Queen’s Bench Divisional Court

Published June 26, 2007

Regina (Governor of Wandsworth Prison) v Kinderis and Others

Before Lord Justice Laws and Mr Justice Beatson

Judgment May 3, 2007

Where a prisoner was remanded in custody charged with offences in England and consented to extradition under a European arrest warrant, the prison governor should keep him in custody pending extradition and any duty to deliver him to the domestic crown court was postponed.

The Queen’s Bench Divisional Court so held when making declarations that the Governor of Wandsworth Prison had to keep his prisoner, the first defendant, Antanas Kinderis, in custody pending his extradition to Lithuania and any duty to deliver him for trial at Cambridge Crown Court was accordingly postponed.

Two European arrest warrants were issued for the first defendant, a Lithuanian national, detailing charges in Lithuania.

He was later arrested in the United Kingdom on suspicion of unrelated offences in the UK. He was remanded in custody by magistrates for trial at Cambridge Crown Court.

He was then arrested on the European arrest warrants and at a hearing before a district judge he gave his consent to be extradited to Lithuania.

The district judge adjourned the hearing and issued an order to the Governor of Wandsworth Prison to detain him there.

The Lithuanian authorities would not consent to his extradition being delayed and the district judge ordered that he be extradited pursuant to section 46 of the Extradition Act 2003 and detained at Wandsworth Prison meantime.

The judge at Cambridge Crown Court subsequently ordered that he be remanded in prison to be delivered to that court for trial in due course.

On the face of it, the governor was obliged to comply with two mutually inconsistent orders and desired to know what to do.

Mr Nigel Giffin, QC, for the governor and the Secretary of State for the Home Department, as an interested party; Mr Ben Lloyd for Kinderis; Mr Mark Weekes for the Republic of Lithuania; Mr Alex Chalk for the Crown Prosecution Service, Cambridgeshire.

LORD JUSTICE LAWS said that counsel’s argument that section 47(4) of the 2003 Act should be read so that where reasonable cause was shown for the delay, the duty to extradite before the end of the require period imposed by section 47(2) was extinguished, could not be sustained. Section 47(2) plainly imposed an obligation to extradite before the end of the required period. The premise of section 47(4) was that that obligation had not been complied with.

Subsection 4 was concerned only to provide for the consequences of non-compliance. It could not be read as in some way alleviating or extinguishing the section 47(2) obligation.

Its effect was that, where the obligation was not complied with and the defendant applied to be discharged, the judge had to discharge him unless reasonable cause was shown for the delay.

Thus the subsection was simply concerned to impose a sanction for noncompliance with the section 47(2) obligation subject to the proviso contained in the “unless” clause.

That proviso would apply to a force majeure case and there might be reasonable cause for the delay where it was occasioned on humanitarian grounds. However, that could not be said of postponement for the purposes of prosecution for an offence in the requested state.

Mr Justice Beatson gave a judgment concurring in the result.

Solicitors: Treasury Solicitor; Lawrence & Co; Crown Prosecution Service, Ludgate Hill; Crown Prosecution Service, Huntingdon.

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