Modestas Buivis v Deputy Prosecutor General (Republic of Lithuania)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] EWHC 2042 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1566/2020 |
[2021] EWHC 2042 (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/1566/2020
Mary Westcott (instructed by Birds Solicitors) for the Appellant
Catherine Brown (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 13 July 2021
Approved Judgment
Introduction
The appellant is sought pursuant to a European Arrest Warrant (“EAW”) issued on 27 October 2017 and certified on 8 November 2017. The EAW seeks the appellant's surrender to face trial for one offence of possession of a counterfeit driving licence said to have been committed on 4 May 2011.
The appellant's initial hearing before Westminster Magistrates' Court was adjourned because he was facing proceedings for burglary. He pleaded guilty to that charge at Luton Crown Court in April 2018 and was sentenced to 5 months' imprisonment. He was released from custody on 27 July 2018.
Extradition proceedings took place after that. There was an extradition hearing before District Judge Bouch (“the judge”) on 11 February 2019. The appellant did not attend and absconded. He was not arrested until February 2020. The judge prepared her judgment on 5 March 2019 but did not hand it down until 2 March 2020.
Since his arrest, the appellant has spent some 4 1/2 months in custody on remand and a further period of about a year on a monitored curfew.
There are two grounds of appeal, which overlap. The first is that the judge should have found that extradition would be disproportionate for the purposes of s. 21A(1)(b) of the Extradition Act 2003 in the light of the relative lack of seriousness of the conduct alleged to constitute the offence and/or the likely penalty that would be imposed. This ground proceeds with the permission of Fordham J, granted on 27 October 2020.
The second is that the judge should have concluded that extradition would be incompatible with the appellant's rights under Article 8 of the European Convention on Human Rights (“ECHR”) and/or that I should now reach that conclusion on the basis of fresh evidence not before her. Permission for this ground is to be considered on a “rolled up” basis.
An application for permission to apply for permission to appeal on a further ground, based on the contention that the appellant faced a real risk of being detained in Lithuania in conditions that would breach Article 3, was not pursued. That application was abandoned.
Proportionality: s. 21A(1)(b)
The law
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 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.
6. 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.
7. 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.”
Submissions for the appellant
Ms Westcott, for the appellant, noted that, at [36] of his judgment in Miraszewski, Pitchford LJ had also said that “the maximum penalty for the offence is a relevant consideration but it is of limited assistance because it is the seriousness of the requested person's conduct that must be assessed”. For example, 7 years' imprisonment was the maximum sentence for theft, but no-one would think that maximum very helpful in assessing the seriousness of an offence of shoplifting.
In the EAW, the description of the conduct alleged against the appellant was in these terms:
“On 4 May 2011, at about 10:00 hr., in the Republic of Lithuania, Klaipeda, in Uosto Frontier Station, Malku Ilankos Border Crossing Point, while being in the service car Mitsubishi Pajero belonging to Coast Guard District which was taking him to the police office, Modestas Buivis was in possession of a knowingly forged driver's licence. It was established that Modestas Buivis has been deprived of the right to drive from 1 July 2008 to 1 September 2012. In the forged driver's licence it was indicated that the licence was issued on 15 May 2010, which means that Modestas Buivis was well aware that he has a knowingly forged driver's licence, and was using that licence for a rather long period of time, i.e. from 15 May 2010 to 4 May 2011. Besides, he disposed of this false document by throwing it away in the abovementioned service car, which also shows that he was aware of the criminal liability for such conduct.”
Ms Westcott says that the conduct alleged is simple possession of a forged document. There is no conduct alleged to support the inference that the appellant had used it, whether to drive or for any other purpose. She relies on Rinkevicius v Prosecutor General's Office, Lithuania [2018] EWHC 145 (Admin), where Ouseley J allowed an appeal in a case where the appellant was sought for a single offence of forgery of administrative documents, which carried a maximum sentence of three years. At [11], he concluded that in a case where s. 21A was raised, it was for the issuing authority to show that the offence was not excluded by that section. At [12], he noted that “the language of the Act concerns the likely sentence and is not related to the maximum sentence in any direct way”. At [19], he considered the seriousness of the conduct and the likely sentence together, concluding that “although extradition may be ordered for a non-custodial sentence or for measures that include a fine and probation, looking at what is alleged here and what is evidenced, it would be disproportionate for the appellant to be extradited”.
Ms Westcott also relied on Kalinauskas, to which I referred in Peikauskas.
Since there was no indication in the papers from the Lithuanian authority of the likely sentence, it was necessary to consider English sentencing authorities. The closest analogy was the offence of possessing a false identity document with improper intention contrary to s. 4 of the Identity Documents Act 2010 (“the 2010 Act”).
In Hoxha [2012] EWCA Crim 1765, the defendant was stopped while driving and produced a forged Albanian driving licence. He had been driving habitually using this forged licence. He was not of good character. The Court of Appeal quashed a sentence of 8 months' imprisonment and substituted one of 4 months' imprisonment.
In Picchi [2014] EWCA Crim 2771, the defendant was found in possession of a false Italian driving licence and a genuine Italian identity card. A sentence of 4 months' imprisonment (consecutive to another sentence) was quashed and a sentence of 2 months' imprisonment substituted.
In Mehmeti [2019] EWCA Crim 751, the defendant was stopped while driving and presented a false Portuguese driving licence. The defendant was not of good character. A sentence of 10 months' imprisonment after credit for plea was too long and was quashed. A sentence of 6 months' imprisonment after credit for plea was substituted.
Finally, in Coskun [2019] EWCA Crim 2135, the appellant sent a forged Belgian driving licence to the DVLA as part of an application for a UK licence. He was charged with an offence under s. 6 of the 2010 Act, which did not require proof of improper purpose. Nonetheless, there was an overlap between the offences under ss. 4 and 6 and a sentence of 4 months' imprisonment was not manifestly excessive or wrong in principle.
On the basis of these authorities, Ms Westcott said that, applying the English authorities in the absence of any information from Lithuania about the likely sentence, a sentence of about 4 months' imprisonment is likely. This is less than the appellant has already served on remand.
Submissions for the respondent
For the Lithuanian authority, Ms Brown submitted that the only question under s. 21A(3)(b) was “the likely penalty that would be imposed”. This meant that the question whether that penalty exceeded the time already spent on remand...
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