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In the case of Fedorowicz v Prosecutor General of Lithuania  EWHC 3088 (Admin), the prosecution had sought to argue that the Appellant was liable for prosecution in Lithuania for allegedly being involved in a criminal conspiracy to import 64 kg of cannabis from Spain to Germany via France. All of his allegedly criminal actions had taken place in Poland. Lithuania had requested his extradition from the U.K. However, in order to satisfy s.64 of the Extradition Act 2003 the Court had to be satisfied of dual-criminality, in other words, that the conduct of the Appellant would have also constituted an offence in the U.K.
The only conduct in Lithuania (as a proxy for the U.K. for the purposes of the transposition exercise), as set out in the Extradition Warrant, was a conversation between the co-conspirators in a Vilnius, Lithuania. Crucially, however, this conversation did not involve the Appellant. Nonetheless, at first instance, before a District Judge the prosecution argued that s.45 of the Serious Crime Act 2015 (participating in organised crime) covered this as it was part of the overall criminal activity of the group of which the Appellant was a member. They relied upon s.47(7)(b) which stated that it was not necessary ‘for all of the acts or omissions comprising participation in the group’s criminal activities to take place in England and Wales (so long as at least one of them does)’ The District Judge at first instance at Westminster Magistrates’ Court agreed with this argument although it was opposed by the defence team.
On appeal before Fordham J, George argued that this was not the proper construction of a.45 and that the proper construction of the section involved the Appellant having to have committed at least one act himself in the U.K. (i.e. Lithuania for transposition purposes). The prosecution in turn strongly opposed this interpretation on appeal and urged the court to uphold the District Judge’s decision which had potentially very wide-ranging implications for U.K. law enforcement charging practices in the sphere of international organised crime.
Fordham J delivered judgment on the appeal which was published on 13 December 2022 and can be found here. The judgment overturned the District Judge’s decision and found that George Hepburne Scott’s interpretation was the correct one. The judgement creates the first determination of the territorial scope of s.45 by a senior U.K. Court, which itself enacts the relevant article of the UN Palermo Convention Against Transnational Organised Crime (2000) (as ratified by the U.K. in 2006).
George Hepburne Scott was instructed in the case by Giovanna Fiorentino of Lansbury Worthington Solicitors
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