The High Court granted a stay on the surrender of Vytautas Poteliunas while his application to the Supreme Court for leave to appeal proceeded. The court found that the proposed appeal raised a fair question to be tried, but did not decide whether the Supreme Court would grant leave or determine the appeal.
The stay application followed a High Court surrender order made and perfected on 3 March 2017. The court had refused a certificate for leave to appeal to the Court of Appeal, finding that the statutory tests were not met. Poteliunas then applied directly to the Supreme Court for leave to appeal under Article 34 of the Constitution.
Justice Donnelly said an application for Supreme Court leave does not automatically suspend a surrender order. She applied established principles for deciding whether to grant a stay, including whether the proposed appeal was arguable and where the greater risk of injustice lay.
The judge found, with “a great deal of hesitancy”, that the appeal papers disclosed a fair question about whether the appeal met the general-importance and interests-of-justice thresholds. She noted this appeared to be the first direct appeal to the Supreme Court concerning a surrender order under section 16 of the European Arrest Warrant Act 2003. She did not make a further finding on the substantive appeal issue.
The court weighed the risk that surrender to Lithuania before the appeal was heard could leave the appeal moot or of little value against the public interest in surrendering people to face trial abroad and in operating the statutory process promptly. It also considered the delay in seeking a stay. The judge criticised the timing and handling of the applications, including an email sent to the Chief State Solicitor at 5pm on St Patrick’s Day, and said no reason had been given for failing to seek a stay earlier.
Despite those criticisms and the fact that surrender arrangements had begun, the judge said she would not penalise Poteliunas for what might have been an oversight by his solicitor or counsel, particularly because the procedure was new. She concluded that the balance of justice did not require refusal of a stay.
The judgment does not set out the stay’s duration or conditions. The court said it would hear the parties on the effect and terms of the stay. The Supreme Court leave application remained unresolved in this judgment.