Derevianko v Government of Lithuania & Anor

For extradition purposes, the relevant offence is the offence for which the claimant was convicted, rather than a later order converting an unserved sentence into imprisonment. An offence is not trivial where the maximum punishment reaches the statutory threshold in both jurisdictions; triviality also depends on the facts of the offending. Under section 11(3) of the Extradition Act 1989, delay may be oppressive even where the requesting state is not responsible. The court must assess the effect of the delay and its consequences, applying the approach in Kakis v Republic of Cyprus. Inordinate delay by the Secretary of State is a relevant circumstance, but discharge requires evidence showing that return would in fact be oppressive.

The claimant, a Lithuanian citizen, sought habeas corpus after being committed for extradition to Lithuania. He had been convicted of negligent bookkeeping under Article 322 of the Lithuanian Criminal Code and sentenced to corrective labour. After he persistently evaded that punishment, a Lithuanian court substituted 11 months’ imprisonment.

He challenged extradition on the grounds that the relevant offence was not an extradition crime, that it was trivial, and that return would be unjust or oppressive because of the passage of time. The Divisional Court considered the construction of section 2(1)(a) and the application of section 11(3) of the Extradition Act 1989.

1. Nature of the extradition offence. The relevant offence was negligent bookkeeping under Article 322, for which the claimant had been convicted. Articles 29 and 411 of the Lithuanian Criminal Code merely empowered the court to convert unserved corrective labour into imprisonment where the offender persistently evaded the sentence. They did not create a separate offence. The equivalent English offence, under section 221(5) of the Companies Act 1985, carried a maximum sentence of two years. The threshold in section 2(1)(a) of the Extradition Act 1989 was therefore satisfied.
2. Triviality. The availability of imprisonment for 12 months or more in both jurisdictions meant that the offence was not legally trivial for section 11(3)(a). In any event, the failure to maintain the accounting records of a substantial trading enterprise for 15 months was not trivial on the facts.
3. Delay and oppression. Applying Kakis v Republic of Cyprus [1978] 1 WLR 779, the court focused on the effects of delay rather than principally on responsibility for causing it. The Secretary of State’s unexplained delay was inordinate and was a circumstance to which the court could have regard under section 11(3)(b). However, the claimant’s established personal and family life in the United Kingdom, on the evidence available, did not show that return would be oppressive.
4. The claim for habeas corpus was refused and the application was dismissed.

not stated in the judgment.