R(Navadunskis) v Serious Organised Crime Agency

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLORD JUSTICE MAURICE KAY,MR JUSTICE COLLINS
Judgment Date22 May 2009
Neutral Citation[2009] EWHC 1292 (Admin)
Date22 May 2009
Docket NumberCO/10590/2008

[2009] EWHC 1292 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Before: Lord Justice Maurice Kay

Mr Justice Collins

CO/10590/2008

Between
The Queen on the Application of Navadunskis
Claimant
and
The Serious Organised Crime Agency
Defendant

Mr David Chirico (instructed by Elizabeth Millar Solicitors) appeared on behalf of the Claimant

Mr Jonathan Swift and Mr Ben Watson (instructed by Serious Fraud Office) appeared on behalf of the Defendant

Mr John Jones (instructed by CPS Serious Crime Division) appeared on behalf of the Interested Party (CPS)

LORD JUSTICE MAURICE KAY
1

: Part 1 of the Extradition Act 2003 gives effect in this jurisdiction to the Council of Europe Framework Decision on the European arrest warrant and the surrender procedures between Member States.

2

In this application for judicial review, the claimant is a citizen of Lithuania. His extradition pursuant to a European arrest warrant has been sought by the Prosecutor General's office in Lithuania to face trial in that country.

3

The procedural position is that there was an extradition hearing before a District Judge which resulted in an order for the claimant's extradition. Thereafter, he issued a notice of appeal in time but he did not serve it in time. By reference to the relevant provisions as now construed by the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276, there never was a properly constituted appeal to this court. In fact, what happened was that a consent order withdrawing the extradition appeal was made.

4

Under Part 1 of the 2003 Act, once forensic procedures provided for by Part 1 have been exhausted, it is anticipated that extradition will take place within a very short period of time. By section 35(3) the person must be extradited before the end of the required period and by section 35(4) the required period is (a) 10 days starting with the first day after the period permitted for giving notice of appeal against the judge's order, or (b) if the judge and the authority which issued the Part 1 warrant agree a later date, ten days starting with the later date.

5

That very short time period is entirely consistent with the whole purpose of Part 1 of the 2003 Act. The purpose, as expressed in the recitals to the Framework Decision was to simplify and speed up extradition within Europe. The underlying assumption of Part 1 is that there is a level European playing field and a mutual interest in efficient and effective extradition. However, it is appreciated that in an individual case there may be reasons not to extradite for, amongst other things, human rights considerations.

6

Accordingly, section 11 lists a number of bars to extradition, one of which (section 21) is a human rights bar. However, the assumption is that once all statutory procedures have been exhausted, extradition will rapidly follow.

7

I turn now to the facts of this case. The claimant is sought by the Lithuanian authorities for offences alleged to have been committed in January 1997. They are allegations equivalent to aggravated burglary, assault occasioning actual bodily harm and possession of an offensive weapon. The claimant arrived in this country on 15th February 1997. Initially he was refused leave to enter, but he forthwith applied for asylum. On 9th June 1997 formal charges were preferred in Lithuania and a domestic arrest warrant was issued. At that time the Lithuanian authorities did know the claimant's whereabouts.

8

His application for asylum was refused by the Secretary of State on 18th July 1997. He appealed to a special adjudicator, but his appeal was dismissed on 24th February 1998. It is notable that his factual account was substantially disbelieved by that special adjudicator.

9

He remained in this country and in January 2001 further submissions were made to the Secretary of State regarding asylum. On 31st January 2001 an application was made to the Home Office on the basis of establishing a business under the EU association agreement. That application was refused on 19th February 2001.

10

Yet further submissions were made by reference to asylum. But on 22nd November 2001 his further asylum submissions were rejected on the basis that they did not amount to a fresh claim and they enjoyed no realistic prospect of success. That appears to have prompted a change of tack, in that on 1st December 2001 further submissions were made on his behalf to the Secretary of State, this time by reference to the Human Rights Act.

11

That human rights application has never been the subject of a formal determination. The reason for that is abundantly clear. On 1st May 2004 Lithuania became a member of the European Union. From that date the claimant was no longer at risk of administrative removal, pursuant to immigration law, because of his citizenship of the European Union. On 29th June 2005 he and his wife, who is I think Ukrainian, were issued with an EU residence permit.

12

In 2006 the Lithuanian authorities discovered that the claimant was in this country. On 29th November 2006 the European arrest warrant was issued. It was certified by the Serious Organised Crime Agency (“SOCA”) on 20th April 2007 and on 7th June 2007 the claimant was arrested in this country. That led to a contested extradition hearing before a District Judge on 29th August 2007, the outcome of which was that the District Judge ordered the claimant's extradition. As I have related, there was no effectively constituted appeal from that decision because the claimant's notice of appeal was not served in time.

13

On 1st November 2007 the claimant's immigration solicitors, a different firm from those acting for him in the extradition proceedings, wrote to the Crown Prosecution Service, asserting that he had an immigration claim outstanding and that extradition would be unlawful. Further representations were made on 18th March 2008. I should add that the Crown Prosecution Service, acting on behalf of the Lithuanian authorities, has obtained from a District Judge an extension of time for extradition, pursuant to section 35.

14

On 1st November 2008 the claimant was informed of arrangements for his imminent surrender, but that prompted the claim form in the present proceedings on 4th November 2008.

15

It is quite obvious that the present application, if properly conceived, would manifest a development outwith the original expectation of the Framework Decision and Part 1 of the 2003 Act. The purpose of the 2003 Act, as I have explained, was simplification and expedition. It was designed to avoid the kind of serial applications which used to be quite common in extradition, as one remedy and then another was sought on what sometimes appeared to be a rolling basis.

16

The question we have to consider is whether there is any scope for this application in the circumstances that have arisen.

17

I do not propose to burden this judgment with extensive citation of authority. Suffice it to say that I consider what follows to be entirely in accord with recent judicial consideration of the 2003 Act in both Part 1 and Part 2 cases, and I consider the approach that I am taking to be consistent with Office of the Kings Prosecutor Brussels v Cando Armas [2005] UKHL 67; Dabass v High Court of Justice of Madrid; R (Hilali) v Governor of Whitemoor Prison [2008] 1 AC 805; Ignaoua v Judicial Authority of the Courts of Milan [2008] EWHC 2619 (Admin); [2008] WLR (D) 340 and Taylor v HMP Wandsworth & Ors [2009] EWHC 1020 (Admin). Only the last, Taylor, was a Part 2 case.

18

The typical scenario arising in a case such as the present one is an attempt to seek relief by way of judicial review, following failure in the statutory procedures provided for in the 2003 Act. In one sense that may be thought to be bold, because section 34 of the Act, applying in Part 1 cases, and section 116 applying in the same way in Part 2 cases, provides that:

“A decision under this Part of the judge… may be questioned in legal proceedings only by means of an appeal under this Part.”

19

However, it has been acknowledged that in a rare case there may be a supervening event, following the exhaustion of the statutory procedures under the Act, which necessitates a further consideration, particularly on human rights grounds.

20

I say “rare” because the possibility, it seems to me, must be limited to supervening events, or supervening knowledge which could not have been acquired earlier, and as the time frame following the completion of the statutory procedures is so short, one would have thought that inevitably there is little scope for significant supervening events or knowledge to arise. However, one must accept them as a possibility. In the course of argument, hypothetical examples have been referred to, such as, for example, a coup in the requesting state, leading to a change of government and perhaps an outbreak of genocidal behaviour which would render it wholly inappropriate to surrender the fugitive to that country.

21

Alternatively, somebody who was or seemed to be in good health at the time of the extradition hearing and any subsequent appeal may suddenly be afflicted by some grave condition that would render it a breach of his human rights to surrender him at that moment. As I have indicated, that might extend in an appropriate case to something such as a pre-existing condition, of which the person only became aware after the extradition hearing.

22

The authorities to which I have referred acknowledge these possibilities and it seems to me that since the act of surrender by the authorities in this...

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