Baksys v Ministry of Justice of the Republic of Lithuania

For extradition after conviction, the question whether the person was convicted in his presence concerns the conviction and sentence originally imposed. Later enforcement of that sentence after cancellation of a deferral is not a fresh conviction or fresh sentence unless evidence establishes that it involved a distinct decision of that kind.

A requesting state need not initially produce evidence explaining an issue raised by the person resisting extradition. That obligation may arise if the requesting state seeks to answer evidence advanced by the appellant. An appeal based on human rights incompatibility cannot succeed without an evidential basis showing that extradition would breach the relevant rights.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to Lithuania. He had been convicted and sentenced in his presence in Lithuania to seven months’ imprisonment, with execution of the sentence deferred subject to conditions. After he left Lithuania, the deferral was cancelled in his absence and he was required to serve the original sentence.

The central issues were whether the cancellation constituted a fresh conviction or sentence for the purposes of section 20, whether Lithuania had to provide further evidence about the cancellation hearing, and whether extradition would be incompatible with his rights under Articles 5 and 6.

1. Appeal dismissed. The appellant had been convicted and sentenced in his presence on 13 March 2002. Section 20(1) of the Extradition Act 2003 meant what it said. The statutory distinction between conviction and sentence elsewhere in the Act supported that conclusion.

2. The appellant’s argument depended on treating the 10 May 2004 ruling as a fresh decision imposing custody because of breaches of the deferral conditions. The evidence did not establish that characterisation. On the material before the court, the ruling merely enforced the original sentence. It therefore involved no fresh conviction, fresh order, or fresh imposition of sentence.

3. The requesting state was not required, simply because it sought extradition, to produce evidence explaining an issue raised by the appellant. Such an obligation could arise if the state wished to resist the implications of evidence advanced by the person opposing extradition. That situation did not arise here.

4. The reliance on Pilecki v Circuit Court of Legnica, Poland [2007] EWHC 2080 (Admin) did not assist the appellant. That decision concerned a different attempt to raise, for the first time on appeal, an allegation that the appellant had been absent. Here, Lithuania had long known the substance of the complaint.

5. The human rights argument under section 3 of the Human Rights Act 1998, considered with the compatibility obligation in section 21 of the Extradition Act 2003, failed because there was no evidence that the 2004 ruling was anything other than enforcement of the sentence imposed in the appellant’s presence. No breach of Articles 5 or 6 was established.

• High Court (Administrative Court): District Judge Evans ordered extradition on 15 August 2007. The Divisional Court dismissed the appeal under section 26 of the Extradition Act 2003.