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SUBSTANTIAL CULPABLE DELAY RENDERED EXTRADITION OPPRESSIVE AND DISPROPORTIONATE

Posted by: Gherson Extradition

SUBSTANTIAL CULPABLE DELAY RENDERED EXTRADITION OPPRESSIVE AND DISPROPORTIONATE

Substantial culpable delay rendered extradition oppressive and disproportionate

On 5 January 2016, in the first published extradition judgment from the Administrative Court of the New Year (Valdas Geleziunas v Lithuania [2016] EWHC 16 (Admin)), Mr Justice Sweeney overturned a decision of District Judge Purdy to extradite Valdas Geleziunas to Lithuania in connection with an allegation of dishonestly obtaining scaffolding equipment worth approximately £8,000.

The allegation dated back to February 2010. The same month the appellant arrived in the UK. The District Judge accepted that he did not arrive here as a fugitive. The Appellant's wife and their then five children came to join him in May 2010. They all lived openly in this country and the Appellant was registered to work with the Home Office. In June 2010 a search was instituted for the Appellant in Lithuania, but without success. On 27 January 2012 a warrant was issued for the appellant's arrest in Lithuania and in April 2012 a European Arrest Warrant ("EAW") was issued.

In May 2012 SOCA (which later became the NCA) were notified about the European Arrest Warrant. They conducted standard checks for the Appellant. However, the Appellant was not located and no further action was taken. The sixth child of the Appellant was born in this country. In February 2014 the NCA (as it then was) received information from Lincolnshire Police as to the Appellant's whereabouts.

The Appellant was arrested on 26 June 2014. At his extradition hearing the court heard that he had ceased work for health reasons and had become the main carer of the six children, and that his wife worked in a factory 5/6 days per week. Two issues in bar of extradition were raised - namely s.14 of the Extradition Act 2003 ("EA") (the passage of time) and s.21 of the EA (Article 8 of the European Convention on Human Rights). The District Judge was not invited, as he should have been, to consider s.21A of the EA, both whether extradition would be compatible with the Article 8 rights of the Appellant and his family and whether extradition would be disproportionate.

The District Judge concluded that there was nothing to suggest that a trial would be unjust because of the passage of time. Whilst the Appellant could not be described as a classic fugitive, there was nothing "unjust" or "oppressive" by reason of the passage of time in the Appellant being extradited. Events had simply caught up with him. As to Article 8, the District Judge accepted that the rights of the Appellant, his wife, and all six of his children were engaged. He weighed, on the one hand, the consequences of extradition (which were not underestimated) in terms of the anxiety, distress and practical consequences for all (as militating against extradition), and the ability of family units to adapt to difficult and challenging circumstances, the presumption of honouring treaty obligations and enforcing cross-border criminal justice, and the adverse impact on public confidence in the impartial administration of justice in the event of an order for discharge (as militating in favour of extradition). He concluded that extradition was not disproportionate to the Article 8 rights of the Appellant and his family.

On Appeal in February 2015 the Administrative Court adjourned for information regarding the delay on the part of the NCA. At all material times, the Appellant had been registered with the Home Office. A straightforward check with the Home Office in 2012 would have revealed the Appellant's presence and thus avoided a culpable delay of two years.

The NCA confirmed that when they were made aware of the EAW in May 2012 the only check that had been conducted had been on the PNC and, as the Appellant had never been arrested here, there was no match. No further action (for example, a check with the Home Office) had been undertaken. It was not until after the information had been received from Lincolnshire Police on 15 February 2014 that Home Office checks had been carried out and the Appellant's address had been identified.

The case of Poland v Adam Celinski & others [2015] EWHC 1274 (Admin) was decided in May 2015. The Divisional Court gave authoritative guidance as to the correct approach when Article 8 issues are raised in extradition proceedings under Part 1 of the EA.

Mr Justice Sweeney held that the District Judge was entitled to find that the Appellant's departure from Lithuania in February 2010 meant that the authorities had no easy way of tracing him. However, that did not explain why a domestic warrant was not issued until January 2012 and why the EAW was not issued until April 2012. The obvious inference, absent an explanation, was that there was a significant element of culpable delay. Equally, it was clear that the EAW first came to the attention of the NCA in May 2012, at which point a basic check with the Home Office would have revealed the Appellant's address, but only a PNC check was carried out - with a negative result. Indeed, even when further information was received by the NCA in July 2013, only another PNC check was done, along with circulation. It was not until February 2014 that database checks were made which included some civil service departments under the Home Office umbrella.

Mr Justice Sweeney was in no doubt that that there had been culpable delay of around at least three years in total in the Appellant's case. Equally, during the course of that delay the Appellant and his wife, along with their children, had put down roots in this country. Indeed their sixth child was born here. The effect of extradition on the family would be significantly greater now than it would have been had there not been culpable delay.

Whilst clearly not trivial, the alleged offence was not of the utmost seriousness and there was no information to suggest that the Appellant was other than of previous good character. Against that background, and in particular the substantial culpable delay, Mr Justice Sweeney concluded that the District Judge was wrong to find that it would not be oppressive for the Appellant to be extradited. He was equally clear that the District Judge was wrong to conclude that extradition was not disproportionate to the Article 8 rights of the Appellant and his family. Given the culpable delay, and the entrenchment of the Appellant's family life here during the interim the interference with family life would be exceptionally severe and thus disproportionate to their Article 8 rights. The appeal was therefore allowed.

 

Thomas Garner

Gherson

6 January 2016

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