Kirsanov v Viru County Court, Estonia [2017] EWHC 2593 (Admin)

Case No CO/5765/2017[2017] EWHC 2593 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/10/2017
Before
LORD JUSTICE IRWINMR JUSTICE DINGEMANS
Between
VLADIMIR KIRSANOVAppellantVIRU COUNTY COURT, ESTONIARespondent
David Williams (instructed by McMillan Williams Solicitors) for AppellantFlorence Iveson (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 6 October 2017
JudgmentIntroduction
[1]The Appellant seeks to challenge the order of District Judge Ikram sitting in the Westminster Magistrates’ Court that he should be extradited to Estonia. The judgment and order were dated 11 November 2016. The Appellant has permission to appeal from William Davis J on one ground, that it is arguable the European Arrest Warrant [“EAW”] did not comply with Section 2 of the Extradition Act 2003 (“the Act”], in that the EAW did not give all the required particulars, and that further information supplied cannot remedy the deficiency. The judge refused permission to appeal on all other grounds. The Appellant seeks to renew the application on one ground, that his extradition is barred under Section 21 of the Act as a disproportionate breach of his rights under ECHR Article 8.[2]This is the judgment of the Court to which both of us have contributed.

The Facts

[3]The Appellant is an Estonian born on 29 August 1990. His extradition to Estonia is sought on an EAW issued by the Viru County Court, Narva, Estonia on 22 July 2016. The EAW is a conviction warrant and seeks the Appellant’s extradition in relation to an offence of robbery committed on 6 April 2011. The Appellant was convicted on 1 March 2012 and sentenced to two years’ imprisonment. His sentence was increased by a further two years’ imprisonment, relating to the unserved custodial element of a suspended sentence of two years’ imprisonment which was imposed on him on 10 February 2009 for a separate offence of robbery. The EAW therefore seeks his return to Estonia in order to serve a total sentence of four years’ imprisonment.[4]The Secretary of State has designated Estonia as a Category 1 territory for the purposes of Part 1 of the Extradition Act 2003.[5]A previous EAW in similar terms was issued by the same Issuing Judicial Authority [“IJA”] in January 2013 and was determined in proceedings concluded on 5 May 2017. In relation to that warrant, District Judge McPhee concluded that that EAW gave insufficient information in that it did not particularise the facts of the earlier offence of robbery.[6]The earlier warrant gave a more truncated text (in Box (f)) as to the offending which led to the extradition warrant. The text did specify two offences, and sentences in 2009 and 2012. However the detail was considerably restricted when compared to the EAW now before us. There were no particulars of the 2008 offence.[7]In the final hearing before DJ McPhee relating to the previous EAW, information was provided as follows here, indicating that Estonian law did not permit the amendment of an EAW, once issued:
“Referring to your letter regarding the surrender of Vladimir KIRSANOV (dob 29.08.1990) from UK to Estonia we have to clarify once again, under Estonian law it is not possible to reissue the European arrest warrant on the grounds you explained in your letter. And how the previous unserved sentence make influence to the new sentence, has been already explained by the authority, issued the European arrest warrant, Viru County Court. Such situations is very frequent in Estonian practice and never before this rises any problems. But as I already told, there is no possibilities under Estonian law to reissue the mentioned EAW.”
Mr Williams for the Appellant relies on this as bearing on the Section 21/Article 8 appeal, as set out below.[8]In the light of the first Ground of Appeal it is appropriate for us to set out fully the relevant extracts from the subsequent EAW and then the relevant additional information upon which DJ Ikram ordered the extradition.[9]The information included in the EAW germane to Ground 1 is as follows:
“(b) Decision on which the warrant is based: 1. Arrest warrant or judicial decision having the same effect: March 14, 2012 ruling of Viru County Court, Narva Courthouse in criminal matter No. 1-11-13151 Type: Ruling on declaring a person to be a fugitive. 2. Enforceable judgment: March 1, 2012 judgment of Viru County Court, Narva Courthouse which took effect on March 9, 2012 Reference: 1-11-13151 (c) Indications on the length of the sentence: 1. Maximum length of the custodial sentence or detention order that may be imposed for the offence(s):- 2. Length of the custodial sentence or detention order imposed: 4 years Remaining sentence to be served: 4 years … (e) Offences: Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person: Vladimir Kirsanov, as a person convicted by the September 1, 2009 judgment of Viru County Court, Narva Courthouse pursuant to §200 (2) 7) and 9) of the Penal Code, on April 6, 2011 at 5.30a.m., while in a state of alcohol intoxication, in Narva, in the area between the buildings located at Tallina mnt. 22 and 24, acting jointly with Aleksandr Hoblov and Vassili Jakovlev with the attention of taking away property belonging to another person, assaulted Juri Filatov, kicked the latter in the face and body, using his fists and feet, causing physical pain, and appropriated the victim’s mobile phone Nokia N76, value EUR 100, and wallet containing EUR 50 worth of bank notes. Consequently, Vladimir Kirsanov, as a person that has previously committed robbery, committed the taking away of movable property of another by use of violence with the intention of illegal appropriate in a group i.e. an offence provided in §200 (2) 4) and 7) of the Penal Code. Nature and legal classification of the offence(s) and the applicable statutory provision/code: §200 (2) 4) and 7) of the Penal Code – Taking away of movable property of another by use of violence with the intention of illegal appropriation. The same act if committed by a person who has previously committed robbery, or manslaughter in connection with robbery or for the purpose of any other personal gain, or extortion: if committed by a group or criminal organization is punishable by three to fifteen years’ imprisonment. … (f) Other circumstances relevant to the case (optional information): (NB: This could cover remarks on extraterritoriality, interruption of periods of time limitation and other consequences of the offence) By the February 10, 2009 judgment of Viru County Court, Narva Courthouse in criminal matter No. 1-08-12735 Vladimir Kirsanov (personal ID code 39008293725) was convicted pursuant to §200 (2) 7) and 9) of the Penal Code (robbery) and punished by imprisonment of 3 (three) years. The prescribed punishment was reduced by 1/3 (one third), i.e. by 12 (twelve) months and the final punishment prescribed was 2 (two) years of imprisonment. In applying provisions of § 74 (1) and (3) of the Penal Code, it was ordered that the punishment would not be enforced if Vladimir Kirsanov did not commit a new criminal offence within the three year period of probation and complied with the following supervisory requirements and obligations imposed on him for the period of supervision of conduct. … The court judgment took effect on February 26, 2009. Within the probation period, i.e. on April 6, 2011, Vladimir Kirsanov committed a new offence provided in §200 (2) 4) and 7) of the Penal Code (robbery) – criminal matter No. 1-11-13151. § 65 of the Penal Code provides for imposition of aggregate punishment. Pursuant to § 65 (2) of the Penal Code (wording valid on January 1, 2012), if an offender commits another criminal offence after the pronouncement of the conviction but before the sentence is served in full, the unserved part of the sentence imposed by the previous judgment shall be added to the punishment imposed for the new offence in accordance with the provisions of 64 (2), (4) and (5) of this Code. In such case, the aggregate punishment shall not exceed the maximum term of the given type of punishment. Consequently, the court imposed on Vladimir Kirsanov a punishment for committing the new offence and formed an aggregate punishment pursuant to § 65 (2) of the Penal Code (March 1, 2012 judgment of Viru County Court, Narva Courthouse in criminal matter No. 1-11-13151). By the March 1, 2012 judgment of Viru County Court, Narva Courthouse in criminal matter No. 1-11-13151 Vladimir Kirsanov was convicted pursuant to § 200 (2) 4) and 7) of the Penal Code (robbery) and punished by 2 (two) years of imprisonment. The punishment imposed pursuant to § 65 (2) of the Penal Code was increased by the unserved part (2 years of imprisonment) of the sentence imposed by the February 10, 2009 judgment of Viru County Court, Narva Courthouse, and an aggregate punishment of 4 (four) years of imprisonment was imposed on Vladimir Kirsanov. The term of punishment was calculated as from March 1, 2012. As a preventive measure, taking into custody was imposed on Vladimir Kirsanov, and it was decided to take him into custody in the courtroom. At the February 23, 2012 court session in which Vladimir Kirsanov participated as well, the judge announced that the conclusion of the judgment would be announced on March 1, 2012 at 11 a.m. Vladimir Kirsanov did not appear to the announcement of the March 1, 2012 judgment. The court judgment took effect on March 9, 2012. By the March 2, 2012 ruling of Viru County Court, Narva Courthouse, the accused Vladimir Kirsanov was subjected to compelled attendance of the announcement of the judgment taking place at 10 a.m. on March 7, 2012 at the Narva Courthouse of Viru County Court. Compelled attendance yielded no results. By the March 14, 2012 ruling of Viru County Court, Narva Courthouse, Vladimir Kirsanov was declared to be a fugitive, and upon his apprehension he is to be taken to the Narva Courthouse of Viru County Court no later than within 48 hours of his apprehension to attend the announcement of the relevant judgment. …”
Type: Ruling on declaring a person to be a fugitive.

Nature and legal classification of the offence(s) and the applicable statutory provision/code:

(s) and the applicable statutory provision/code:

[10]Although the EAW did specify the earlier offending, and the overall sentence of four years arising from the combination of offences, it will be evident that despite the indication given as set out in paragraph 1 above, the Requesting Judicial Authority did in fact issue the later EAW in different (expanded) terms in Box (f). The EAW, however, still did not give any account of the facts leading to the 2009 conviction.[11]Following receipt of the re-issued EAW, on 26 September 2016 the CPS wrote to the Estonian Court, asking a single question:
“Please can you provide the date, location and details (including Mr Kirsanov’s role) of the robbery offence that Mr Kirsanov was convicted of on 10 February 2009 by Viru County Court, Narva courthouse in Criminal matter No. 1-08-12735?”
This question was not supplied to the Appellant at the time he was served with the further information, but was contained in the skeleton argument for the hearing.[12]Additional information was provided to the Crown Prosecution Service in a letter from the Ministry of

Justice of the Republic of Estonia, dated 14 October 2016 including the following text:

“The 10.02.2009 judgement of Viru County Court in criminal case No. 1-08-12735 entered into force on 26.02.2009. The 29.09.2008 statement of charges of Viru Circuit Prosecutor’s Office, concerned with the same criminal case No. 1-08-12735, describes the charges against Vladimir Kirsanov as follows: “In this criminal case, Andrei Laumets, Vladimir Kirsanov and Maksim Vilde are charged with having, acting in a group, during the period from 05.05.2008, 22.00, to 06.05.2008, night, for the purpose of illegal appropriate of the movable property of another, by breaking the door lock, broken into the apartment of Puškini 49-133, Narva, which belongs to the victim Vladimir Stihhin, where they attacked the victim, beat him up, inflicting on the victim an open wound of the eyelid and eye area, and took away the victim’s wallet, containing a bank card and 900 kroons in cash, and left the scene with the property gained. Through his deliberate acts, Vladimir Kirsanov committed taking away of the movable property of another for the purpose of its illegal appropriation, by using violence, in a group of persons, by intrusion, i.e., a crime set out in the Penal Code §200(2) clauses 7, 9. Grounds: criminal file No. 1-08-12735, volume 2: pp 61-61, pp 115-117”
Grounds: criminal file No. 1-08-12735, volume 2: pp 61-61, pp 115-117”

The Grounds of Appeal

[13]The Grounds of Appeal are:
“1. The EAW does not meet the requirements of Section 2 of the Extradition Act 2003. 2. Extradition would amount to a disproportionate amount of interference with the Appellant’s private and family life.” 14. The relevant provisions of the Act bearing on Ground 1 “2 Part 1 warrant and certificate (1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains … (b) the statement referred to in subsection (5) and the information referred to in subsection (6). … (5) The statement is one that— (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is— … (b) particulars of the conviction;” … (b) the statement referred to in subsection (5) and the information referred to in subsection (6). (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(b) particulars of the conviction;”

[14]The critical matter for present purposes is the requirement for information under Section 2(6)(b). The EAW lacked the factual particulars of the earlier conviction. It is beyond argument that the relevant particulars were contained in the further information of October 2016.

The Appellant’s Submissions on Ground 1

[15]Mr Williams in his written submissions cited to us a considerable range of authority addressing the requirements of Section 2(6)(b). He emphasised a passage from R (Echimov) v Court of Babadag, Romania [2011] EWHC H 64, where at paragraph 37 Davis J (as he then was) stated:
“It seems to me that when a conviction European Arrest Warrant relates to a combined sentence imposed in respect of an index offence and of a previous offence, the sentence for which he is activated by the index offence, then particularisation of both offences is ordinarily required to secure compliance with section 2(6)(b) of the 2003 Act. That, I might add, is not an onerous requirement.”
[16]The Appellant also relies on the observations of Beatson LJ in Irinel Edutanu v Iesi Court of Law, Romania [2016] 1WLR 2933 where, following a review of the authorities including Echimov, he said:
“The discussion above shows that where it appears from the terms of an EAW read as a whole that the IJA is seeking a return that would mean the requested person will serve a longer sentence than the sentences for the offences for which extradition is sought and that the total sentence is in respect of offences which have not been particularised rather than only aggravating those which have been particularised it will not be valid. As I stated at paragraph 9 above, particular care must be taken in ascertaining the meaning of the EAW in such cases.”
[17]Mr Williams goes on to argue that the approach taken in Echimov and Edutanu was founded on the principles laid down by Lord Hope of Craighead in the well known decision in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, in which Lord Hope stated:
“27. The contents of the warrant are crucial to the operation of the system which has been laid down in Part 1. Section 10(2) states that the judge must decide whether the offence specified in the warrant is an extradition offence. That expression is defined in sections 64 and 65 of the Act. Section 64 applies to accusation cases. Section 65 applies to conviction cases. These definitions are almost identical, except that where the test of double criminality must be satisfied in accusation cases the conduct must be punishable by a custodial sentence of 12 months or more (see section 64(3)(c)), whereas in conviction cases the minimum sentence is 4 months (see section 65(3)(c)). Nothing turns on that distinction in the present case. What does matter is that the Part 1 warrant is the initiating document in all cases, irrespective of whether the offence is within the Framework list and irrespective of whether the double criminality requirement which is dispensed with in the cases referred to in sections 64(2) and 65(2) applies to it. 28. The issue in the certified question is directed to the definition in sections 64 and 65 of the offences which are to be treated as extradition offences. But it is not possible to address this issue without having in mind the requirements which a Part 1 warrant must satisfy. Both points lie at the heart of the procedure that has been laid down by Part 1 of the 2003 Act. If the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it. And if the offence that it describes is not an extradition offence within the meaning of section 64 or 65, as the case may be, the judge must order the person's discharge: section 10(3). In either of these two situations there is no way back for the judicial authority of a category 1 territory. The procedure in Part 2 of the Act applies only to the territories that have been designated for the purposes of that Part: section 69(2).”
[18]Mr Williams also seeks to rely on the dictum of Lord Hope in Dabas v High Court of Justice, Spain [2007] 2 AC 31 at paragraph 50, where he stated:
“I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant.”
[19]Mr Williams rejects the proposition that the approach laid down in Cando Armas and Dabas has been altered following the decision of the Court of Justice of the European Union in Criminal Proceedings against Bob-dogi (Case – 241/15) [2016] 1 WLR 4583, by the subsequent decision of the Supreme Court in Goluchowski v District Court in Elblag, Poland [2016] 1 WLR 2665, and the decision of the Divisional Court in Alexander and Di Benedetto [2017] EWHC 1392 (Admin). Mr Williams submits that Alexander and Di Benedetto is wrongly decided and need not be followed. In his submission, the case meets the test in R v Greater Manchester Coroner, ex parte Tal and Another [1985] 1 QB 67 and represents “one of those rare cases where a Divisional Court should depart from an earlier decision of another Divisional Court” (page 83C).[20]In his oral submissions, Mr Williams made it clear that, for the purposes of Ground 1, he could not realistically seek to distinguish this Appellant’s case from Alexander and Di Benedetto. He submitted that one reason for concluding that Bob-Dogi should not be read in the sense relied on in Alexander and Di Benedetto was that the CJEU may have acted on the assumption that if an EAW was once struck down, it could not be re-issued, meaning that extradition failed once and for all. Given that the English approach, in law and practice, is to permit a second (or theoretically subsequent EAW) to be acted on, the proper course was to insist on a fresh EAW containing all required information, rather than permitting any lacuna to be filled through further information in a different form. We consider this point below.[21]Other than to adopt the arguments advanced by the Appellants in Alexander and Di Benedetto, and reserve his position if that decision were to be the subject of further appeal, Mr Williams made no further submissions on Ground 1. He did make a number of helpful submissions on practice, which we address below.

Respondent’s Submissions

[22]In reply on Ground 1, Ms Iveson simply submitted that the conclusions drawn by the Divisional Court in Alexander and Di Benedetto as to the consequences of the decisions in Bob-Dogi and Goluchowski were correct. The approach of District Judge Ikram in this case was consistent with those decisions and was also correct. The missing information in this case was very limited in its impact, and the EAW in fact provided sufficient information to satisfy the requirements of the legislation. All that was missing was an amplification of the facts of the 2008 offending.

Our Conclusions on Ground 1

[23]We reject the Appellant’s submission that Alexander and Di Benedetto was wrongly decided, for the reasons set out in that judgment. We do not intend to repeat the analysis there set down. If anything, this case is stronger on its facts than were those cases, in the sense that the further information provided is more limited in its scope and significance. The EAW in the instant case made clear(1) that it related to the 2009 conviction, as well as the 2012 conviction,(2) that the sentence to be served following extradition was four years, not two years, and(3) that the aggregated or composite sentence derived from both offences. The factual particulars of the later offence were given and no criticism was offered of those particulars. On the facts of this case, the missing information consisted entirely of a fuller account of the facts of the earlier offence. Since the Appellant was present at the offending, and at his earlier trial, those facts were well known to him.[24]We accept that even in those circumstances, this was required information. It had to be provided. However, given that it has been provided, we have no hesitation in concluding that the appeal fails in respect of Ground 1.

Ground 2: Extradition not incompatible with Article 8 Rights

[25]Mr Kirsanov renewed his application for permission to appeal on the ground that extradition should not be ordered pursuant to section 21 of the 2003 Act because such an extradition would infringe his rights protected by article 8 of the European Convention on Human Rights (“ECHR”).[26]Section 21 of the 2003 Act requires the Court to determine whether the extradition of Mr Kirsanov would be compatible with his rights under the ECHR. Article 8 of the ECHR provides a right to a private and family life, which is qualified. The relevant principles governing the approach to this issue have been established, see Norris v USA [2010] UKSC 9, [2010] 2 AC 487; H(H) v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, [2013] 1 AC 338; and Celinksi v Poland [2015] EWHC 1274 (Admin); [2016] 1 WLR 551.[27]The question is whether interference with the article 8 right is outweighed by the public interest in extradition. There is no test of exceptionality. In the balance there is a constant and weighty public interest in extradition, people should have their trials, and the UK should honour treaty obligations. Delay since commission of the crime may diminish weight to be attached to the public interest and increase the impact on private life.[28]Mr Williams submits that District Judge Ikram made an error when he took into account incorrect information in this case. This was because the Judge referred to a proof of evidence which the Judge said had been adopted by Mr Kirsanov in evidence which was not Mr Kirsanov’s proof of evidence. It seems that the Judge must have inadvertently copied the wrong proof of evidence into the judgment. Mr Williams submitted that in such circumstances this Court should grant permission to appeal, undertake the relevant balancing exercise itself, and should conclude that extradition was barred under section 21 of the 2003 Act. Ms Iveson accepted that a wrong proof of evidence had been inadvertently reproduced in the judgment. However Ms Iveson submitted that the Judge had directed himself properly as to the law, and that he had set out the correct facts when undertaking the balancing exercise, and that permission to appeal should not be granted, and that, in any event, there was no impermissible interference with article 8 rights.[29]At the conclusion of the hearing we announced that permission to appeal would be granted on this ground, but that Mr Kirsanov should not think that just because permission had been granted the appeal on this point was likely to succeed. We granted permission to appeal on this point because it is apparent that the Judge had inadvertently copied the wrong proof of evidence into the judgment. In circumstances where permission to appeal had already been granted on the section 2 ground, it seemed to us appropriate to deal with the article 8 ground. This was so that Mr Kirsanov should have the comfort of knowing that his case had been properly considered on the basis of the correct information.[30]There are a number of matters which militate against ordering extradition. The evidence and statements before us showed that Mr Kirsanov has been working as an assistant baker and is well thought of, and that he has therefore turned his life around from the life that he was living in Estonia. He has also provided assistance in this jurisdiction both to his sister, who has suffered a serious illness (the details of which it is not necessary to set out in this judgment but which we have noted), and his niece. He has also formed a relationship and his girlfriend is expecting their child in January 2018.[31]Mr Williams also placed emphasis on the fact that after proceedings under the first EAW had been dismissed on 5th May 2016 Mr Kirsanov had believed that he could not be extradited. This was because the requesting authority had written to the CPS and said that the EAW cannot be reissued “on the grounds you explained in your letter”, and Mr Kirsanov had been told about the letter. We note that the letter had formed the basis of an application to stay the second EAW on the basis of an abuse of process. The Judge had dismissed that application because views expressed in the letter as to the likelihood of discharge if the EAW had been reissued could not give rise to any legitimate expectation on Mr Kirsanov’s part. We are prepared to accept that Mr Kirsanov believed that proceedings against him would not be pursued between the period of 5th May and 24th August 2016, and that this is a factor militating against extradition. However we note that it was after Mr Kirsanov became aware that his extradition was being sought again (on 24th August 2016) that he commenced the relationship with his current partner, and that as a matter of chronology his partner’s pregnancy post-dated the order for extradition made by the Judge on 11th November 2016.[32]We also note that the first robbery related to events back in May 2008, although it should be recorded that the suspended sentence for the first robbery would not have been brought into force but for the fact that Mr Kirsanov committed a second robbery on 6th April 2011.[33]There are a number of factors in favour of extradition. There is the public interest in ensuring that extradition arrangements are honoured. There is the need to accord a proper degree of mutual confidence and respect to the request made by the judicial authority. There is the fact that the evidence established (and it was common ground) that Mr Kirsanov was a fugitive from justice at the time that he came to this jurisdiction in respect of the offences of robbery.[34]In our judgment it is plain that the factors in favour of extradition outweigh those factors against extradition, and that it was and is proportionate to order Mr Kirsanov’s extradition. This is because these robberies are serious offences, because Mr Kirsanov was a fugitive, because he formed his current relationship knowing that his extradition was being pursued, and because these factors outweigh the factors militating against extradition. We agree therefore with the Judge’s conclusion on this point. Any proper balancing exercise carried out as recommended in Celinski v Poland [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 would reach the same conclusion.

Practice

[35]We now return to matters of practice.[36]We were informed by Mr Williams that those acting for Requesting Judicial Authorities, where further information has been requested and is supplied, do not universally supply to the Appellant’s representatives a copy of the question or questions which have been asked and answered, or do not do so at the time when the further information is served. This is not acceptable practice. In Puceviciene and Another v Lithuanian JA and Another [2016] 1 WLR 4937, Lord Thomas CJ made it clear that: “… when answers to questions are put before the court, the questions and the information supplied to the requesting judicial authority to enable it to understand the questions (as we set out at paragraphs 52-54 below) must also be put before the court. This should generally not give rise to any difficulty. If the questions (and accompanying explanation) are posed by the CPS (or if the judge plays a role in their formulation and the CPS acts a conduit to transmit the questions), the questions and the accompanying explanation can simply be transmitted as a series of questions entirely separate from any advice given by the CPS about the conduct of the proceedings.” (paragraph 23) We re-emphasize that it is not acceptable to furnish answers as further information, without the corresponding questions which have been asked. The questions must be supplied at the time the further information is served on the other party and filed. This is easily achieved, as Lord Thomas made clear.[37]Mr Williams also referred us to Article 15(2) of the Council Framework Decision 2002/584/JHA, as amended by the Council Framework Decision 2009/299/JHA, which reads:
“If the executing judicial authority finds the information communicated by the issuing member state to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to articles 3 to 5 and article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in article 17.”
[38]Mr Williams’s concern was twofold. Firstly, he was concerned that Courts may not always be clear, where further information is needed, as to what information is necessary. Secondly, he suggested that on some occasions a Court in England and Wales might themselves seek the information from the issuing member state. We should stress that we have no evidence that this has ever happened.[39]A Framework Decision must necessarily be couched in terms which can be implemented in jurisdictions with very different legal traditions and systems. The requirements of a Framework Decision can and will be met in different ways in different Member States. In England and Wales the requirements will be met in a way consistent with our adversarial system.[40]In Alexander and Di Benedetto, at paragraphs 75 to 80, the Court made a number of points about the responsibilities of parties and of the Court. We adopt and re-emphasise those here. We emphasise in particular firstly that it is the duty of the parties to identify any missing information, as early as possible. Secondly, although a Court in England and Wales should identify missing information, and do so clearly, it is not in our system the responsibility of the Court to communicate with the Requesting Judicial Authority. In our system it is the responsibility of those acting for the Requesting Judicial Authority to obtain the information. As was said in paragraph 77 of Alexander and Di Benedetto, nothing in the Framework Decision carries any different implication. Indeed, it would be a recipe for confusion if a Court did take such a step, as well as arguably drawing the Court into the arena. The responsibility lies firmly on the state requesting extradition.

Conclusion

[41]For those reasons, although we grant leave to appeal on Ground 2, the appeal is dismissed.

Cited in 3 later judgments