Jaroslav Atraskevic v Prosecutor General's Office, Republic of Lithuania

JurisdictionEngland & Wales
JudgeLord Justice Aikens
Judgment Date30 January 2015
Neutral Citation[2015] EWHC 131 (Admin)
Docket NumberCase No: CO/3737/2014
CourtQueen's Bench Division (Administrative Court)
Date30 January 2015

[2015] EWHC 131 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Aikens

Mrs Justice Nicola Davies

Case No: CO/3737/2014

Between:
Jaroslav Atraskevic
Appellant
and
Prosecutor General's Office, Republic of Lithuania
Respondent

David Josse QC & David Williams (instructed by Claude Hornby & Cox) for the Appellant

Mark Summers QC & Saoirse Townshend (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent

Hearing dates: 11/11/2014

Lord Justice Aikens
1

This is the judgment of the court to which both of us have contributed. Before the court is a statutory appeal under sections 26 and 27 of the Extradition Act 2003 ("the EA"). It raises a novel issue concerning the new "forum bar" provision in section 19B of the EA, which was inserted in the EA by Schedule 20 Part 1, paragraph 3 of the Crime and Courts Act 2013.

The procedural history and the issues raised on this appeal.

2

This is an appeal by Jaroslav Atraskevic, whom we shall call the appellant, from the decision and order of District Judge Purdy, ("the DJ") which he made on 5 August 2014. The DJ ordered the surrender of the appellant pursuant to a European Arrest Warrant, (EAW), issued by the Prosecutor General's Office of the Republic of Lithuania, whom we will call the Lithuanian judicial authority or JA. The EAW was issued on 3 September 2012. Lithuania is an EU member state and has been designated a Category 1 territory pursuant to section 1 of the EA. The EAW was certified under section 2(7) of the EA by the Serious Organised Crime Agency on 20 January 2013. This case is therefore governed by the provisions of Part 1 of the EA.

3

The appellant was arrested pursuant to section 3 of the EA on 9 February 2013 and has since been remanded on conditional bail.

4

The surrender of the appellant is requested by the Lithuanian judicial authority in order that he face trial for a joint enterprise offence of organising the transportation of prostitutes from Vilnius, Lithuania, to Birmingham, UK, and then gaining profits from the acts of prostitution of those transported during the period from 27 March 2009 to 7 September 2011. The EAW is, therefore, what is often called an "accusation" warrant.

5

The criminal code of Lithuania provides, in Articles 5 and 307, that an offence is committed if a person "organises or is in charge of prostitution or transports a person with her consent for prostitution….from the Republic of Lithuania" and "gains profit from the prostitution of another". This is not one of the listed extradition offence as such, but it plainly meets the test of "dual criminality" set out in sections 10 and 64 of the EA. Although the question of "dual criminality" was contested below, there is now no challenge to the preliminary ruling of DJ Zani, given on 23 July 2013, holding that the requirements of "dual criminality" were met.

6

The appeal specifically raises two challenges to the judgment of the DJ. First, it is argued that the "forum bar" provisions in section 19B of the EA apply in this case, so that it is in the interests of justice that the appellant is not extradited. Secondly, it is submitted that it would be contrary to the Article 8 rights of the appellant for him to be surrendered, so that the DJ should have ordered his release under section 21 of the EA.

7

In addition, the appellant seeks leave to argue a point that was expressly abandoned below, concerning prison conditions in Lithuania, in particular overcrowding in prisons. It is said that a surrender to the Lithuanian Judicial Authority would be contrary to the appellant's Article 3 rights and so it is barred under section 21 of the EA. In support of this new argument the appellant wishes to adduce evidence of which (obviously) none was before the DJ. In a case management order dated 27 October 2014, Aikens LJ ruled that the issue of whether leave should be given to argue this new point and whether any evidence could be adduced on appeal in support of it would be dealt with at the hearing of the appeal on the other two issues. He further ruled that if the court granted leave to pursue that point, then there would have to be a further hearing of that issue, to be held sometime early in 2015.

The Factual Background in some more detail.

8

The appellant was born in Lithuania on 22 June 1972, so he is now 42 years old. He was brought up and went to school in Lithuania until the age of 16. After that he worked in a factory in Vilnius, Lithuania. He came to the UK on a visit for the first time in 2003. He returned to the UK in 2004 and has lived here ever since. He obtained British Citizenship on 17 August 2012. He has a partner who is a Lithuanian citizen and they have a daughter who was born in the UK and is now nine years old. The daughter does not speak Lithuanian. The family lives in Birmingham.

9

The allegations against the appellant are set out very fully in Box (e) of the EAW. The English version is quoted in the judgment of DJ Purdy at paragraph 4. We would summarise the allegations as follows: the appellant is accused of taking part in a joint enterprise with three other Lithuanians to recruit prostitutes in Lithuania, transport them (with their "consent") to Birmingham where they acted as prostitutes. The three organisers then took 50% of the prostitutes' earnings. Four prostitutes were involved altogether during the period from March 2009 to September 2011.

The "Forum Bar" provisions in section 19B of Part 1 of the Extradition Act 2003.

10

As already noted, sections 19B – 19F were inserted into the EA by the Crime and Courts Act 2013. The sections are not based on the underlying EU Framework Decision of 2002, nor that of 2009. These statutory provisions are therefore purely domestic in origin.

11

Section 19B(1) to (4) provide:

(1) The extradition of a person ("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.

(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge –

(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and

(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

(3) These are the specified matters relating to the interests of justice –

(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;

(b) the interests of any victims of the extradition offence;

(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;

(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;

(e) any delay that might result from proceeding in one jurisdiction rather than another;

(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to –

(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and

(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;

(g) D's connections with the United Kingdom.

(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.

12

Section 19B(6) defines further the phrase "relevant activity" that is used in section 19B(2)(a). Section 19B(6) provides:

(6) In this section "D's relevant activity" means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D.

13

The scheme of section 19B is clear. If a "forum bar" point is raised, the judge has to decide whether the extradition of a person to a category 1 territory "would not be in the interests of justice". In making that decision the judge has to be satisfied on two questions. First, he has to decide whether a substantial measure of the requested person's "relevant activity" was performed in the UK. Whether a "substantial measure" of the requested person's "relevant activity" occurred in the UK will usually be exclusively a question of fact, which will be determined by the "appropriate judge". If this pre-condition is not satisfied then that is the end of this issue. The statutory "forum-bar" cannot operate in that case.

14

However, if the judge does decide that a "substantial measure" of the requested person's "relevant activity" was performed in the UK, then he has to decide whether it is in the interests of justice that the extradition should not take place. The judge will do so by first of all "having regard" to all the matters that are specified in section 19B(3). The judge cannot take any other factors into account, apart from the one in section 19B(4) concerning disclosure. One or more factors may or may not be relevant on the facts of a particular case: but in all instances the judge must "have regard" to each of the factors. The weight to be given to each of the specified matters set out in section...

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2 firm's commentaries
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