Bairasauskas v Prosecutor General's Office of the Republic of Lithuania [2013] EWHC 446 (Admin)

Case No CO/9594/2012[2013] EWHC 446 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 20 February 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE FOSKETT
Between
BAIRASAUSKASAppellantv
Between
PROSECUTOR GENERAL'S OFFICE 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)
MS U BHATT (instructed by Guney Clark & Ryan) appeared for AppellantMS N DRAYCOTT (instructed by CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE FOSKETT: The Prosecutor General's Office of the Republic of Lithuania seeks the return of the appellant on an accusation European Arrest Warrant issued on 21 June 2012 and certified by the Serious Organised Crime Agency on 27 June 2012. He is accused of one offence of conspiracy to import drugs between 19 December 2011 until the middle of January 2012. The EAW indicates that the maximum sentence upon conviction in Lithuania is 15 years' imprisonment. The framework list is marked for illicit trafficking of narcotic drugs and the offence is said to be an extradition offence pursuant to section 64(2) and 64(3) of the 2003 Act.[2]The appellant was arrested pursuant to the EAW on 3 July 2012 and appeared before District Judge Evans at Westminster Magistrates' Court on 4 July, when he was represented at that stage by an extradition solicitor. As I understand it, no issue was taken on his behalf regarding his production at court as soon as practicable, or regarding the service of copies of the EAW on him; he did not dispute identity but did not consent to his extradition. The matter was adjourned and the extradition hearing took place on 4 September before District Judge Zani, who found, contrary to the argument advanced on the appellant's behalf, that the offence was an extradition offence and that extradition would be compatible with convention rights, and the District Judge ordered the appellant's extradition and he was remanded in custody.[3]Ms Unnati Bhatt takes now, in effect, three points. The first for today's purposes is that she submits that the particulars given in the warrant do not comply with section 2(4)(c); second, she submits that the appellant is only wanted as a suspect and is not wanted for trial; and, finally, she takes what is said to be an Article 3 point.[4]I can deal with that point immediately: although the point was apparently taken at the extradition hearing, I think Ms Bhatt has acknowledged that the newspaper article in question does not mention the appellant by name and, accordingly, this argument is tenuous in the extreme and I reject it.[5]Returning then to the matters of greater substance for the purposes of this appeal, she submits that the allegations against the appellant are unclear. The most that can be discerned from the warrant, she argues, is the suggestion that he organised disposal of narcotics whilst in England and Lithuania within a group of accomplices. The period over which it is alleged to have occurred is identified, and that there was some sort of arrangement in which two girls, who are called "G" and "V", would go to Peru to obtain the cocaine and then traffic the cocaine to another city. However, the two girls were stopped by the police before the offence could be completed. Ms Bhatt acknowledges that the nearest that this conduct comes to in English law is a conspiracy and she submits, in her skeleton argument at least, that the actions undertaken in pursuit of a conspiracy were carried out by an unknown person called Tadas. She says that the simplest reading of the warrant suggests that the appellant had no part in any conspiracy to smuggle drugs or to incite anyone to act in an illegal manner. She has reinforced those submissions this morning by suggesting that the particulars indicate only in the barest form the nature of the actions in which it is said that the appellant was engaged.[6]Ms Draycott counters this argument by saying that it is clear from the warrant that the allegation is that the appellant is the organiser of a criminal group which conspired illegally to import 2,775 kilograms of cocaine, and his conduct and the conspiracy is explained in the following terms, and this is the way Ms Draycott put it: first, he is suspected of organising the illegal disposal of a very large amount of a narcotic substance while acting within the territory of Lithuania and the United Kingdom and a group of accomplices, G and V and an identified person, agreed to go to the Peru and smuggle a large amount of cocaine which had been bought for them. They were all furnished with travel tickets, money and travel expenses and given instructions as to the circumstances in which the narcotic substance would be transferred to them. Finally, G and V flew to Peru to receive the cocaine while executing the instructions of the appellant and the unidentified person. All those matters, Ms Draycott says, are identified clearly in the EAW.[7]I agree that it is not an easy document to read and I will not endeavour to set it out for the purposes of this judgment, but in essence the summary that Ms Draycott has provided does seem to me to reflect that which appears in the particulars under box (e). As it seems to me, just stopping at that point, there really is no doubt that sufficient particulars have been given to enable the appellant to know the case that he will have to meet should he have to return to face it. Because the point was raised at an earlier hearing, as I understand it, further information was sought from the respondent authority in the meantime, not because it was acknowledged that it was necessary, but perhaps out of an abundance of caution, and the further information indicates at paragraph 2:
"According to the data available to us, the appellant has organised this crime on the grounds of the plan, which was well drafted in advance, while taking advantage of his international criminal contacts. The act of organisation has been evidenced by the fact that he found V and G for the commission of this crime, persuaded them to go to Peru to bring back the narcotic substance supplied to them in return for travel tickets from the EU to Peru [and the route is specified] and gave them money for any travel related expenses. Besides, he coordinated his actions with V and G via electronic communications."
She says, with justification, that, apart from making reference to the electronic communications, all that material was previously set out in the warrant itself.[8]I am bound to say that I am wholly unable to see how it can be said that the particulars required by the statute are lacking. I do not think any extensive citation or authority is necessary for this purpose, the principles are clear. As I have said, to my mind the warrant was clear enough in its own right. If I was wrong about that, the additional material can confirm that though I accept, of course, that that is not the way that one goes about these things.[9]Let me move to the next point. Would the appellant simply be being taken back on suspicion and not for trial purposes? The law about this is clear as between Ms Bhatt and Ms Draycott. I have been referred to a number of authorities which I do not propose to deal with in great detail. In Re Ismail [1999] 1 AC 320, Lord Steyn said:
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of 'accused' persons."
More particularly, I have been referred to the case of Asztaslos v Szekszard City Court, Hungary [2011] 1 WLR 252, where Aikens LJ summarised the propositions that govern issues of this nature. Again, I will not prolong this judgment by a recitation of those factors, other than simply to say that, as is said in proposition (4), the words in section 2(3)(a) and (b) have to be construed in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure, and it is only if the wording of the warrant is equivocal that the court should consider examining extrinsic evidence. The general force of what Aikens LJ was saying was that that should be discouraged.[11]Ms Draycott submits that the appellant’s extradition is sought for the purposes of conducting a criminal prosecution and she submits that the EAW contains no equivocal statement or any ambiguity. When it is read as a whole, it clearly requests return for prosecution. It does provide the usual statement in the language of the framework decision as follows:
"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purpose of executing a custodial sentence to detention or conducting a criminal prosecution."
She contends that the EAW is not equivocal, but, again, because the issue had been raised at an earlier stage, a request for further information was sent to Lithuania following a hearing before the Administrative Court last year and on 23 January this year the response explained the different stages of criminal proceedings in Lithuania and states that the EAW was issued for "the purposes of pursuing the criminal prosecution of the aforementioned person."[12]Ms Bhatt has drawn my attention to a particular part of that further information which she says, at least arguably, demands further enquiry. I am bound to say that I am not persuaded that this is an area where yet further information should be sought. To my mind it is clear on the face of the warrant that he is being asked to return for the purposes of prosecution. Various points have been made about uncertainties that there are about what has happened, for example to the other co-accused, if I can so describe them. It does, with respect, seem to me to be wholly irrelevant to know what the position is in respect of them. In that jurisdiction, as in the UK jurisdiction, different considerations may apply in relation to different persons involved in relation to a conspiracy, but the bottom line of all this seems to me to be that it is quite plain that the appellant is being required to return for the purposes of prosecution and, to that extent, I do not think that the objection that is sought to be raised at this stage is well founded and I can see no basis upon which a further adjournment should be granted to enable yet further enquiries to be made.[13]For those reasons, the appeal is dismissed.