Miniauskas v Lithuania Judicial Authority

Under Extradition Act 2003, section 12A, the requested person must first establish reasonable grounds for believing that the relevant decision to charge or try has not been made and that absence from the requesting territory is not the sole reason. Only then does the requesting authority bear the criminal burden of proving the statutory alternative. The provision must be interpreted cosmopolitanly, accommodating differences between common-law and civil-law criminal procedures. A warrant may satisfy the accusation-warrant requirements by necessary implication where its terms make clear that extradition is sought for prosecution rather than investigation. Evidence that the requesting authority has obtained substantial material capable of supporting prosecution may defeat a section 12A challenge, even though further questioning or handwriting evidence is desirable.

The appellant appealed against an order for his extradition to Lithuania made by District Judge Blake on 15 June 2015. The European Arrest Warrant sought his surrender for prosecution concerning alleged thefts from ATMs and concealment of company accounting records.

Permission to appeal was granted. The appellant argued that the warrant did not satisfy section 2(3) of the Extradition Act 2003 and that extradition was barred by absence of prosecution under section 12A. The central issues were whether the warrant was sufficiently an accusation warrant and whether the statutory burden under section 12A had been met.

1. Appeal dismissed. The warrant was not a conviction warrant. Although it did not expressly state that the appellant was accused, its request for arrest and surrender for the purpose of conducting a criminal prosecution necessarily implied that he was accused of the specified offences. The requirements of section 2(3) were therefore satisfied.

2. The District Judge had conflated the two stages under section 12A. The appellant first had to show reasonable grounds for believing both that a decision to charge or try had not been made and that his absence was not the sole reason for that failure. If that threshold were met, the requesting authority would have to prove to the criminal standard that the relevant decisions had been made or that absence was the sole reason for their absence.

3. Section 12A required a cosmopolitan interpretation because civil-law systems may not use a formal charge equivalent to that known to common-law systems. The court proceeded on the assumed basis that the commencement of judicial proceedings was the nearest equivalent, without deciding whether recognition as a suspect could itself amount to a charge. The precise meaning of those concepts was left for a case with fuller argument and evidence.

4. Applying the threshold stage, the appellant had not shown reasonable grounds for believing that his absence was not the sole reason why he had not been charged or tried. In particular, he had not shown that questioning or other necessary preliminary steps could be undertaken through mutual legal assistance without his presence in Lithuania.

5. The material supplied by Lithuania went beyond a mere suspicion of guilt. It provided sufficient evidence to support prosecution, and the absence of a handwriting sample did not make prosecution essential or impossible. The section 12A threshold was therefore not met, so the requesting authority’s further criminal-standard burden was not engaged.

• High Court (Administrative Court): appeal against District Judge Blake’s extradition order dismissed.