Judge directed acquittal Will Paynter

Extradition success in the High Court

Giovanna Fiorentino and the Extradition Team have secured success before the High Court in London for a client facing extradition to Lithuania to serve a prison sentence of 1 year 2 months and 26 days. After an application to re-open an appeal,Mr Justice Ouseley agreed that it would breach the client's Article 8 right to private and family life under the European Convention on Human Rights to return him to Lithuania. A discharge was ordered allowing his appeal. This resulted in the extradition warrant being quashed and the client's removal from the UK being prevented.

The Case Analysis below has been prepared by Westlaw UK and access to the full judgement can be obtained through this Link.

R (on the application of Danielius) v Lithuania

Also known as:

R (on the application of Danielius) v Ministry Of Justice Of Lithuania

Queen's Bench Division (Administrative Court)

25 April 2014

Case Analysis

Where Reported	Unreported
Case Digest	Subject:Extradition Keywords:European arrest warrants; Remand; Sentence length; Judicial review; Appeals Summary:Applying to reopen an appeal against an extradition order, rather than judicial review, was the appropriate route to discharging from detention a Lithuanian man who had served his whole sentence on remand in the United Kingdom while waiting for a point of law to be certified following an unsuccessful appeal. Abstract:The applicant (D) applied to reopen an appeal against a district judge's decision to extradite him to Lithuania. D alternatively claimed judicial review of the National Crime Agency's exercise of its power to remove him from the United Kingdom and interim relief preventing his removal. D had been detained pursuant to a European arrest warrant since January 12, 2013 and a district judge had ordered his extradition so that he could serve a sentence of one year, two months and 26 days. His appeal was heard with several other Lithuanian cases on February 3 and 4, 2014 and judgment was delivered on February 24. The appeals were dismissed on general grounds. Less than two months remained on D's sentence by the time of the appeal hearing and he had served one year and fifty days by the time the judgment was given, however, the court held that there was a clear public interest in extraditing him to serve the remainder. D applied on March 6 for a point of law of public importance to be certified. That application was refused on April 8, by which time his sentence was either spent, or nearly spent. D claimed judicial review of the Lithuanian Ministry of Justice's failure to withdraw the warrant. The instant court adjourned the matter and suggested that the Lithuanian Ministry of Justice was not the proper defendant and that an application to reopen the appeal should have been made. The application was amended. By the time of the instant judgment D had served more time than his sentence required. Application granted and appeal allowed. The Council Framework Decision on the European arrest warrant art. 26 provided that all remand periods were to be deducted from sentences. It was an abuse of process and disproportionate to extradite an individual if his or her sentence had been served,Newman v Poland [2012] EWHC 2931 (Admin)applied. It was clear that D should not be removed pursuant to the warrant and that, given the time he had already served, he should be discharged. The concern was how to properly achieve that. Judicial review was theoretically available where the National Crime Agency was contemplating removal, but it was difficult to see the basis for it after certification. The purpose of theExtradition Act 2003had been to streamline procedures and remove avenues for challenge other than those which were provided for in the Act. The court should not allow judicial review to become a collateral challenge to concluded proceedings. The appropriate method to deal with the instant case was by application to reopen the appeal underCPR r.52.17. Where appellants sought certification for points of law in order to delay removal and remain in UK detention, periods of delay should be discounted from the calculation of remaining sentence, but the position was difficult where, as a matter of fact, the sentence had expired. Newmancontained an unanswerable ground of appeal. Reopening the appeal where time had expired was the correct route as the point was a proper ground of appeal which could not have been previously run. Interim applications made pursuant to applications to reopen could be made as soon as those made pursuant to applications for judicial review and, although made on paper, were not precluded from being heard orally. The practice direction did not go so far as to require that an application to reopen had to be heard by the same court which had dealt with the original appeal and an interim application could be heard by a judge who had not heard the appeal. In D's case it was abundantly clear that the test in CPR 52.17 had been satisfied, that he should not be removed and that the appeal was bound to be allowed. The warrant was quashed. The course taken was exceptional but the case permitted only one answer. Permission for judicial review was refused. Judge:Ouseley, J.Ouseley, J Counsel:For the applicant: Richard Dobbs For the respondent: Nicholas Hearn

Where Reported

Unreported

Case Digest

Subject:Extradition

Keywords:European arrest warrants; Remand; Sentence length; Judicial review; Appeals

Summary:Applying to reopen an appeal against an extradition order, rather than judicial review, was the appropriate route to discharging from detention a Lithuanian man who had served his whole sentence on remand in the United Kingdom while waiting for a point of law to be certified following an unsuccessful appeal.

Abstract:The applicant (D) applied to reopen an appeal against a district judge's decision to extradite him to Lithuania. D alternatively claimed judicial review of the National Crime Agency's exercise of its power to remove him from the United Kingdom and interim relief preventing his removal.

D had been detained pursuant to a European arrest warrant since January 12, 2013 and a district judge had ordered his extradition so that he could serve a sentence of one year, two months and 26 days. His appeal was heard with several other Lithuanian cases on February 3 and 4, 2014 and judgment was delivered on February 24. The appeals were dismissed on general grounds. Less than two months remained on D's sentence by the time of the appeal hearing and he had served one year and fifty days by the time the judgment was given, however, the court held that there was a clear public interest in extraditing him to serve the remainder. D applied on March 6 for a point of law of public importance to be certified. That application was refused on April 8, by which time his sentence was either spent, or nearly spent. D claimed judicial review of the Lithuanian Ministry of Justice's failure to withdraw the warrant. The instant court adjourned the matter and suggested that the Lithuanian Ministry of Justice was not the proper defendant and that an application to reopen the appeal should have been made. The application was amended. By the time of the instant judgment D had served more time than his sentence required.

Application granted and appeal allowed. The Council Framework Decision on the European arrest warrant art. 26 provided that all remand periods were to be deducted from sentences. It was an abuse of process and disproportionate to extradite an individual if his or her sentence had been served,Newman v Poland [2012] EWHC 2931 (Admin)applied. It was clear that D should not be removed pursuant to the warrant and that, given the time he had already served, he should be discharged. The concern was how to properly achieve that. Judicial review was theoretically available where the National Crime Agency was contemplating removal, but it was difficult to see the basis for it after certification. The purpose of theExtradition Act 2003had been to streamline procedures and remove avenues for challenge other than those which were provided for in the Act. The court should not allow judicial review to become a collateral challenge to concluded proceedings. The appropriate method to deal with the instant case was by application to reopen the appeal underCPR r.52.17. Where appellants sought certification for points of law in order to delay removal and remain in UK detention, periods of delay should be discounted from the calculation of remaining sentence, but the position was difficult where, as a matter of fact, the sentence had expired. Newmancontained an unanswerable ground of appeal. Reopening the appeal where time had expired was the correct route as the point was a proper ground of appeal which could not have been previously run. Interim applications made pursuant to applications to reopen could be made as soon as those made pursuant to applications for judicial review and, although made on paper, were not precluded from being heard orally. The practice direction did not go so far as to require that an application to reopen had to be heard by the same court which had dealt with the original appeal and an interim application could be heard by a judge who had not heard the appeal. In D's case it was abundantly clear that the test in CPR 52.17 had been satisfied, that he should not be removed and that the appeal was bound to be allowed. The warrant was quashed. The course taken was exceptional but the case permitted only one answer. Permission for judicial review was refused.

Judge:Ouseley, J.Ouseley, J

Counsel:For the applicant: Richard Dobbs For the respondent: Nicholas Hearn

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