Vadims Jasvins v General Prosecutor's Office Latvia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Mr Justice Swift |
| Judgment Date | 13 March 2020 |
| Neutral Citation | [2020] EWHC 602 (Admin) |
| Docket Number | Case No: CO/1911/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 602 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
and
Mr Justice Swift
Case No: CO/1911/2019
Alun Jones QC and Martin Henley (instructed by Freemans Solicitors) for the Claimant
Nicholas Hearn (instructed by Crown Prosecution Service) for the Defendant
Hearing: 27th February 2020
Approved Judgment
Lord Justice Davis and
A. Introduction
Vadims Jasvins appeals against an extradition order made on 8 May 2019. The order was made in respect of a European Arrest Warrant (“EAW”) issued by the General Prosecutor's Office, Latvia (“the Prosecutor”) on 16 May 2017 and certified by the National Crime Agency (“NCA”) on 24 September 2018. The warrant is a conviction warrant. On 13 November 2010 Mr Jasvins's home had been searched by the police who found 6.499 grams of cannabis. Under Latvian law cannabis is a prohibited narcotic drug. Making an agreement with another person to store cannabis is an offence under paragraph 2 of section 253 of the Latvian Criminal Code. Mr Jasvins pleaded guilty at trial to an offence of agreeing with another person (Karina Nagle) to store cannabis.
Mr Jasvins was sentenced to five years imprisonment, suspended for five years (referred to under Latvian law as a term of probation). The sentence came into effect on 26 November 2012; the period of probation started then and was due to continue until 25 November 2017. During the probation period, Mr Jasvins was required to take part in such programmes as specified by the probation service, and also required not to change his place of residence without consent of the probation service. In July 2012 Mr Jasvins left Latvia and came to the United Kingdom.
In June 2013 at the Daugavpils Court, the court where Mr Jasvins had originally been sentenced, further proceedings took place, this time in respect of his failure to comply with the terms of his probation. Mr Jasvins had failed to register with the probation service and was not living at his declared place of residence. The court concluded that Mr Jasvins was “evading execution of the Court judgment” by not complying with the terms of his probation. The court decided to revoke the suspended sentence and implement the five-year sentence of imprisonment, subject to allowance for a short period Mr Jasvins had already spent in detention between 13 and 15 November 2010.
The EAW in issue in this appeal is not the first warrant issued by the Prosecutor in respect of Mr Jasvins's sentence for the offence under paragraph 2 of section 253 of the Criminal Code. An EAW was first issued on 28 July 2014 (the “July 2014 warrant”). That warrant was certified by the NCA on 16 May 2016. On the same day Mr Jasvins was arrested pursuant to that warrant and he remained on remand throughout the proceedings on that warrant. On 12 August 2016 District Judge Goldspring made an extradition order.
Mr Jasvins appealed. The application for permission to appeal came before Collins J on 8 November 2016. He granted permission to appeal stating the following, as set out in the note of judgment which he approved:
“Note of judgment – Tuesday 8 November 2016
This is a renewed application to appeal the decision given by DJ Goldspring that the appellant should be extradited to Latvia to serve a 5 year sentence for possession of 6.5g of herbal cannabis.
The DJ accepted that the Appellant had been beaten up by the police and badly injured with a broken rib perforated eardrum.
With regard to the ground s13 extraneous circumstances, Mr Henley argued that there been political interference, that argument was properly rejected by the District Judge.
In my judgment there is some real concern about the way this was dealt with in Latvia. The Appellant was arrested in Latvia on 13 November 2010, there is an arrest report of that date. Subsequently, what is headed “Decision in administrative offence case”, records that after examining the case documentation no mitigating or aggregating circumstances relating to the Appellant were identified. There was a fine of 50 Lats and a 52 Lat fee for drug tests a total of over 102 Lats which is the equivalent of about £120.
He was then prosecuted for the more serious offence set out in EAW [that charge having been brought by the same police officer on 6 January 2011], there is no explanation as to why the Appellant was convicted of the more serious case, having already been fined for the less serious administrative offence case. Albeit that it was not put in this way to the DJ, he refers to the decision as a decision of a prosecutor but it was not being the decision of the Police Department.
There is an argument to be raised if it is an abuse of process, it may be the prosecutor was unaware of the police action. There is a real concern raised and it is essential that the Latvian authorities explain the procedure followed. There may also be a double jeopardy argument whilst 5 years for what is a very small quantity of herbal cannabis is very harsh indeed.
I grant permission to appeal and a summary of this judgment should be included in the order.”
In short, Mr Jasvins's response to the July 2014 warrant was to say that he had only been prosecuted under paragraph 2 of section 253 of the Criminal Code because he had complained about being assaulted by the police when his home was searched on 13 November 2010. He said that immediately after the search he had been told he would be charged with an administrative offence under section 46 of the Administrative Offences Code. It is a breach of section 46 to use cannabis other than in accordance with a doctor's prescription. On 6 December 2010 Mr Jasvins was fined and ordered to pay an amount in respect of costs, pursuant to section 46 of the Administrative Offences Code. Mr Jasvins said that it was only after his complaint about the police that he was charged with an offence under paragraph 2 of section 253. When granting permission to appeal Collins J directed that the Prosecutor should, by 7 December 2016:
“… file any further information with regard to the procedure where by the prosecution was instituted despite the administrative offence case issued by the Latvian police on 6 December 2010”.
This was the Prosecutor's opportunity to rebut Mr Jasvins's contention that the charge against him had been laid for an improper reason.
The hearing of the appeal came before Dingemans J on 24 January 2017. Paragraphs 23–25 of his Judgment set out the next part of the narrative:
“23. Collins J directed that the respondent was to file any further information with regard to the procedure whereby the prosecution was instituted, despite the administrative offence case issued by the Latvian police on 6 December 2010, by 7 December 2016. Provision was made for the appellant to file further evidence in reply.
24. It is apparent from the materials before me that no further information has been filed. Miss Bostock explains that, although the order came to the attention of the Crown Prosecution Service who were acting on behalf of the requesting prosecuting authority, the request was not sent. It appears to have then been discovered by the Crown Prosecution Service that the request had not been sent on 10 January and it was then sent, but there is as yet no document from Latvia. I was told this morning that a letter had been sent from Latvia but it was not emailed and attempts to get the information by email failed.
25. Towards the very end of the hearing, Miss Bostock applied for an adjournment, so that the materials could be obtained from Latvia. I refused that application for an adjournment. The application was made at the end of the hearing at a time when it became apparent that the absence of evidence might cause difficulties for the requesting authority rather than for the Appellant. The application should have been made at the beginning at the hearing, rather than after waiting to see how the point developed. Further there does not appear to have been any good reason for the failure to comply with the order of Collins J. This is because overlooking an order is not a good reason. Unnecessary delay would be caused by the adjournment.”
Having refused the application to adjourn, Dingemans J determined the appeal. He dismissed grounds of appeal based on ECHR Article 3 and ECHR Article 8. In respect of the abuse of process ground (i.e. the submission that the charge under paragraph 2 of section 253 of the Criminal Code had been made only in response to Mr Jasvins's complaint against the police), Dingemans J applied the approach specified by the Divisional Court in R(United States of America) v Bow Street Magistrate's Court [2007] 1 WLR 1157 (the case of Tollman). He concluded first that the conduct alleged by Mr Jasvins, if established, was capable of amounting to an abuse of process. Next, based on the information available he concluded that there were reasonable grounds for concluding that the conduct had occurred. Based on the judgment in Tollman the final matter to consider was whether he was satisfied that the abuse had not occurred. Dingemans J stated as follows at paragraph 34 – 38 of his Judgment.
“34. In those circumstances, I need to consider whether I am satisfied that the abuse has not occurred. Miss Bostock, who has made every proper point that could be made on behalf of the Latvian authorities, disadvantaged as they are by the absence of further evidence, has pointed out that there were different offence numbers disclosed on the papers for what had occurred. That is simply a way of saying that obviously having cannabis in the bloodstream is different from the offence of possession of cannabis. However, everything arose out of the same circumstances...
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