Krompalcas v Prosecutor General's Office, Lithuania

Under sections 11 and 14 of the Extradition Act 2003, delay will bar extradition only where it would be unjust or oppressive to return the requested person. A person who deliberately fled the requesting country to avoid prosecution cannot ordinarily rely on the resulting delay, unless the circumstances are most exceptional. The requesting authority must prove deliberate flight beyond reasonable doubt. The requested person bears the ordinary burden of establishing injustice on the balance of probabilities. An appellate court should be slow to interfere with a first-instance judge’s finding of deliberate flight based on oral evidence. Where fairness is genuinely in issue, the focus is whether the person can receive a fair trial and whether the delay has caused tangible detriment to the defence.

The claimant appealed under section 26 of the Extradition Act 2003 against an extradition order made by District Judge Nicholas Evans at Westminster Magistrates’ Court on 12 May 2008. Lithuania sought his extradition under a European Arrest Warrant concerning alleged forgery, possession of forged documents and fraud dating from 1994 and 1995.

The District Judge found that the claimant had deliberately left Lithuania to avoid prosecution and rejected his case that the passage of time made extradition unjust or oppressive. The central issues were whether that finding was properly open to the District Judge and whether the delay created a sufficient risk of an unfair trial.

1. Appeal dismissed. The District Judge was entitled to find, to the criminal standard, that the claimant had deliberately left Lithuania to avoid prosecution. The finding was based on his oral evidence and the surrounding circumstances. Although the District Judge had not expressly stated the burden and standard of proof, nothing suggested that he had applied them incorrectly.
2. The approach in Kakis v Government of Cyprus [1978] 1 WLR 779, as followed in Krzyzowski v Circuit Court in Gliwice, Poland [2007] EWHC 2754 (Admin), applied. Delay attributable to deliberate flight, concealment or evasion cannot ordinarily found an argument that extradition is unjust or oppressive. This case was nowhere near the category of most exceptional circumstances required to displace that rule.
3. The requesting authority bore the burden of proving deliberate flight beyond reasonable doubt. The claimant bore the general burden under section 14 of proving injustice on the balance of probabilities. An appellate court should be very slow to interfere with a first-instance finding of deliberate flight where the judge had heard and assessed the requested person’s evidence.
4. Even if the flight finding were wrong, the claimant had not established injustice. The relevant question was whether he could receive a fair trial. The passage of time, possible loss of business records, the absence of an earlier interview, the availability of copies rather than originals, and uncertainty about one witness did not establish tangible detriment to the defence. The claimant retained a clear recollection and account of the allegations, relevant documents had been retained, and there was no sufficient basis for concluding that key witnesses would be unavailable.
5. Following the consideration in Harvey v Judicial Authority of Portugal - Tribunal Judicial De Albufeira [2007] EWHC 3282 (Admin), weight could also be placed on the ability of the Lithuanian courts to supervise the trial and prevent delay from producing unfairness.

• Westminster Magistrates’ Court: District Judge Nicholas Evans ordered extradition on 12 May 2008 and rejected the passage-of-time objection.
• High Court (Administrative Court): The Divisional Court dismissed the appeal under section 26 of the Extradition Act 2003.