Proskinas v Ministry of Justice of the Republic of Lithuania [2012] EWHC 4126 (Admin)

Case No CO/11408/2012[2012] EWHC 4126 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 4 December 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE KEITH
Between
MAKSIMAS PROSKINASAppellantv
Between
MINISTRY OF JUSTICE OF THE REPUBLIC OF LITHUANIARespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr S Fidler (of Stephen Fidler & Co) appeared for AppellantMr D Sternberg (instructed by the CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE KEITH: On 18 October 2012, the appellant, Makimsas Proskinas, was arrested pursuant to a European arrest warrant issued by the Ministry of Justice in Lithuania. The warrant had been certified by the Serious and Organised Crime Agency on 10 October. An extradition hearing took place at the City of Westminster Magistrates' Court on 19 October, when District Judge Snow ordered that Mr Proskinas be extradited to Lithuania. He now appeals against that order, Ouseley J having ordered that the appeal could be heard by a single judge.[2]The warrant issued for Mr Proskinas' extradition to Lithuania related to various offences for which he had been sentenced to a total of 3 years' imprisonment. Before he had completed serving his sentence, he was released subject to various conditions. He failed to comply with those conditions, and he was ordered to serve the balance of his sentence, amounting to 10 months and 15 days. He has not yet served the balance of his sentence.[3]Lithuania has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003. Accordingly, Mr Proskinas's extradition is governed by Part 1 of the Act. The sole ground of appeal relates to the fact that at the date of the hearing on 19 October Mr Proskinas was on licence following his release from prison on 24 May after serving part of a sentence of 12 months' imprisonment passed at Newcastle-upon-Tyne Crown Court on 24 January for an offence of burglary. It is claimed that the district judge should have adjourned the extradition proceedings until after the 24 November, when the period during which he would have been on licence would have expired.[4]This argument is based on section 8B of the Act, which is in Part 1 of the Act. Sections 8B(1) and 8B(2) provide as follows:
"(1)This section applies if— (a)a person has been brought before the appropriate judge under section 4(3) or 6(2) but the extradition hearing has not begun; and (b)the judge is informed that the person is in custody serving a sentence of imprisonment or another form of detention in the United Kingdom. (2)The judge may order further proceedings in respect of the extradition to be adjourned until the person is released from detention pursuant to the sentence (whether on licence or otherwise)."
It may be that section 8B was added to the Act to give effect to Article 24 of the Council Framework Decision of 13 June 2002, which provides that the surrender of the requested person may be postponed so that they may serve a sentence passed for an offence other than that referred to in the European arrest warrant, although Mr Daniel Sternberg for the requesting authority says that it was added by way of response to the decision of the Divisional Court in Governor of Wandsworth Prison v Kinderis [2007] EWHC 998 (Admin).[5]The argument advanced by Mr Stephen Fidler for Mr Proskinas is that the words "in custody" in section 8B(1)(b) should be construed as including "on licence following his release from...". That would have triggered the district judge's discretion whether to adjourn the proceedings, an issue which the district judge did not address because he took the view that section 8B did not apply because he rejected the suggested construction of section 8B(1)(b). The supposed justification for giving the words "in custody" a wide construction is that otherwise someone can be extradited prior to the completion of the licence period. It is said that the legislative purpose of section 8B is to enable the court to adjourn extradition proceedings until the prisoner has completed his or her sentence. A prisoner will not have completed his or her sentence while he or she remains on licence, because they have to comply with the terms of their licence and a breach of those terms can result in their recall to prison.[6]I cannot go along with this argument. Section 8B(2) shows that the words "in custody" mean what they say, because otherwise there would not have been a need for the judge to have the power to adjourn the proceedings until the person is released from detention pursuant to the sentence, whether on licence or otherwise. It is the prisoner's release from detention which is important, not the expiration of any licence period. If it was the expiration of any licence period which was important, there would have been no need for the words "whether on licence or otherwise". Indeed, if Mr Fidler's argument was correct, it would mean that someone convicted of murder in this country and serving a sentence of life imprisonment who would, on his release from prison after completing the minimum term, be subject to a licence for the rest of his life, could not be extradited at all.[7]I should add that the point has been taken on behalf of the requesting authority that an appeal under section 26 of the Act, as this appeal is, is not the correct way to challenge a decision not to adjourn the extradition hearing under section 8B(2). The case of Olah v Regional Court in Plzen, Czech Republic [2008] EWHC 2701 (Admin) is said to be authority for that proposition. The appropriate course is said to have been to challenge the refusal to adjourn by judicial review. That may or may not be so, but it is unnecessary for me to address that in view of my clear conclusion about the proper construction of the words "in custody" in section 8B(1)(b). It follows that this appeal must be dismissed.