Gzimaila v Prosecutor General's Office, Lithuania

Section 12A of the Extradition Act 2003 creates a two-stage inquiry. The requested person must first show reasonable grounds for believing both that no decision to charge or try has been made and that the person’s absence is not the sole reason. Only then does the burden move to the requesting territory, which must prove the statutory alternative to the criminal standard.

The European arrest warrant must be read as a whole. Detailed particulars identifying the requested person’s alleged conduct may demonstrate that the pre-trial investigation concerning that person is complete. Unidentified co-suspects or other incomplete investigative matters do not, without more, establish reasonable grounds under section 12A.

The appellant challenged an order made by a District Judge at Westminster Magistrates’ Court on 17 October 2014 ordering his extradition to Lithuania to face prosecution for alleged fraud.

The European arrest warrant stated that extradition was sought for the purpose of conducting a criminal prosecution, but referred to a ruling imposing an arrest measure in a pre-trial investigation. Its particulars described the appellant’s alleged participation in the fraud, while referring to other persons who had not been identified.

The central issue was whether those matters supplied reasonable grounds under section 12A(a) of the Extradition Act 2003 for believing that no decision to charge or try had been made and that the appellant’s absence was not the sole reason for that failure.

1. The appeal was dismissed. The court held that section 12A involves two stages. At the first stage, the requested person bears the burden of showing reasonable grounds for believing both that the competent authorities have not decided to charge or try, and that the person’s absence is not the sole reason for that failure. Only if both matters are established does the respondent bear the burden under section 12A(b), to the criminal standard. This followed the guidance in Kandola & Ors v Generalstaatwaltschaft Frankfurt, Germany & Ors [2015] EWHC 619 (Admin).
2. The warrant had to be considered in its entirety. Its opening statement, detailed account of the appellant’s alleged conduct, and reference to the appellant hiding from pre-trial investigation showed that the investigation concerning him had been completed and that decisions to charge or try had been made. The reference to unidentified participants did not provide reasonable grounds to the contrary.
3. In any event, there was no evidence beyond the warrant capable of raising reasonable grounds that the appellant’s absence was not the sole reason for any failure to make the relevant decisions. The mere reference to another person not having been identified was insufficient.
4. Varnas v Lithuania [2013] ECHR 647 and Rytmetis v Prosecutor General's Office Of The Republic Of Lithuania [2010] EWHC 1048 (Admin) concerned the existence of Lithuanian procedures serving pre-trial and later judicial purposes, or the need to ensure that a warrant’s body did not contradict its prosecution purpose. They did not address the evidential question under the second limb of section 12A(a). The decision in Droma, discussed in Kandola, was distinguishable because the warrant there expressly concerned an investigation warrant and an unknown perpetrator.

• Westminster Magistrates’ Court: on 17 October 2014, the District Judge ordered the appellant’s extradition to Lithuania.
• High Court (Administrative Court): the appeal against that order was dismissed.