Salvis Auzins (No. 2) v Prosecutor-General's Office of the Republic of Latvia

For the purposes of the Extradition Act 2003, the statutory definition of when there is no further possibility of an appeal against conviction is exhaustive in England and Wales. A charge resulting in a summary conviction is therefore disposed of when the conviction is entered, despite an outstanding appeal to the Crown Court or a case-stated appeal to the High Court. The statutory postponement of extradition applies differently to convictions following trial on indictment. That distinction is not absurd, given Parliament’s deliberate restructuring of the relationship between domestic criminal proceedings and extradition. Potential difficulties concerning the defendant’s absence from a subsequent appeal, including under Article 6 of the ECHR, should be addressed by the appellate court and do not alter the statutory construction.

The appellant was subject to an extradition order to Latvia for prosecution for four theft offences. His appeal against extradition had been dismissed by a Divisional Court in Auzins v Latvia (No. 1) [2016] EWHC 802 (Admin), and the order became final when certification for a Supreme Court appeal was refused.

Before extradition, the appellant was convicted in the Magistrates’ Court of going equipped for theft and appealed to the Crown Court. The issue was whether that outstanding appeal meant that the domestic charge had not been “disposed of” for the purposes of sections 36B and 214 of the Extradition Act 2003.

1. Application dismissed. The appellant’s charge was disposed of by his conviction in the Magistrates’ Court, notwithstanding his pending appeal to the Crown Court.
2. Section 214(1)(b) provides that a charge is disposed of, following conviction, when there is no further possibility of an appeal against conviction. Sections 214(2) to (4) prescribe exhaustively when that condition is satisfied in England and Wales and Northern Ireland. They refer to appeals to the Court of Appeal and, where applicable, the Supreme Court. They do not include an appeal from a Magistrates’ Court conviction to the Crown Court or a case-stated appeal to the High Court.
3. The same construction of “disposed of” must apply wherever that expression is used in the Extradition Act 2003, including sections 8A, 22, 36B, 76A, 97 and 118C. The Act introduced a detailed and precise scheme governing the timing of extradition and deliberately changed the earlier law, including by replacing some mandatory postponements with judicial discretion.
4. The appellant’s reliance on earlier legislation and Oskar v Government of the Commonwealth of Australia [1988] AC 366 did not overcome the language and structure of the 2003 Act. The distinction between convictions on indictment and summary convictions may produce an anomaly, and the treatment of Scotland is different, but neither consequence is absurd. Section 214(5) reflects a deliberate legislative choice concerning Scotland.
5. The proposed distinction based on the survival of a charge after summary conviction was rejected. Garfield v Maddocks [1974] QB 7 showed that there was no relevant difference between appeals from convictions on indictment and appeals from summary convictions concerning the power to amend the charge.
6. Arguments based on the appellant’s attendance at the Crown Court appeal and Article 6 of the ECHR were premature. The Crown Court could determine how the appeal should proceed, including whether evidence could be given remotely, in writing, or after an adjournment. Any unfairness in proceedings taken as a whole could be raised subsequently.

• High Court (Administrative Court): the present court determined whether the appellant’s pending Crown Court appeal postponed extradition and held that it did not.
• Divisional Court: the extradition appeal was dismissed on 14 April 2016 in Auzins v Latvia (No. 1) [2016] EWHC 802 (Admin).
• High Court: certification of a point of law for a Supreme Court appeal was refused on 7 June 2016. The extradition order consequently became final.