The High Court has refused a request for oral evidence in a case concerning Lithuania’s bid to have Brendan McGuigan surrendered for prosecution, ruling that one part of the application was premature and the other misconceived.
Mr Justice Edwards delivered the judgment on 9 December 2011. The motion arose in proceedings under the European Arrest Warrant Act 2003. McGuigan opposed surrender and argued that it would expose him to breaches of his constitutional and human rights, including through alleged detention conditions and defects in Lithuania’s criminal justice system. Those claims remain for the later surrender hearing; the court was deciding only the evidence motion.
McGuigan sought permission for two of his expert deponents, Lithuanian lawyer Ingrida Botyriena and Professor Rod Morgan, to give oral evidence. He also asked the court to require the applicant to call oral evidence about material used to challenge those experts’ accounts. The applicant opposed both requests.
The court said the Act generally provides for evidence by affidavit or other written statement. Oral evidence may be directed where the interests of justice require it, such as where a serious factual conflict remains unresolved and the court needs to assess a witness’s credibility. The judge said McGuigan had not identified a feature of the experts’ evidence that would make oral testimony more useful than their written affidavits. The court also considered the request premature because the full hearing had not begun and no point had yet been reached where an evidential conflict could be shown to require oral testimony.
On the request to compel evidence from the applicant, the court held it had no power to require the applicant to call oral evidence or submit evidence on oath. It said information from the issuing state is initially presumed correct under the mutual trust underpinning the European arrest warrant system, but that presumption can be rebutted by cogent evidence. The court said a respondent may argue that material deserves little weight, including because its authors cannot be cross-examined; deciding what weight to give it remains for the court.
The judgment did not decide whether McGuigan should be surrendered or determine the underlying human rights objections. It records that the full hearing under section 16 was due in early 2012. The motion was dismissed.