideration of the level of sentence which may be imposed under the law of Lithuania (see Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31, para 55); and the information in the warrant is sufficient to satisfy the condition. The condition does not call for investigation of the details of the law of Lithuania, including its territorial scope. In any event no issue of extraterritoriality can sensibly arise since the satisfaction of condition (a) means that at least some of the conduct occurred in Lithuania; and even if the issue of extraterritoriality were in some way relevant, it would occasion no difficulty on the facts of this case for the reasons already given.[23]I should mention that I have also considered other authorities to which we were referred by counsel, including Johirul Islam v Paphos Disctrict Court of Cyprus [2009] EWHC 2786 (Admin), but have found nothing in them which is either particularly helpful or inconsistent with the analysis given above.[24]Accordingly, I would reject the appellant’s case on the issue of extradition offence.

Article 7 ECHR

[25]The second issue is much shorter. Article 7 ECHR prevents the imposition of a heavier penalty than was applicable at the time the criminal offence was committed. I have referred above to the fact that the later version of Article 147 of the Criminal Code of the Republic of Lithuania carries a higher maximum sentence than the earlier version. In relation to two of the eight women in respect of whom the allegations are made, the warrant refers to the later version rather than the earlier version, even though the conduct alleged occurred in part during the currency of the earlier version. It follows, submitted Miss Barnes, that in those two cases there is a risk of the appellant having imposed on him, in breach of article 7, a heavier penalty that was applicable at the time the offences were committed.[26]The response by Miss Rafter is simple. The mere existence of a higher maximum penalty is not sufficient to breach article 7. What is important is that the actual sentence imposed is not heavier than that which could have been imposed under the provisions in force at the time of the offence (see R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2278, para 21). Lithuania is a signatory to the ECHR and there is nothing to show that a court in Lithuania will fail to abide by its obligations under article 7 when passing sentence.[27]I accept Miss Rafter’s response. There is nothing in the warrant or in any other material before this court to support the view that, in the two cases where the warrant relies on the later rather than the earlier version of Article 147, the Lithuanian court is liable to impose a higher sentence than the maximum that could have been imposed at the time when the offences were committed. In my judgment, the appellant’s case on this issue is without substance.

Conclusion

[28]For the reasons given, I take the view that the fresh grounds advanced on this appeal do not help the appellant. No proper basis has been put forward for interfering with the extradition order made by the district judge. I would dismiss the appeal. Mr

Justice Cranston :

[29]I agree.

Cited in 3 later judgments