Baksys v Lithuania
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES,MR JUSTICE JACKSON,Lord Justice Moses |
| Judgment Date | 08 November 2007 |
| Neutral Citation | [2007] EWHC 2838 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7174/2007 |
| Date | 08 November 2007 |
[2007] EWHC 2838 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Moses
Mr Justice Jackson
CO/7174/2007
Mr Stephen Fidler (Solicitor Advocate) (of Messrs Stephen Fidler & Co, London EC1N 2HB) appeared on behalf of the Appellant
Ms Gemma Lindfield (instructed by Special Crime Division, Crown Prosecution Service, 50 Ludgate Hill, London EC4M 7EX) appeared on behalf of the Respondent
( As approved by the Court )
This is an appeal against a ruling of District Judge Evans, dated 15th August 2007, ordering the extradition of Raimondas Baksys on the application of the Government of Lithuania. It is an appeal brought pursuant to section 26 of the Extradition Act 2003. It raises the issue as to the effect of the cancellation of a deferral of sentence imposed in Lithuania many years ago. Mr Baksys complains that he will not be given the opportunity to resist that cancellation which took place in his absence. Accordingly the extradition is unlawful, for reasons I shall develop.
The extradition hearing before the District Judge was pursuant to Part 1 of the Extradition Act 2003 on an arrest warrant. Lithuania is designated as a Part 1 territory under the Extradition Act 2003, by virtue of the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003, SI 2004/1898.
The appellant was convicted and sentenced in Lithuania to seven months' imprisonment in respect of one offence of misappropriation of property. He had with others, apparently, back in July 2001 broken the door of a repair shop of the motorised infantry battalion in memory of the Grand Duchess Birute of the motorised infantry brigade 'Gelezinis Vilkas' of the Lithuanian Army. A number of items, including target lifters and target shields, were stolen.
The District Judge was satisfied that that offence was an extradition offence for the purposes of section 10(2) of the Extradition Act 2003. There is no dispute but that is correct. By virtue of section 65(3) the conduct had occurred in a Category 1 territory, would have constituted the offence of burglary under the law of the United Kingdom, and a sentence of imprisonment greater than four months was imposed in the Category 1 territory, namely Lithuania. That sentence was one of seven months, and it is the nature of that sentence which gives rise to the issues in the instant appeal.
The sentence was one 7 months' imprisonment, but it was deferred on the performance of certain obligations. Firstly, to compensate fully for the adjudged damage of 17290 Litas (he was given time to pay that) on 1st December 2003 and, secondly and importantly for the purposes of this appeal, not to leave the place of residence without the consent of the institution supervising the sentence deferral for the deferred period of time. That sentence was passed by the judgment of the District Court of the City of Alytus on 13th March 2002. There was no dispute as to that. Although as I understand it originally there was a dispute about it, there was no dispute but that he was present when that conviction was ruled and when the sentence was imposed. But despite the sentence, on 27th April 2002, just over one month after it was imposed, the appellant departed abroad.
The District Judge was required, having been satisfied of the matters identified in section 10(3), to consider the bars to extradition pursuant to subsection (4) of section 10, provided by section 11. He considers those bars. None were contended for and none applied. In those circumstances, the District Judge decided that this appellant was a person unlawfully at large after conviction of the extradition offence, and he was therefore required to proceed under section 20 (see section 11(4)).
The argument before the District Judge was confined to section 20. Section 20(1) provides:
"If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence."
There was no dispute but that on 13th March 2002 the appellant was present. He was present thus when the sentence was passed and when he was convicted. But, submitted Mr Fidler (and he persists in this submission), he was not present when on 10th May 2004 the District Court of the City of Alytus cancelled the deferral of the sentence and ordered that he served the custodial sentence imposed on 13th March 2002. Mr Fidler submits that that was a separate and distinct ruling and decision, and in those circumstances was...
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