(1) Ministry of Justice, Lithuania (Appellants) Mindaugas Bucnys (Respondents) Marius Sakalis (Appellants) (2) Ministry of Justice, Republic of Lithuania (Respondents) (3) Dimitri Lavrov (Appellants) Ministry of Justice, Republic of Estonia (Respondents)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 12 October 2012 |
| Neutral Citation | [2012] EWHC 2771 (Admin) |
| Date | 12 October 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1395/2012, CO/5430/2011 & CO/7790/2011,Case No: (1) CO/1395/2012, (2) CO/5430/2011 & (3) CO/7790/2011 |
[2012] EWHC 2771 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
and
Mr Justice Globe
Case No: (1) CO/1395/2012, (2) CO/5430/2011 & (3) CO/7790/2011
Julian Knowles QC, Hannah Pye & James Stansfeld (instructed by CPS Extradition) for the Ministries of Justice of the Republics of Lithuania and Estonia
James Lewis QC & Joel Smith (instructed by Kayders Solicitors) for Mindaugas Bucnys
James Lewis QC & Ben Cooper (instructed by EBR Attridge) for Marius Sakalis
Alun Jones QC & Aaron Watkins (instructed by Kaim Todner) for Dimitri Lavrov
Hearing dates: 06/07/2012
This is the judgment of the Court.
I. The Question
These three appeals are brought pursuant to sections 26 and 28 of Part 1 of the Extradition Act 2003 (" EA"). Part 1 of the EA was passed to give effect in English law to the Council of the European Union Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States of the European Union of 2002 ("the Framework Decision" or "FD"). 1 As its title indicates, the FD created a legal framework for the arrest through European Arrest Warrants ("EAWs") and surrender between European Union ("EU") Member States. Each Member State was obliged by Article 34 of the FD to take all "necessary measures" to implement the FD in its national laws by 31 December 2003. The appeals concern the validity of so-called "conviction" EAWs, that is EAWs seeking the surrender of a person who has been convicted and sentenced to imprisonment for an offence in the requesting EU territory but who has since fled and whose surrender by the executing territory is sought in order that he may complete his sentence of imprisonment.
The present three "conviction" EAWs were issued in two territories which the Secretary of State has designated for the purposes of Part 1 of the EA, viz. the Republics of Lithuania and Estonia. In each of two cases the Minister of Justice of Lithuania ("MOJL") has issued and signed an EAW requesting that a Lithuanian national, who is currently resident in the UK, be arrested by the UK authorities and surrendered to Lithuania in order to serve the remainder of a term of imprisonment imposed by the Lithuanian courts. In the third case an official of the Ministry of Justice of Estonia (MOJE) has issued and signed an EAW which also requested the arrest and surrender to Estonia of an Estonian national who is currently resident in the UK, in order that he might serve the balance of a term of imprisonment imposed by the Estonian courts.
On appeal before us it was accepted that each of the three EAWs was in the correct form and contained all the necessary information. There is only one challenge to each of the EAWs by Messrs Bucnys, Salakis and Lavrov (whom I will call collectively "the offenders"). It is that the MOJL and the MOJE that issued the EAW concerned (whether that term refers to the Minister of Justice himself or an official in the Ministry of Justice or to that institution) cannot constitute a "judicial authority" within the meaning of section 2(2) of Part 1 of the EA, with the consequence that each of the EAWs issued is not a valid EAW for the purposes of Part 1 of the EA. If that be the case then it was agreed by all parties before us that the EAWs could not be executed by the Westminster Magistrates Court, which is the appropriate UK execution "judicial authority" in each case.
So the question raised is whether the MOJL and/or the MOJE constitute a "judicial authority" within section 2(2) of the EA, which provides:
"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory. …".
There is no definition of "judicial authority" in either the EA or in the FD.
We heard oral argument from counsel on 6 July 2012. At the outset we raised the issue of whether counsel on behalf of the MOJL and MOJE was taking the point that it was not open to the offenders to question the validity of the EAWs having regard to sections 2(7) – (9) of the EA (see further below). Mr Julian Knowles QC, on behalf of the two MOJs, was reluctant to do so initially, but Mr James Lewis QC, on behalf of Messrs Bucnys and Sakalis, argued that those sections were not conclusive and Mr Knowles argued the point fully in reply. We will therefore deal with this issue, which was one that was left open by the Supreme Court in its key recent decision of Assange v Swedish Prosecution Authority. 2
II. The Extradition Act 2003 and the Framework Decision
The Extradition Act: Although Part 1 of the EA 2003 was passed by Parliament to give effect to the FD, it does so in a somewhat oblique manner. Section 1(1) of the Act states that Part 1 "deals with extradition from the United Kingdom to the territories designated for the purposes of this Part by order made by the Secretary of State". Throughout Part 1 of the Act it talks of "extradition" rather than "surrender", which is the word deliberately used in the FD to contrast it with the former procedure of "extradition". Indeed, there is no reference to the FD at any point in the EA, even in the Act's preamble.
For the substance of these appeals we need only set out parts of section 2 and section 66(2) of the EA. They provide as follows:
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—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.
(10) An order made under subsection (9) may—
(a) designate more than one authority;
(b) designate different authorities for different parts of the United Kingdom.
…………………………
66. Extradition offences: supplementary
………………. E+W+S+N.I.
This section has no associated Explanatory Notes
(2) An appropriate authority of a category 1 territory is a judicial authority of the territory which the appropriate judge 3 believes has the function of issuing arrest warrants in that territory.
By virtue of an order made under section 2(9) of the EA, 4 the Secretary of State designated the Serious Organised Crime Agency ("SOCA") as the authority that may issue certificates pursuant to section 2(7). There is an issue between the parties on whether the words "arrest warrants" in section 2(7) and 2(8) refer to EAWs issued in accordance with the FD procedures or they refer to domestic arrest warrants in the category 1 territory concerned.
We should also set out sections 27 and 28 of the EA, which deal with the Court's powers on appeal. These sections provide:
27. Court's powers on appeal under section 26 E+W+S+N.I.
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3)The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4)The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
28. Appeal against discharge at extradition hearingE+W+S+N.I.
This section has no associated Explanatory Notes
(1) If the judge orders a person's discharge at the extradition hearing the authority which issued the Part 1 warrant may appeal to the High Court against the relevant decision.
(2) But subsection (1) does not apply if the order for the person's discharge was under section 41.
(3) The relevant decision is the decision which resulted in the order for the person's discharge.
(4) An appeal under this section may be brought on a question of law or fact.
…………..
Section 28(1) and (3) apply to Bucnys' appeal because the "judicial authority" issue was the one argued at his extradition hearing before Deputy Senior District Judge Wickham. The judge held that the MOJL was not a "judicial authority" and Bucnys was therefore discharged. The MOJL appeals that decision. In the other two appeals it was agreed that section 27(4) applies. No objection was taken to the "judicial...
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