England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 November 2010

1. MR JUSTICE McCOMBE: This is an appeal by Mr Andzej Antonovic (whom I will call "the appellant") against an order of District Judge Purdy made on 13 July of this year ordering the appellant's extradition to Lithuania. The appellant is a Lithuanian national whose return is requested by a European arrest warrant issued on 4 December 2008. The request is made in respect of three alleged offences: the theft of a mobile telephone on 25 August 2006, damage to a motor vehicle and/or attempted theft of that vehicle on 25 April 2007, and a further offence of criminal damage to that vehicle on the same date as part of the same incident.
2. The warrant was certified for the purposes of the Act on 4 December 2009. The appellant was arrested on 30 December and brought before the City of Westminster Magistrates' for an initial hearing. On 7 January of this year the extradition hearing was opened and adjourned pending a full hearing, which took place on 11 June of this year. The appellant gave oral evidence at the hearing before the District Judge, who handed down a written judgment on 7 July.
3. At the hearing and on the current appeal the appellant raised two arguments which he submitted, and now submits, would render his extradition to Lithuania incompatible with his rights under the European Convention on Human Rights. Those arguments are based upon Article 3 and Article 8 of the Convention respectively. First, as to Article 3, it is argued that the learned judge was wrong to find that the appellant would not be subject to mistreatment in breach of that article on his return. Secondly, under Article 8 it is submitted that the judge erred in his assessment of the interference with his family and private life by his return to Lithuania, and that his return would be disproportionate to the gravity of the offences with which he is charged. In respect of each of the arguments so raised the disproportionality argument is raised.
4. I will address the claims under Article 3 and Article 8 in turn, and assess the arguments raised as to the disproportionality of extradition in the light of those claims hereafter. It is not necessary to set out the text of either article of the Convention verbatim, each is well-known.
5. I turn to Article 3. It is accepted between the parties that the burden of establishing an Article 3 bar lies on the balance of probabilities on the person whose extradition is requested (see R v (on the application of Razgar) v the Secretary of State for the Home Department [2003] EWCA (Civ) 840. The article will be broken where it is shown that there is a real risk of relevant ill-treatment by state officials, or in the case of risk of ill-treatment by private persons it is shown that the requesting state cannot, or will not, take the necessary steps to prevent such ill-treatment.
6. The appellant's case under Article 3 is summarised in paragraphs 6 and 7 of the helpful argument in writing submitted by Mr Hawkes in support of this appeal. It is said:

"[The appellant] submitted documentary medical evidence to support his claim of having been seriously assaulted and stabbed by gang members. It is noted that in his judgment, the District Judge accepted that the Appellant was the victim of violence at the hands of gang members.

The Appellant therefore resists the extradition request on the grounds that his life is in danger from non-state actors (criminal gangs). He insists that members of a criminal gang have seriously assaulted him in the past on three separate occasions, two of which resulted in in-patient hospital treatment. The Appellant was coerced into agreeing to give evidence against these men in court by the police, who told him that if he did not, he would be placed in the same prison cell as them. Members of the gang were convicted of murder and other serious offences in 2004.

Post-2004, the Appellant was assaulted and threatened by the gang on two further occasions, demanding money and warning him against giving evidence in court. The Appellant was under so much pressure he attempted suicide by slashing his wrists. On the second occasion, following a sustained assault which caused injury, the Appellant was so afraid for his safety, rather than tell hospital staff what had actually happened, he told them that he had fallen out of a window."

7. The appellant also relied before the District Judge, and has again before this court, on reports by the European Committee for the Prevention of Torture, following visits made by that Committee in 2000, 2004 and 2008, reporting upon mistreatment of persons in detention in Lithuania and making recommendations to the Lithuanian authorities. A response to the latest report was made by the Lithuanian Government, which is summarised in the skeleton argument for the judicial authority by Miss Wilkes that was before the learned District Judge. It is fair to say that that response appears to show that the Lithuanian authority are taking seriously the faults that were found with the administration of the prison system there.
8. The District Judge's finding on this point was as follows:

"I find [the appellant] was involved in some violence at hands of criminal gang members. Having seen and heard him I also find he was willingly, through joint voluntary drug abuse, involved with gang members. Such people fall out with alarming frequency and violence is often the currency or language that follows. None of that, on the facts herein, persuades me [the appellant] is in 2010 at real risk of ill-treatment in/out custody if returned. The Lithuanian authorities indicate a willingness to consider protective measures once returned. I must take that to be an honest and clear indication of two things. Firstly an undertaking to assess the actual current circumstances and any apparent risks from the vantage point of being on the ground in Lithuania. Secondly an undertaking - and ability - to provide reasonable levels of protection if adjudged necessary. To my mind that must lead to a rejection of any article 3 challenge to this request."

9. The learned judge also referred to the attitude that the courts in this country have taken vis a vis allegations of potential Article 3 breaches by Council of Europe states and parties to conventions such as this, and Lithuania in particular. He referred to the decision of the Divisional Court in Baranauskas v Ministry of Justice of the Republic of Lithuania [2009] EWHC 1859 (Admin): A judgment delivered by Silber J with which Leveson LJ agreed. In that case the person, whose extradition was being requested, was seeking an adjournment to obtain evidence in support of an Article 3 case. Silber J said this:

"Council of Europe countries should be assumed to act fairly. Lord Brown, giving the judgment of the Judicial Committee of the Privy Council in Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 explained at paragraph 35:

'Council of Europe countries in our view present no problem. All are subject to Article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial ­ whether by an abuse of process jurisdiction like ours or in some other way.'

We consider that, by analogy, those countries that are signatories to the Convention would be assumed to be capable of protecting the rights of people in their country. Lithuania is of course a signatory to the European Convention on Human Rights."

10. Reference can also be made in the same context to the decision of Mitting J in Rot v District Court of Lublin Poland [2010] EWHC 1820 (Admin) at paragraphs 11 and 12:

"11. Considerations which apply in a removal case apply with equal or greater force in an extradition case. There is a compelling public interest for category 1 Convention states in seeing their own criminal law upheld in relation to those who may have infringed it. The European Arrest Warrant system is intended to provide an effective means of seeing that that important public interest is upheld without undue delay. Category 1 states can be taken to have accepted between themselves that conditions of detention, and the adequacy of fairness of criminal justice systems in such states, will not be required to be examined by other States when considering extradition applications by them. For those reasons and in my opinion for the purposes of Articles 2, 3 and, if relevant, 8, the treatment of a person extradited to a category 1 State which is a signatory of the Convention is a matter between the individual extradited and that State and not between the individual and the United Kingdom.

12. I would hold that, save in circumstances in which the constitutional order of a Convention State was overthrown, by for example military coup or violent revolution, a District Judge considering the risk to an extradited person in the hands of such a State is not required to undertake an examination of conditions in its prison estate or of the management of psychiatric illness in that State. I find it difficult to conceive that evidence about such matters would be relevant and so admissible in extradition proceedings for the purpose of determining whether an individual should be discharged under section 21."

11. On the present appeal Mr Hawkes launched a frontal attack on decisions such as those, saying that frankly the courts have been wrong in the past to pay such devoted trust to the machinery available in signatory states to provide suitable protection in cases such as that of the present appellant.
12. In my judgment it is not possible for a judge sitting in this seat, in this court, to reject authorities such as those. Apart from the two that I have cited there are others and it would be impossible for a judge at first instance, in my opinion, to go against that line of authority.
13. In my judgment the learned District Judge was of course similarly bound, but quite apart from the general points made, the appellant's own account shows that he did not report the first attack that was made on him in 2000. He did report the second attack, and there is nothing to suggest any want of proper action by the authorities in failing to prevent further attacks in the later years. In spite of alleged mistreatment by the police he made no complaint and returned to Lithuania for two years thereafter.
14. In my judgment the report of the European Committee of the Prevention of Torture of course must be given credence, but, as Miss Wilkes submits, the Lithuanian authorities clearly are taking responsibly a course of protection for prisoners in circumstances that are outlined in that report. The Lithuanian authorities have undertaken in this case to give serious consideration to proper protection for this appellant if he is returned. That is a matter to which this court is required by authority to give respect, and I do so.
15. In the circumstances I am not satisfied that as far as Article 3 is concerned the balance of considerations weighs in the appellant's favour sufficient to decline extradition in his case.
16. I turn to the Article 8 submissions. As appears from Norris v United States [2010] the UKSC at 9, Article 8 necessarily entails a balancing exercise between the personal circumstances of the requested person and the strong public interest in maintaining and honouring extradition requests. As to the assumption that the extradition has to be respected, I would mention the judgment of Lord Phillips in Norris at paragraph 53.
17. Mr Hawkes has urged upon the court that the offending in this case is, relatively speaking, minor. It involves the theft of a mobile phone and damage to a vehicle on two separate occasions. He submits that the breaking up of a young family, in this case the appellant with a young wife and recently born child, cannot easily, he submits, relocate to a Baltic country be it either Lithuania (the appellant's country) or Latvia (his wife's country) in these circumstances. He submits that it was out of balance to require his extradition for these purposes. One can refer in this context to the passage in Lord Phillips' judgment in Norris where Lord Phillips said this:

"If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act."

18. Against this one has to bear in mind decisions in cases since Norris which indicate that the courts continue to take a relatively severe approach to arguments under Article 8 in cases such as this. One can cite the case of A v Croatia [2010] EWHC 918 (Admin) and C v The Circuit Court in Poznan Poland [2010] EWHC 2262 (Admin). In the first case the possibility of the requested person's eight-year-old son being taken into care, where his mother suffered from mental health problems and was likely to be deemed incapable of caring for him without the support of the father, was found not sufficient to meet the high standard for a bar to arise under Article 8. Again in the C case there was separation by extradition of the child from his mother, who was a sole carer, [which] was insufficient to meet the Article 8 threshold.
19. In the course of argument I have been referred to a similar case no doubt, again as Mr Hawkes says a decision on its facts, in Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin), a decision that pre-dates Norris, but which, as I think Miss Wilkes correctly submitted, reflected the test that was later to be propounded in Norris. On the facts, of course, and just another example and not determinative of a case of this sort, but illustrative, in my judgment, of the type of balancing exercise that the courts have made in cases of this type.
20. While not at the top end of criminality, these offences were not merely trivial, particularly when looked at as a series, but two of the alleged offences occurred during the same incident. They were two offences and there had been an earlier offence of a similar character. While the appellant has had a family life in the United Kingdom it is not of long-standing, and there is nothing in my judgment to show that it may not be fulfilled in some other country following his being dealt with in an appropriate way on return to Lithuania.
21. In my judgment it is impossible to say that the judge was wrong in finding that the extradition was proportionate even having regard to the appellant's rights under Article 8. The extradition as a whole, in my judgment, is not disproportionate and the appellant has failed to demonstrate a sufficient degree of risk of ill-treatment within the meaning of Article 3 to be a bar to his extradition. In the circumstances I agree that the learned judge below got the balance right and the appeal must be dismissed.
22. MR JUSTICE McCOMBE: Mr Hawkes?
23. MR HAWKES: I am grateful. May I ask for a legal aid assessment?
24. MR JUSTICE McCOMBE: Yes, you can have legal aid assessment.