Modestas Buivis v Deputy Prosecutor General (Republic of Lithuania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 27 October 2020 |
| Neutral Citation | [2020] EWHC 2879 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1566/2020 |
| Date | 27 October 2020 |
[2020] EWHC 2879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/1566/2020
Mary Westcott (instructed by Birds Solicitors) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 27 th October 2020
Judgment as delivered in open court at the hearing
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
Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.
Introduction
I adjourned this application for permission to appeal, together with the other applications that are before the Court, a week ago for the reasons I then gave: [2020] EWHC 2815 (Admin). As I explained, I wished the Respondent specifically to have the opportunity to respond to an argument which had been ‘fleshed out’ and which I outlined at paragraph 3. It concerns section 21A(1)(b) proportionality. My outline was as follows:
The argument has three stages. It arises under section 21A of the Extradition Act 2003 in the context of an accusation EAW. It relates, in particular, to ‘likely penalty’. The first stage of the argument is this. Absent specific information from the requesting state the Court is at least entitled to apply domestic sentencing practice as a measure of likelihood: see Miraszewski [2014] EWHC 4261 (Admin) [2015] 1 WLR 3929 at paragraph 38. The second stage in the argument involves considering likely penalty against relevant domestic case law. Four cases have been identified though in the most recent a further two cases are cited. In date sequence the four cases are Hoxha [2012] EWCA Crim 1765, Picchi [2014] EWCA Crim 2771, Mehmeti [2019] EWCA Crim 751 and Coskun [2019] EWCA Crim 2135. The third stage in the argument is that the answer to the second step then produces the same consequence as arose in Kalinauskas [2020] EWHC 191 (Admin) at paragraphs 16 to 22.
I went on to explain that this point had struck me, on the papers, as one in relation to which it was appropriate to allow the Respondent to respond, as they had confirmed they wished to do and now have.
The Appellant is aged 35 and is wanted for extradition to Lithuania. That is in conjunction with an accusation EAW issued on 27 October 2017 relating to an alleged offence on 4 May 2011 of possession of a forged driving licence. The description in the EAW also refers: to the Appellant as having been “using” that forged driving licence (the meaning of this is contentious and moreover it is not spelled out whether any alleged use said to form part of the crime was as an identity document or for the purposes of driving); to the fact that he had previously been disqualified from driving; and to the fact that he attempted to discard the forged driving licence. DJ Bouch ordered extradition on 2 March 2020, handing down a judgment she had completed and been ready to hand down a year earlier on 5 March 2019. That was after an oral hearing on 11 February 2019 which the Appellant had (as she found) deliberately refused to leave custody to attend. Julian Knowles J on 16 June 2020 granted an extension of time for the Notice of Appeal but then on 17 September 2020 refused permission to appeal and an application to adduce fresh evidence relating essentially to family life, financial support and the impact of extradition on the Appellant's partner and child. Ms Westcott for the Appellant renews the application for permission to appeal on both grounds identified in the Grounds of Appeal: Article 8 ECHR being one; the section 21A(1)(b) proportionality ground (to which my summary related) being the other. She also maintains the application to adduce the fresh evidence and an application to extend the representation order to obtain a report evidencing likely penalty in Lithuania. An Article 3 ECHR prison conditions ground for resisting extradition has been abandoned.
Mode of hearing
The mode of hearing was BT conference call. Ms Westcott was satisfied, as was I, that that mode of hearing involved no prejudice to her client. I am satisfied that the open justice principle has been secured and indeed promoted. The consequence of a remote hearing is that we have eliminated any risk to any person from having to travel to or be present physically in a court room. The hearing and its start time, together with an email address usable by any member of the press or public who wished to observe this hearing, were published in the cause list: all that it took to observe this public hearing was to send an email and make a telephone call. I am satisfied that the mode of hearing was necessary, appropriate and proportionate.
Context
This is in many ways a deeply unattractive case. The Appellant did not appear, as I have said, at his oral hearing on 11 February 2019. That meant that any evidence he may have wished or been able to put forward could not be tested before the primary judicial decision-making and fact-finding authority: the District Judge. The Appellant was eventually re-arrested on 11 February 2020 and there was imposed on him, and served by him, a 6 week custodial term for failing to surrender in breach of his bail conditions (he had been released on bail on 4 December 2018). Further, the District Judge found as a fact that he had left Lithuania as a fugitive. Moreover, his original arrest on 8 January 2018 was in conjunction with a domestic burglary here in the United Kingdom in respect of which he was convicted on his guilty plea on 14 May 2018 and there was imposed on him, and he has served, a five-month custodial sentence in respect of that.
Remand Time Served
Notwithstanding the unattractive backcloth for this case, it remains the position that an accepted feature of the factual matrix is a period of remand served by the Appellant, when excluding time served in relation to other sentences, which would by operation of law qualify for the purposes of analysing the position on extradition. That period of remand has been calculated as 4 1/2 months. The Appellant was released on bail on 7 July 2020 and is currently on bail. The 4 1/2 month remand period is therefore a past period which exists as at today. The arguments being put forward by Ms Westcott do not involve projecting forward while clocking up on going qualifying remand and positing the position as it may be before a substantive appeal Court some months down the line. I have held in another recent case of Molik [2020] EWHC 2836 (Admin) that such an approach would be wrong in principle. But that problem does not arise in this case.
Section 21A(1)(b) proportionality
I start with the section 21A(1)(b) ground of appeal. In my judgment, the three-stage argument which I summarised (and have repeated) remains the central point. I am quite satisfied, having now received the written representations from the Respondent, that the point is reasonably arguable. The Respondent has expressly accepted stages one and two of the three stage argument. As to the first stage, the Respondent does not, at least for the purposes of the arguments for today, seek to maintain the position described by Julian Knowles J in refusing permission to appeal. He said this: “what the penalty would be in this country is not relevant on the facts of this case”. That is not the Respondent's position. The Respondent in its submissions emphasises the District Judge's finding that the ‘likely...
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