Eimantas Peikauskas v Prosecutor Generals Office (Lithuania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 10 June 2021 |
| Neutral Citation | [2021] EWHC 1537 (Admin) |
| Docket Number | Case No: CO/4555/2020 |
| Date | 10 June 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1537 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/4555/2020
Mary Westcott (instructed by Lansbury Worthington Solicitors) for the Appellant
Alexander dos SANTOS (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 19 May 2021
Approved Judgment
Introduction
The appellant, Eimantus Peikauskas, is sought by the Prosecutor General's Office, Lithuania, pursuant to a European Arrest Warrant issued on 21 January 2018 and certified on 9 February 2018. The warrant seeks his surrender to stand trial for two offences of conspiracy to defraud to the value of EUR 2,000. The framework list is ticked for swindling. Each offence attracts a custodial sentence of up to 3 years' imprisonment.
After a hearing at Westminster Magistrates' Court, District Judge Hamilton ordered the appellant's extradition for reasons contained in a judgment handed down on 2 December 2020. The appellant appealed pursuant to s. 26 of the Extradition Act 2003 (“the 2003 Act”). This is a renewed application for permission to appeal, permission having been refused on the papers by Lane J on 22 April 2021.
District Judge Hamilton noted in his judgment that the appellant had raised an “exceptionally large” number of objections to extradition, some of which he described as very weak. Only three grounds are now pursued. All rely on s. 21A of the 2003 Act. It is said that the judge erred in concluding that extradition would be compatible with the appellant's Article 3 rights in the light of the prison conditions in Lithuania (ground 1), the appellant's Article 8 rights (ground 2) and that he erred in concluding that extradition would be proportionate (ground 3).
I deal with these in reverse order, as that is the order in which they were advanced before me.
Ground 3
As to ground 3 (proportionality), s. 21A(1)(b), read with s. 21A(2) and (3), requires the judge to consider whether the extradition would be disproportionate, taking into account (a) the seriousness of the conduct alleged to constitute the extradition offence, (b) the likely penalty that would be imposed if the appellant was found guilty of the extradition offence and (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of the appellant.
The leading case is Miraszewski v Poland [2014] EWHC 4261 (Admin), [2015] 1 WLR 3929, where at [31] Pitchford LJ said that the court may, depending on its evaluation of the factors, conclude that extradition would be disproportionate if (i) the conduct is not serious and/or (ii) a custodial penalty is unlikely and/or (iii) less coercive measures to ensure attendance are reasonably available to the requesting state in the circumstances. At [36], it was noted that seriousness was to be judged in the first instance against domestic standards, but taking into account the views of the requesting State, if offered. As to likely sentence, the judge is entitled to draw inferences from the EAW and can draw on domestic sentencing practice.
In Kalinauskas v Prosecutor General's Office, Lithuania [2020] EWHC 191 (Admin), the appellant was sought for a drugs offence for which the sentencing range in England and Wales was between a low-level community order and 26 weeks' custody. Supperstone J (with whom Irwin LJ agreed) held that, because the appellant had been in custody awaiting extradition, by the time of the appeal he had served in excess of any sentence that could be imposed on him. Extradition was therefore disproportionate and he was discharged.
Mary Westcott, for the appellant, said that the same approach should apply here. The Lithuanian authority had the opportunity to submit material on the likely sentence but had chosen not to do so. In those circumstances, it was appropriate to consider how the appellant would be sentenced in this jurisdiction for the offences for which he is sought. Applying the Sentencing Council's Definitive Guideline for conspiracy to defraud, and assuming that this was a medium culpability offence, the range where the value was under £5,000 was a band B fine to 26 weeks' custody. Even assuming an adjustment to a higher category on the basis that the victim was particularly vulnerable, the range would be between a medium level community order and 1 year's custody. The appellant has been on remand for over 16 months. That was longer than any sentence the Lithuanian court was likely to impose.
The difficulty with submissions of this kind is that, if an offender were being sentenced in England and Wales, the court would have available a great deal more information than is normally, or is required to be, included in an EAW. Save in a very clear case, this makes it difficult to say with any confidence whether the requested person has served in excess of any sentence that might be imposed on him in the requesting State.
The judge was alive to this difficulty. After setting out the principles to be derived from Miraszewski, he noted at [64] that the allegations against the appellant could not be described as “minor”: the victims were vulnerable and most likely elderly individuals liable to be taken in by the “fairly elaborate deceptions said to have been practiced”; the offences involved pre-planning and group action; and each of the two alleged offences involved the sum of 2000 Euros. It is true, as Ms Westcott submitted, that the EAW did not say in terms that any of the victims was vulnerable because of age. The judge acknowledged the lack of clarity in this regard at [65] but noted that the description of one of the offences involved one of the defendants being frightened away by the victim's granddaughter. This, the judge said, justified an inference that one of the victims at least was elderly.
For my part, I doubt whether it can be said with any confidence on the basis of this snippet of information that this victim was vulnerable because of age. But it is certainly a possibility. The significance of this possibility was identified by the judge at [65]: it might justify moving up a category in the domestic sentencing guideline. Given the lack of clarity as to the circumstances of the offence, I do not think the judge was wrong to say that this is a case which could potentially attract a sentence of up to 2 years' detention, given that – on any view – there were two separate offences, both of which involved pre-planning, group action and sums which were significant. Whether a sentence of that order was realistic would depend on a host of factors which are not clear from the EAW. It is not clear at what stage an offender who received such a sentence could expect to be released in Lithuania; different jurisdictions have different rules and procedures for determining early release.
In short, unlike Miraszewski, this was not a clear case. There was a possibility that, once extradited, the appellant would receive a custodial sentence lower than that which he had already served in the UK. If so, he would – as the judge said – be protected by the provisions of the Framework Decision, which require time served in the UK to be deducted from any sentence. However, it could not be said that the offender was unlikely to receive any custodial sentence. There was also a material possibility that a custodial sentence would be imposed which exceeds the time already served. Because of that possibility, there remained a clear public interest in his extradition to face trial for these offences.
In my view, the judge's analysis of these points was careful and nuanced. There was no material error of approach. This was a case whose outcome depended on the view taken by the courts of the requesting State about the circumstances of the offence and the offender. The proper sentence was a matter for them. It could not be said on the basis of the information in the EAW that...
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Modestas Buivis v Deputy Prosecutor General (Republic of Lithuania)
...Article 3, was not pursued. That application was abandoned. Proportionality: s. 21A(1)(b) The law 8 In Peikauskas v Lithuania [2021] EWHC 1537 (Admin), a permission decision, I summarised the applicable law in this way: “5… s. 21A(1)(b), read with s. 21A(2) and (3), requires the judge to c......