Vaitkevicius v Prosecutor General's Office (Lithuania)

For dual criminality, the court examines the conduct described in the European arrest warrant and asks whether that conduct would constitute an offence in the United Kingdom. It does not compare the constituent elements of the foreign offence with those of a domestic offence.

An inference of dishonesty must be compelled by the facts. A genuine dispute about ownership or entitlement may prevent that inference. Misconduct in public office requires a serious departure from proper standards. Breach of an administrative restraint order, without more, does not ordinarily constitute criminal conduct.

The appellant challenged a District Judge’s order of 12 May 2017 requiring his extradition to Lithuania under an accusation European arrest warrant. The warrant concerned five alleged offences arising from his former work as a bailiff.

On appeal, the appellant pursued the challenge to offence 1. He did not pursue offences 3 and 4, and the judicial authority conceded that offences 2 and 5 could not be upheld. The principal issue was whether the conduct alleged in offence 1, concerning withdrawals from a bailiff’s deposit account, constituted an extradition offence under the Extradition Act 2003.

1. The appeal succeeded in relation to offence 1. Applying sections 10 and 64 of the Extradition Act 2003, the court was required to determine whether the conduct alleged in the warrant would constitute a criminal offence in the United Kingdom. The appellant was discharged in relation to offence 1.

2. Following Norris v United States of America [2008] 1 AC 920, dual criminality required examination of the conduct stated in the warrant, rather than correspondence between the Lithuanian and domestic offences.

3. Following Assange v Swedish Authority [2011] EWHC 2849 (Admin), an inference of mens rea could be drawn only where the facts compelled it. The descriptions of the account and withdrawals left open the possibility that some funds were the appellant’s bailiff expenses. His genuine dispute with the Lithuanian authorities meant that dishonesty could not be inferred to the criminal standard.

4. The alleged conduct also failed to meet the high threshold for misconduct in public office. The necessary threshold, identified in Attorney General’s Reference No 3 of 2003 [2005] QB 73 at paragraph 56, required a serious departure from proper standards.

5. The contempt argument also failed. Relying on Director of the Serious Fraud Office v O’Brien [2014] 2 WLR 902 at paragraph 43, the court held that breach of an administrative restraint order was not itself a criminal offence. More serious conduct would be required.

6. The appellant was formally discharged in respect of offences 2 and 5 following the judicial authority’s concessions. The position concerning offences 3 and 4 was not pursued on appeal.

• High Court (Administrative Court): On 12 October 2017, the court allowed the challenge in relation to offence 1 and discharged the appellant in respect of offences 1, 2 and 5.
• District Judge: On 12 May 2017, District Judge Inyundo ordered the appellant’s extradition under the accusation European arrest warrant.