Bucnys (Appellant) v Ministry of Justice, Lithuania (Respondent)

Cite as:[2013] UKSC 71
Hand-down Date:November 20, 2013
 
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Michaelmas Term [2013] UKSC 71 On appeal from: [2012] EWHC Admin 2771 JUDGMENT Bucnys (Appellant) v Ministry of Justice, Lithuania (Respondent) Sakalis (Appellant) v Ministry of Justice, Lithuania (Respondent) Lavrov (Respondent) v Ministry of Justice, Estonia (Appellant) before Lord Mance Lord Kerr Lord Wilson Lord Hughes Lord ToulsonJUDGMENT GIVEN ON 20 November 2013 Heard on 16 and 17 July 2013 Appellant Respondent(Bucnys) (Ministry of Justice, Lithuania) James Lewis QC Julian Knowles QC Joel Smith Mark Summers James Stansfield Hannah Pye (Instructed by Kayders (Instructed by Crown Solicitors) Prosecution Service) Appellant Respondent (Sakalis) (Ministry of Justice, Lithuania) James Lewis QC Julian Knowles QC Ben Cooper Mark Summers James Stansfield Hannah Pye (Instructed by EBR (Instructed by Crown Attridge LLP) Prosecution Service) Appellant (Ministry of Respondent Justice, Estonia) (Lavrov) Julian Knowles QC Alun Jones QC Mark Summers Aaron Watkins James Stansfield Michelle Butler Hannah Pye (Instructed by Kaim (Instructed by Crown Todner Solicitors Ltd) Prosecution Service) LORD MANCE (with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson agree) Introduction 1. These appeals concern requests made for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The requests relating to the appellants Mindaugas Bucnys ("Bucnys") and Marius Sakalis ("Sakalis") come from the Ministry of Justice of the Republic of Lithuania. The third request, relating to the respondent Dimitri Lavrov ("Lavrov"), comes from the Ministry of Justice of the Republic of Estonia. 2. The Ministries made the requests in the form of "European arrest warrants" intended to meet the requirements of Council Framework Decision 2002/584/JHA on the European arrest warrant and surrender procedures between member states of the European Union ("the Framework Decision"). Within the United Kingdom, Part 1 of the Extradition Act 2003 was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency ("SOCA"), the designated authority under section 2(9), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. 3. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a "judicial decision" by a "judicial authority" within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the Ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well-founded in the case of either or both of the Ministries. 4. The Administrative Court (Aikens LJ and Globe J) on 12 December 2012 answered the first question in the affirmative and the second in the negative: [2013] 1 All ER 1220. As to the third, it concluded that a ministry of justice would under European law be regarded as a "judicial authority" for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that "judicial decision" (para 98); it held further that the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant, and that, in the light of these considerations, the requests made by the Ministry of Justice of Lithuania in the cases of Bucnys and Sakalis were valid, while the request made by the Ministry of Justice of Estonia in the case of Lavrov was invalid. Bucnys and Sakalis now appeal, while the Estonian Ministry appeals in the case of Lavrov. The bases of the requests 5. The request in respect of Bucnys results from his conviction for six housebreaking and one fraud offences, for which a total sentence of 5 years 4 months was passed on 29 February 2007. He was released conditionally by the Alytus Region District Court's order on 12 September 2008, but on 20 February 2010 the Vilnius City 1st District Court quashed his conditional release for failure to abide by the condition, requiring him to serve a further period of 1 year 7 months 28 days. The request for his surrender was expressed to be based on this court order dated 20 February 2010. Since preparing this judgment, the court has been informed by those instructed by Bucnys that he has died, presumably since the hearing. The issue raised remains of general importance, and this judgment records the Court's conclusions on it. 6. Sakalis is wanted as a result of his conviction of a series of serious sexual assaults, including buggery, inflicted on the same victim on 28 October 2006. A sentence of 4 years was imposed by the Vilnius City 1st District Court on 25 January 2008, and his appeal was dismissed in his absence by the Vilnius County Court on 24 December 2008. Sakalis absconded before serving any part of this sentence. The request for his surrender was issued by the Minister of Justice signing as representative of the Ministry of Justice. 7. Lavrov is wanted as a result of murder of an invalid paranoid schizophrenic in the nursing home where Lavrov worked as a medical orderly. He was sentenced to 13 years imprisonment on 23 March 2001, released on parole on 14 July 2008 with an obligation to fulfil supervision requirements. He was recalled to prison by the Viru County Court on 2 December 2009 for failure to fulfil such requirements, meaning that he would have to serve a further 4 years 2 months and 25 days in prison, but he absconded. On 9 February 2010 the Viru County Court issued an arrest warrant. On 10 February 2011, it sent a request to the Ministry of Justice to issue a warrant, leading to the Head of the Ministry's International Cooperation Unit issuing the request in issue dated 31 May 2011, expressed to be on the basis of the warrant dated 9 February 2010. Extradition Act 2003 and Framework Decision 8. Section 2 of the 2003 Act, as amended by section 42 of, and paragraph 1(1) of Schedule 13 to, the Police and Justice Act 2006, reads: "Part 1 warrant and certificate (1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains - (a) .... , or (b) the statement referred to in subsection (5) and the information referred to in subsection (6) .... (5) The statement is one that - (a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is - (a) particulars of the person's identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence. (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. (9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State...." 9. The Framework Decision was a "third pillar" measure agreed between member states under Title VI of the Treaty on European Union ("TEU") in its preLisbon Treaty form. The heading of Title VI is "Provisions on Police and Judicial Cooperation in Criminal Matters". The Framework Decision was expressed to be made with regard to the TEU "and in particular Article 31(a) and (b) [sic] and Article 34(2)(b) thereof". Article 31(1)(a) and (b) are for present purposes relevant: "31(1). Common action on judicial cooperation in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the member states, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between member states; ....". 10. The Framework Decision starts with recitals, stating inter alia: "(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions...

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