Kuprevicius v Government of Lithuania
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE TOULSON |
| Judgment Date | 18 May 2006 |
| Neutral Citation | [2006] EWHC 1518 (Admin) |
| Date | 18 May 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3040/2006 |
[2006] EWHC 1518 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Richards
Mr Justice Toulson
CO/3040/2006
MR JOEL SMITH appeared on behalf of the APPELLANT
MR GARETH PATTERSON appeared on behalf of the RESPONDENT
Thursday, 18th May 2006
This is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Evans at Bow Street Magistrates' Court on 30th April 2006, ordering the extradition of the appellant. The extradition was requested by the Ministry of Justice of the Republic of Lithuania. The case falls under Part 1 of the 2003 Act.
The warrant alleges that in June 2000 the appellant committed a serious offence of assault, falling within the framework list classification of grievous bodily injury. He was initially acquitted in the County Court but was found guilty by the judgment of the Court of Appeal on 17th March 2005. He was sentenced to two years, six months' imprisonment, of which the period actually required to be served was just under two years. He was present at the hearing before the County Court and the Appeal Court, but did not appear to serve his sentence. The warrant was issued and he was arrested pursuant to it in London on 15th January 2006.
The issue is whether the warrant complies with the requirements of section 2 of the 2003 Act. Those requirements depend upon whether a person's extradition is sought for the purpose of his being prosecuted or for the purpose of his being sentenced or serving a sentence after conviction. The present case falls into the latter, post—conviction category. In that event, the warrant must contain the statement referred to in section 2(5) and the information referred to in section 2(6). The statement referred to in section 2(5) is one that:
"(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory …"
The basis of the appeal is that the warrant does not contain an allegation that the appellant is unlawfully at large and therefore does not comply with section 2(5)(a). No complaint is made about the warrant's compliance with sections 2(5)(b) or 2(6).
The terms of the warrant:
In part (b) of the warrant, under the heading "Decision on which the warrant is based", appear the words:
"Arrest warrant or judicial decision having the same effect: the judgment of the Court of Appeal of Lithuania of 17 March 2005."
That is described as a judgment of conviction. The reference is then made to the judgment of the County Court as amended by the judgment of the Court of Appeal. There follows a note in these terms:
"The convicted person was present in person while hearing his case at the courts of first and appeal instances. By the judgment of the Panevezys court on 12 August 2004, he was acquitted and the remand measure, ie, written pledge not to leave, was cancelled. The Court of Appeal of Lithuania held D Kuprevicius guilty by the judgment of 17 March 2005 and sentenced him to imprisonment. In accordance with Article 342 of the Code of Criminal Procedure of the Republic of Lithuania, an enforceable judgment shall be forwarded for execution not later than within 3 days after the day of referring the case back from the court of appeal instance. The execution of the custodial sentence imposed upon D Kuprevicius was to commence and he was to be detained upon submission of the judgment for enforcement by the Panevezys County Court, which heard the case as the court of first instance, however, D Kuprevicius had absconded from serving the sentence."
Later, in part (f), the warrant refers to a five year statute of limitations with regard to the execution of a judgment of conviction, which is calculated from the day the judgment becomes effective to the day the execution of the judgment commences. It goes on:
"If, after the judgment has become effective, the convicted person attempts to avoid serving the sentence, the calculation of the statutory time shall cease (D Kuprevicius has absconded from serving the sentence.) It shall resume from the day the person arrives of his own free will to serve the sentence or is arrested."
The District Judge's decision:
In rejecting the submission that the warrant did not make clear that the appellant was unlawfully at large, the District Judge stated:
"It is clear from Part (b) of the Warrant that the Defendant has been convicted. The judgment of the Court of Appeal of 17th March 2005 is described as the 'arrest warrant or judicial decision having the same effect'. It is also described as the 'enforceable judgement'. It goes on to describe that he was to be detained but had absconded. He was a free man after his acquittal, but this was overridden by the imposition of the sentence of imprisonment.
I am satisfied to the appropriate standard of proof that a period of imprisonment was imposed. It is the case under the Lithuanian law that the enforcement of the sentence is not carried out by the Court of Appeal, but that the Warrant, as it would be called under English law, is sent to the local court for enforcement. No other process or judicial order intervenes. All that remains is the physical act of arrest. In Lithuania, there is clearly a gap in these circumstances between the pronouncement of the sentence and its enforcement. In English law, if a Defendant were to abscond between the judge passing sentence and his being taken to the cells, the Defendant would be at large. Here the time interval is greater, but the same effect must follow. Further, Mr Kuprevicius was aware of the sentence. I am satisfied that Mr Kuprevicius can be described as 'unlawfully at large'."
The Judge went on to consider whether the exact words must appear in the warrant and, having referred to the Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL67 [2005] 3 WLR 1079, he said that although the words "unlawfully at large" did not appear on the face of the warrant, he was satisfied so as to be sure that the appellant did abscond and could be described as being unlawfully at large.
The appellant's submissions:
In a series of attractively presented submissions, both in his written skeleton argument and orally, Mr Smith, on behalf of the appellant, takes issue with the District Judge's reasoning. He submits that a person is unlawfully at large if he is liable to arrest without further order or judicial process. He derives support for that from Ginova v The Government of the Czech Republic [2003] EWHC 2187 (Admin) at paragraph 7. He submits that that test is not met in the present case. It is clear from the warrant that the remand measure referred to was cancelled after the decision of the County Court and there is nothing to say that it was reinstated. There is nothing to show clearly that the case actually went back from the Court of Appeal to the County Court for enforcement, or that there was any...
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