Satkunas v Prosecutor Generals Office of Republic of Lithuania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 09 December 2015 |
| Neutral Citation | [2015] EWHC 3962 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 December 2015 |
| Docket Number | CO/3120/2015 |
[2015] EWHC 3962 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/3120/2015
Mr M Hawkes (instructed by Lawrence & Co) appeared on behalf of the Appellant
Miss H Hinton (instructed by CPS) appeared on behalf of the Respondent
(Approved by the court)
The extradition of the Appellant is sought on an accusation European Arrest Warrant issued by the Prosecutor General's Office of Lithuania on 29 May 2014 for the purpose of conducting a criminal prosecution against him for 171 offences of bank fraud alleged to have been committed April and November 2012 in Lithuania.
The nature of the fraud alleged appears to be that he and others misused the bank details of third persons to obtain loans from banks and then possibly after paying a part of the loan or commission to the person whose name had been used, using the proceeds for their own purposes. He asserts that he did no more than work in a business whose business was to assist others to obtain loans. Plainly that is not an issue which it would be proper to attempt to determine in these proceedings, nor possible.
The warrant was certified by the NCA on 11 November 2014. The Appellant was arrested on 6 March 2015. After a contested extradition hearing his extradition was ordered by District Judge Nina Tempia on 26 June 2015.
One ground of challenge only was raised before the District Judge; that extradition would infringe the rights of the Appellant and his wife and two children, aged 3 years and 9 months respectively, to private and family life under Article 8 of the European Convention on Human Rights so that it would be disproportionate under section 21A(1)(a) to extradite him.
The District Judge also, it seems on her own motion, addressed the further question posed by section 21A of whether or not it would be disproportionate under the same section to order his extradition on the basis that less coercive measures would suffice to satisfy the requirements of the requesting judicial authority.
No criticism is made of her conventional Article 8 balancing exercise. She addressed herself in accordance with Celinski and reached a conclusion which was plainly not wrong. I need, therefore, say no more about that.
Two issues have arisen on this appeal. The first which requires permission to be granted is an application to amend the grounds of appeal to allege that extradition is barred by section 12A of the 2003 Act. That provides:
"(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if) -
(a) it appears to the appropriate judge that there are reasonable grounds for believing that -
(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii) the person's absence from the category 1 territory is not the sole reason for that failure
and
(b) those representing the category 1 territory do not prove that —
(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure."
Mr Hawkes for the Appellant submits that although this issue was not raised before the District Judge, it is an issue which he should be permitted to raise on appeal by amendment. He relies on the observations of Stanley Burnton LJ in Hoholm v Norway [2009] EWHC 1513 (Admin) about a Part II case in paragraph 19. Section 104 and section 29 are, for all purposes material to this issue, the same so that Stanley Burnton LJ's observations carry the same weight in relation to a Part I warrant as they would in relation to a Part II warrant. He observed that contrary to the position where fresh evidence is relied on, where an issue is not taken in the extradition court but is available to be taken on appeal it can be taken:
"Where an issue was available to be raised by the Appellant on the evidence adduced at the extradition hearing she is in general, if not always, entitled to raise that issue on appeal to this court even though not raised at the hearing."
Stanley Burnton LJ's observations were noted and departed from by another Divisional Court presided over by Thomas LJ in Mehtab Khan v Government of the United States of America [2010] EWHC 1127 in which at paragraph 42 he observed:
"Section 104 [I interpose the Part II equivalent of section 29] provides the conditions which must be satisfied before an appeal may be allowed; it provides powers to allow an appeal, inter alia on the ground of material which was not available at the extradition hearing; as a matter of construction, I consider that an issue "raised that was not raised at the extradition hearing" and evidence "that was not available at the extradition hearing" mean new issues or new evidence and so an issue "not raised at the extradition hearing" means an issue which, for whatever reason could not then be raised… The Court is concerned with the correctness of the decision of the District Judge on the material before her; it should be only in special circumstances that the Court is invited to overrule a decision on the grounds of either fresh evidence or an issue which could have been raised in the Magistrates' Court but was not."
In the light of those two equally authoritative but different expressions of view about the possibility of raising a fresh issue not raised before the District Judge, I think it is necessary to analyse the nature of the issue sought to be raised by this application to...
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