R A v Westminster Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Mr Justice Kenneth Parker |
| Judgment Date | 19 March 2013 |
| Neutral Citation | [2013] EWHC 1336 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/78/2013 |
| Date | 19 March 2013 |
[2013] EWHC 1336 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Pitchford
Mr Justice Kenneth Parker
CO/78/2013
Mr J Lewis, QC andMs R Scott (instructed by Mishcon de Reya) appeared on behalf of the Claimant
Mr B Watson (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
This a renewed application for judicial review of a decision made on 27 December 2012 by District Judge Zani in the course of extradition proceedings at Westminster Magistrates' Court, of which the Claimant is the subject. The extradition hearing has been opened, but remains at the stage of directions.
A European Arrest Warrant has been issued under part 1 Extradition Act 2003 by the Prosecutor General's Office ("PGO") of Lithuania. The Claimant is wanted in Lithuania to answer a charge of fraud upon the Snoras Bank. In short, it is alleged that the Claimant transferred deposited money from Lithuania to accounts controlled by him in Switzerland.
The Claimant resists extradition. Among the several grounds of resistance is the assertion made under section 21 of the 2003 Act that if he were to be extradited to Lithuania, the United Kingdom would be in breach of its obligations under Articles 2 and 3 of the ECHR.
It is asserted that the Claimant's life is at real risk from the activities of non-state agents from which Lithuania would be unable or unwilling to protect him. The evidence in support of the assertions, first, that the Claimant's life is in danger and, second, that the Lithuanian authorities would be unable to prevent the taking of his life is the subject of the present claim.
The evidence is that the Claimant was on 3 May 2012 made the subject of an Osman warning from the Metropolitan Police Service. It is unnecessary to specify for what reasons that warning was, upon the written evidence, provided. A similar warning was received from the Investigative Committee of the Russian Federation on or shortly after 22 June 2012. Again, it is unnecessary to specify in this judgment the foundation for the giving of that warning.
The Claimant wishes to rely in support of his resistance to extradition upon witness statements in respect of which he seeks to maintain confidentiality. The evidence falls into two parts. The first purports to demonstrate the background to and the explanation for the risk to the Claimant's life. The second seeks to explain why the Claimant fears that the risk to his life would be increased if he were extradited to Lithuania.
This evidence has been referred to in the proceedings in the Magistrates' Court as the Schedule B2 material. On 27 July 2012, the District Judge ordered that the Schedule B2 material would, for the time being, remain confidential without further order. Only the parties and the Court would have access to it.
In November 2012, as the deadline for service of evidence approached, the Claimant sought from the issuing judicial authority ("IJA") an undertaking as to the confidentiality of the B2 material. On 5 November 2012, the IJA undertook not, without the leave of the Court, to reveal its contents to any third party outside the Prosecutor General's Office. The Schedule B2 material was then served upon the IJA.
Having considered it, the IJA wished to make disclosure of the material to third parties for the purpose of making inquiries into three issues: (1), the claim made on behalf of the Claimant that a gang posed a risk to the Claimant and an assessment of the degree of that risk; (2), the measures that could be taken and would be taken to protect the Claimant in Lithuania from the threat posed; and (3), whether any state agency in Lithuania would be unwilling to protect the Claimant from the threat identified.
Accordingly, on 21 November 2012, the IJA made an application to the District Judge to be released from its undertaking. The IJA submitted to District Judge Zani that it would need to seek information and evidence from the Ministry of Justice with responsibility for prisons and the Ministry of the Interior with responsibility for safeguarding and investigating threats to the Claimant's life.
There followed a divergence of view between the parties as to the terms of the order made by the District Judge, which appears to have bedeviled subsequent contact between the parties.
The note made on the Claimant's side was as follows:
"District Judge Zani held that the third party institutions to whom the confidential information and information was to be provided should be named and should provide written undertakings prohibiting any further use or dissemination thereof. He directed that the parties seek to agree a form of undertaking to that effect. It was directed that the form of the undertaking and the third parties institutions from whom it was to be obtained could be endorsed administratively if agreed between the parties."
The note made on behalf of the IJA following the same proceedings was:
"The IJA shall be permitted to disclose the evidence filed by Mr Antonov in relation to the issues identified in confidential Appendix B to; one, the Ministry of the Interior of Lithuania; two, the Ministry of Justice of Lithuania and; three, any relevant authority, on the condition that the IJA first receives a confidentiality undertaking from the intended recipient, provides a copy of that undertaking to the solicitors acting for Mr Antonov and the solicitors for Mr Antonov confirm that they have no objection to the production of the documents to the intended recipient. If there is any objection to the disclosure of the documents to the intended recipient, then the issue of whether disclosure shall be permitted shall be determined by District Judge Zani."
The essential difference between the two recollections appears to be that the IJA understood it had been given specific permission to make disclosure to the Ministry of the Interior and the Ministry of Justice in Lithuania, whereas it was the recollection and note made on behalf of the Claimant that disclosure to anyone outside the Prosecutor General's Office for Lithuania would require a confidentiality undertaking in a form which was acceptable to the Claimant's solicitors.
The IJA, understanding that it bore a burden of seeking confidentiality undertakings for presentation to the Claimants, communicated with the Ministry of Justice in Lithuania. In response on 27 November 2012, the Ministry of Justice made the following recital to an undertaking it was prepared to give:
"The Ministry of Justice of the Republic of the Lithuania has been informed that an individual in the United Kingdom who is subject to a European Arrest Warrant issued by the Lithuanian Prosecutor General's Office has alleged that there would be a risk to his life from a criminal gang if he were extradited to Lithuania in accordance with that EAW. In the light of this allegation, the Lithuanian Prosecutor General's Office has invited the Ministry of Justice of the Republic of Lithuania to consider this issue and to consider the documents provided by the individual in support of his allegation. However, the Ministry of Justice of the Republic of Lithuania has also been informed by the Lithuanian Prosecutor General's Office that a United Kingdom court has ruled that this material may not be provided to the Ministry of Justice unless a undertaking is given that the material will not be disclosed to any individual and/or office for which the Ministry of Justice of the Republic of Lithuania is not responsible."
There then follows the undertaking:
"Any information provided to the Ministry of Justice of the Republic of Lithuania by the Lithuanian Prosecutor General's Office in relation to this issue will not be disclosed to any individual and/or office for which the Ministry of Justice is not responsible."
A similar undertaking was given or was available from the Ministry of the Interior.
In the meantime, on 26 November 2012, counsel for the Claimant, believing that consequent upon the District Judge's order there should now follow negotiations between the parties as to the appropriate form of undertaking, sent the following proposal to counsel for the IJA:
"We, the undersigned, hereby undertake to Mr Antonov and to the Westminster Magistrates' Court in England that upon receipt from the Prosecutor General's Office of Lithuania of the documents, we will keep the documents (and each and all of them) classified and confidential. The documents will only be used in direct connection with the present extradition proceedings in England. We will not refer to, rely on or otherwise disclose the documents or the information contained within them or the fact that such documents have been produced to any other person for any other reason without first obtaining the permission of the Magistrates' Court in England."
On 28 November, the Claimant was informed of the undertaking given by the Ministry of Justice. The matter was not resolved between the parties in correspondence and the issue was listed before District Judge Zani for a decision.
At that hearing, the IJA informed the judge that the request for an undertaking had caused some consternation within the Ministry of Justice. The undertakings had been signed reluctantly by the acting Minister for each department of state following a submission to that Minister. Lithuania's view was that the mutual confidence between members of...
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