Bartosz Fedorowicz v Prosecutor General's Office (Lithuania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 02 December 2022 |
| Neutral Citation | [2022] EWHC 3088 (Admin) |
| Docket Number | Case No: CO/3197/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
[2022] EWHC 3088 (Admin)
Mr Justice Fordham
Case No: CO/3197/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
George Hepburne Scott (instructed by Lansbury Worthington Solicitors) for the Appellant
Stefan Hyman (instructed by CPS) for the Respondent
Hearing date: 17/11/22
Written submissions: 20/11/22 and 21/11/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an extradition appeal which raises a question of statutory interpretation concerning a provision of domestic criminal legislation: section 45(7)(b) of the Serious Crime Act 2015 (“the 2015 Act”). The Appellant is aged 33 and is wanted for extradition to Lithuania. That is in conjunction with an accusation Extradition Arrest Warrant (the “ExAW”) issued on 7 June 2021 and certified on 18 June 2021. It is agreed that the appeal must succeed if the Appellant is right on the question of statutory interpretation, which is a hard-edged question of law for this Court to answer.
The Conduct Alleged in the ExAW
There is a lot of common ground. Everyone agrees that the conduct described in the ExAW as having taken place in Lithuania did not involve any act or omission on the part of the Appellant. Everyone also agrees that the conduct described in the ExAW as having involved any act or omission on the part of the Appellant took place in Poland. The description of the offence in the ExAW starts with this:
While acting in an organized group, Bartosz Fedorowicz unlawfully acquired, stored and transported a very large quantity of narcotic substances. Bartosz Fedorowicz, who acted in the organized group together with Raimondas Dranginis, Egidijus Mitkus, Mantas Bagugauskas, Tomas Danilevidus, Julius Vaiacinas, Andrejus Motuzas, Tomas Grinius, Tomasz Wojtaszek (who was convicted for the said crime on 27 July 2020 by the Lon le Sonje Court of the Besancon Court of Appeal of the Republic of France) and the persons not identified in the course of the pre-trial investigation, while acting for mercenary reasons, i.e. by pursuing the goal to profit from the criminal activity, between May 2020 and 22 July 2020, the exact time not established in the course of the pre-trial investigation, during the meetings and telephone conversations, agreed to acquire a very large quantity of the narcotic substance cannabis and parts thereof which had been cultivated in the Kingdom of Spain, and unlawfully store and transport the said narcotic substances in the semi-trailer of the tractor unit from the Kingdom of Spain to the Republic of Germany for the purposes of distribution thereof.
The ExAW continues with the description of conduct said to have taken place in Lithuania. It involves a meeting on 3 July 2020 at a car park in Vilnius:
While acting on the basis of the criminal plan, on 3 July 2020, in a car parking lot, address: Gelelinio Vilko g. 6A, Vilnius, a plan of criminal activity was discussed during the meeting between R. Dranginis, E. Mitkus and A. Motuzas, and A. Motuzas received the funds in the amount not established in the course of the investigation for the purposes of commission of criminal activities given by the member of the organised group J. Vaidtinas, and gave the funds over to R. Dranginis. While acting in accordance with the criminal agreement Mantas Bagugauskas bought plane tickets in the name of R. Dranginis from the Warsaw Airport to the Valencia Airport …
The ExAW then describes other conduct. This includes the conduct of the Appellant which involves two things: a meeting on 8 July 2020 in Warsaw; and an instruction given (also in Poland, as Mr Hyman accepts) by the Appellant to an employee:
… whereas R. Dranginis and T. Danilevidus went to the Republic of Poland on 8 July 2020 by vehicle VW Toureg, license plate number KEA565, and during the meeting held with him (Bartosz Fedorowicz) at address: J. G. Benneta 2A, Warsaw, they agreed that the tractor unit with the semi-trailer which belonged to his company “WR INVESTMENT”, would transport a very large quantity of the unlawfully acquired narcotic substances cannabis (and parts thereof) from the Kingdom of Spain to the Republic of Germany. While acting in accordance with the agreement, Bartosz Fedorowicz instructed the employee of his company Tomasz Wojtaszek to go to the city of Orihuelos in the Kingdom of Spain by the tractor unit, license plate number WL9658L, and the semi-trailer, license plate number SB6597P, where the narcotic substances had to be loaded at the agreed place.
The description of the offence in the ExAW then continues as follows:
While acting in accordance with the developed plan, R. Dranginis used the plane tickets bought for him by M. Baguauskas, and on 8 July 2020 took a flight to the Kingdom of Spain, and while there, met T. Grinius who was waiting for him, used the funds given over by A. Motuzas through J. Vaithanas, and together with T. Grinius unlawfully acquired from the persons not identified in the course of the pre-trial investigation a very large quantity of the narcotic substance that had been cultivated in the Kingdom of Spain and prepared in advance, i.e. 64 kilograms of cannabis (and parts thereof), which was loaded on 17 July 2020 in the city of Orihuelos by the persons not identified in the course of the pre-trial investigation to the tractor unit, license plate number W19658L, and the semi-trailer, license plate number SB6597P, which belonged to the company “WR INVESTMENT” and was driven by Tomasz Wojtaszek. After that Tornasz Wojtaszek transported the said narcotic substance, i.e. 64 kilograms of cannabis (and parts thereof) which were unlawfully hidden inside the semitrailer of the tractor unit, from the Kingdom of Spain to the Republic of Germany until 22 July 2020 when during the inspection in the city of Aries, the customs officers of France detected and seized the said narcotic substance. Thus, he (Bartosz Fedorowicz), while acting in the organized group together with Raimondas Dranginis, Egidijus Mitkus, Mantas BaguKauskas, Tomas Danilevidus, Julius Vaidanas, Andrejus Motuzas, Tomas Grinius and Tomasz Wojtaszek as well as with other persons not identified in the course of the investigation, unlawfully possessed, i.e. acquired, stored and transported a very large quantity of narcotic substances, i.e. 64 kg of cannabis (and parts thereof).
It concludes:
For such acts, Bartosz Fedorowicz is suspected of having committed the criminal offences defined by Article 7 paragraph 12, Article 25 paragraph 3 and Article 260 paragraph 3 of the Criminal Code of the Republic of Lithuania.
Section 64 of the 2003 Act
The sole and narrow issue which has arisen in this case as a statutory bar on extradition is the question whether the Appellant's extradition to Lithuania would satisfy the mandatory conditions of section 64 of the Extradition Act 2003. For the purposes of applying these provisions, Lithuania is the relevant “category 1 territory”. Section 64(1)(2)(4) provide:
64. Extradition offences: person not sentenced for offence.
(1) This section sets out whether a person's conduct constitutes an “extradition offence” for the purposes of this Part in a case where the person – (a) is accused in a category 1 territory of an offence constituted by the conduct …
(2) The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in subsection … (4) are satisfied…
…
(4) The conditions in this subsection are that – (a) the conduct occurs outside the category 1 territory; (b) in corresponding circumstances equivalent conduct would constitute an extraterritorial offence under the law of the relevant part of the United Kingdom; (c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment.
Everyone agrees that the Appellant is the “person”, that his “conduct” which it is being said “constitutes” the “offence” (s.64(1)(a)(2)) is “conduct occur[ring] outside” Lithuania (s.64(4)(a)) and that the “conditions” which must be “satisfied” (s.64(2)) include that: “in corresponding circumstances equivalent conduct would constitute an extraterritorial offence under the law of the relevant part of the United Kingdom” (s.64(4)(b)). It is also agreed the “law” of the United Kingdom, containing the relevant “extraterritorial offence”, is found in section 45 of the 2015 Act. In considering the “corresponding circumstances equivalent conduct” condition of section 64(4)(b) it is therefore necessary to analyse the applicability of section 45 of the 2015 Act. In doing so, it is necessary to treat the conduct said to have happened in Lithuania – the meeting in the car park in Vilnius on 3 July 2020 – as though it had taken place somewhere in England and Wales (as “proxy” for Lithuania). Having done so, everything else can remain as it is. It is necessary to posit the Appellant's own acts and omissions having taken place outside England and Wales. It can be taken that the Appellant's own alleged conduct was all in Poland. Could those actions by the Appellant be a crime in England and Wales, by virtue of section 45?
Section 45 of the 2015 Act
Counsel agree that the focus is squarely on section 45(7)(b), on which there are competing suggested interpretations. I will section 45 in full, underlining section 45(7)(b):
45. Offence of participating in activities...
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