Mindaugas Černiauskas v Vilnius Regional Court, Lithuania

1. The appellant’s extradition is sought in respect of a conviction warrant and an accusation warrant under Part 1 of the Extradition Act 2003 . He faces extradition in any event in respect of the accusation warrant.

2. The present appeal is about the conviction warrant, which is said to concern 10 offences. The final combined sentence is 1 year 9 months’ imprisonment. The offences were committed between 2010 and 2016. They generated eight court decisions. One was an appeal and six were conviction/sentencing hearings. The sentence of imprisonment was originally suspended but, following an application by the probation service, the final court decision was to activate that sentence, of which some 1 year and 7 months remains outstanding.

3. Following a hearing at Westminster Magistrates’ Court, District Judge Snow ordered extradition in resect of both warrants. Permission to appeal the decision concerning the conviction warrant was granted by Dexter Dias J in respect of a single ground of challenge, relating to section 2 of the 2003 Act .

4. By virtue of section 2 , every arrest warrant must contain certain information. Under section 2(6) a "conviction" warrant must provide: " (a) particulars of the person's identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."

5. In Edutanu v Iasi Court of Law [2016] EWHC 124 (Admin) , the Divisional Court explained the approach to the requirement in section 2(6) (b) for conviction warrants to contain particulars of conviction in situations where the sentence for an extradition offence was “merged'" with sentences for other offences. In short, it concluded that where the total sentence to be served was in respect of offences which had not been particularised, then the warrant would not be valid.

6. Box B of the conviction warrant describes the decisions on which the conviction warrant was based. Given the number of offences, Box B is very long and was divided into a number of sub-paragraphs, described by the district judge as B1, B2 etc.

7. The section 2 submission made to the District Judge was somewhat different from that now advanced.

8. The position is as follows. On 6 October 2011, the appellant was ordered to pay a fine of 8 MLS (minimum living standards), in respect of his first two offences. This fine was never paid; but, until the final court decision, it was, in effect, carried through the intervening court decisions, which also included sentences of imprisonment, eventually becoming, on 20 October 2016, the sentence of 1 year and 9 months, suspended with community conditions (with which the appellant did not comply).

9. At paragraph 26 of his judgment, the District Judge noted the appellant’s submission that the penal order of 6 October 2011 (B1) referred to subsequent decisions which had not been detailed. As a result, the overall sentence contained, according to the appellant, offences that had not been particularised, contrary to Edutanu . Similar submissions were made about the ruling of 13 June 2016 (B4), where it was submitted that “ the combined penalty of arrest of 50 (fifty) days” could refer in part to offending that was not particularised in the warrant.

10. At paragraph 34, the District Judge correctly reminded himself that it was for the judicial authority to prove to the criminal standard that section 2 was satisfied. At paragraph 38, he concluded that B1 was the original judgment and that, combined with B4, became the “base judgment...upon which the subsequent judgments build resulting in the total sentence of 1 year and 9 months imprisonment”. At paragraph 39, he said that where other judgments had been given, these had been referenced, “even though they do not affect the overall sentence.”

11. At paragraph 42, the District Judge addressed the court ruling of 3 February 2015. This “exempted [the appellant] from the penalty of community service imposed by the District Court of Ignalina Region of 03 November 2014”. The District Judge said “That sentence does not have to be served and does not add to the sentence. I am sure that [the appellant’s] extradition is not sought to serve this sentence.”

12. That finding of the District Judge is, with respect, entirely correct. There is no question of the appellant having to undertake community service, if he is extradited. It is therefore immaterial whether the offence that resulted in that penalty is unparticularized. It has no bearing on the sentence of 1 year 9 months’ imprisonment. I shall return to the issue of community service in due course.

13. As for the submission concerning B4, which related to specified offences of stealing raspberry wine and taking a barrow, at paragraph 43 the District Judge found there was no evidential basis for the suggestion that the words “combined penalty” included offences over and above the ones specified in the warrant.

14. Again, having scrutinized the warrant, I can see no reason to depart from the conclusion of the District Judge.

15. At the hearing before me, Ms Collins accepted that the court decisions of 9 February 2012 and 4 December 2012, which had featured in her appeal skeleton argument, were not ones that fed into the combined penalty of 1 year and 9 months.

16. As a result, the appellant’s case at the hearing turned on B2. This states that the District Court of Ignalina Region on 23 March 2016 found the appellant guilty of an offence defined in Article 284(1) of the Criminal Code and imposed a penalty of arrest for 30 days. B2 then says “the imposed penalty was combined by adding the penalty to the not served penalty imposed by the sentence of the District Court of Ignalina Region of 03 November 2014 – the fine of 8 MSLs, and the final combined penalty of 30 (thirty) days of arrest and the fine of 8 MSLs was imposed.”

17. Ms Collins submitted that there was at least ambiguity in the words “the not served penalty”. It was possible that some unspecified penalty or unparticularized offence lay behind those words, which fed into the overall sentence in respect of which extradition was sought. If the offence concerned was the “fraud, including swindling” that the ACRO records describe as the offence of which the appellant was convicted on 3 November 2014, then there were no particulars, such as to satisfy section 2(6) .

18. I am entirely satisfied that this is not an interpretation of the words in B2 which raises a reasonable doubt as to their meaning. I agree with Ms Hinton that “the not served penalty” is the fine of 8 MSLs. The offence of which the appellant was found guilty on 23 March 2016 was assault and disturbing the public order, properly particularised in Box E. The ACRO record shows that the relevant sanction of 3 November 2014 was the community service (described as community work), from which the appellant was “exempted” on 3 February 2015.

19. The appeal is dismissed.