CO/11177/2012
Neutral Citation Number: [2013] EWHC 304 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 22 January 2013
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 

NESUKAITIS 
Appellant

v 

REPUBLIC OF LITHUANIA 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr David Williams (instructed by TV Edwards) appeared on behalf of the Appellant
Mr Nicholas Hearn (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE COLLINS:  This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Purdy given on 16 October 2012, whereby he ordered the appellant's return to Lithuania to face a prosecution for two offences, both of which arose out of the same incident, essentially a robbery on a train in November 2002.  There was also an offence of violent behaviour.  That was part and parcel of the events that culminated in the robbery.  
2.	The offences therefore, albeit perhaps not the most serious sort of robbery, nonetheless are serious enough because they involve a robbery.  
3.	Two grounds for saying that extradition should not take place were raised both in the lower court and on appeal.  They are essentially that the conditions, particularly on remand, whether in a remand prison or, as might well be necessary for perhaps a relatively short period, in police detention, are such as to breach Article 3 of the ECHR because they are thoroughly degrading.  There is gross overcrowding in the prisons and lack of proper accommodation.  It does not amount to the sufficient six square metres that the European court has decided is necessary to cater for any single individual.  In addition, quite apart from that, there are problems because of the overcrowding in that particularly vulnerable prisoners can be set upon by gangs of other prisoners, and there is an inability of the authorities to exercise adequate protection and control.  
4.	In addition, it is said that this particular appellant has mental problems: in particular, it is said that as a result of those he is a suicide risk, and it is said that the risk is sufficiently severe that by itself it ought to bar extradition, but when taken in conjunction with the conditions of custody in Lithuania, the risk of suicide is exacerbated and that is a bar to extradition.  
5.	The appellant at the hearing before the District Judge had the advantage of a report from Professor Rod Morgan, who has direct knowledge of the conditions in Lithuania.  His knowledge results from being one of the delegates on an inspection carried out by the Committee for the Prevention of Torture in 2000, and in addition he was instructed on behalf of an appellant in a case from Northern Ireland, and he visited the remand prison in question, which is the main remand prison for Vilnius, and as a result of what he observed there, he formed the view that the conditions were, as I say, degrading and there would be a breach of Article 3.  
6.	He gave a lengthy report for the purposes of this case in which he repeated those concerns.  His conclusions were as follows: 
"General prison conditions for remand prisoners repeatedly inspected by the CPT and seen again by myself in 2010 are grossly overcrowded despite a refurbishment programme and reductions in some establishments of overall prisoner numbers, which is to say that many remand prisoners are being held in cells providing approximately 2 square metres of cell space per person, well below the standard deemed acceptable by the CPT.  They are required to meet the needs of nature without privacy in their cells and they are confined to their cells for 23 hours a day.  No prisoner programmes or work is provided, and they are required to exercise in small cages not large enough for them to exert themselves physically.  The conditions remain inhuman and degrading according to the standards of the CPT and as endorsed by the European Court of Human Rights.  According to the 2009 Lithuanian Ombudsman's report, Siauliai prison [the prison where it is suggested that this appellant would be likely to be held if extradited] was in 2008‑2009 the most overcrowded of three principal remand establishments in Lithuania.  I conclude, therefore, that were the appellant extradited and held in general remand prisoner accommodation, there would be a high risk of his being held in inhuman and degrading conditions in breach of Article 3."  
7.	He went on to say that any police detention would be no better, if anything worse, because there would be a similar likelihood of inhuman and degrading treatment.  Those conclusions were put to the Lithuanian authorities, who responded in a letter from the Vice‑Minister of Justice.  That was dated May 2012.  In fact, it was produced as a result of Professor Morgan's report in the Northern Ireland case, but it was put before the District Judge in this case as a response to Professor Morgan's report.  This indicated that the Government was concerned to improve the conditions.  They were well aware of the problems, particularly the problems of overcrowding.  It is said that at the relevant remand prison which was considered for the purposes of Northern Ireland case, namely Lukiskes, the average number of prisoners had been reduced and, as indeed Professor Morgan himself had accepted, work had been and was being carried out to ameliorate the conditions.  There had been a number of improvements, and it was intended there would be further improvements.  
8.	It is true that the response concentrated on Lukiskes remand prison because that was material to the Northern Ireland case.  Nonetheless, it is clear that the Lithuanian authorities are, as I say, well aware of the problems.  There are budgetary constraints and there undoubtedly are problems of overcrowding in prisons, because one of the effects of budgetary constraints is that prison space is not easily extended because that of course costs considerable sums of money.  Nonetheless, it is said that the conditions now are better than they were even in 2010 and, in the circumstances, the argument is that bad though they are in the sense that they are undoubtedly most unsatisfactory, they did not reach a level which breaches, or runs a real risk of breaching, Article 3 of the European Convention on Human Rights.  
9.	The report of Professor Morgan was relied on in the Northern Ireland case and was relied on before the Divisional Court in what I think is the most recent of a number of cases in which the conditions in Lithuanian prisons have been relied on as a bar to extradition.  The case in question is Janovic v the Prosecutor General's Office, Lithuania [2011] EWHC 710 (Admin), the Divisional Court there consisting of Jackson LJ and Cranston J.  The only reasoned judgment was given by Jackson LJ, so it amounts to the judgment of the court.  The relevant finding for the purposes of this case is to be found in paragraph 35 of the judgment, where this is said: 
"In my view, the judge was correct that the appellant would not be at risk of suffering mistreatment sufficient to engage Article 3 of the Convention.  As I have explained the test to be applied to submissions pursuant to Article 3 of the Convention is high.  There is no doubt that Professor Morgan's reports are deeply troubling.  His expertise is unrivalled and his standing world class. Professor Morgan states that, in his view, the conditions at Lukiskes prison could be described as "inhuman and degrading".  However, the conditions he describes do not compare with the conditions as found by the European Court to have existed in the case of Kalashnikov.   In his evidence Professor Morgan accepted that he was not applying or using the words "inhuman and degrading" in the legal sense of the terms.  So his assertion that the prison conditions were inhuman and degrading did not mean that the appellant's extradition to Lithuania would inevitably involve a breach of his Article 3 rights.  There is no evidence about how long the appellant will be on remand and detained in the conditions Professor Morgan describes at Lukiskes remand prison.  It is simply assumed that bail will not be available.  The Lithuanian authorities have confirmed in their 22 June 2010 letter that they are aware of their obligations pursuant to the Convention.  Given the assumptions we are obliged to make I cannot see that we can find that the Lithuanian authorities will not take steps to ensure that the appellant's Convention rights are protected, both on remand or after conviction, should that follow.  Based on the extensive jurisprudence on Article 3 and evidence before the court about prison conditions in Lithuania, my view is that the judge was correct that the appellant would not be at risk of suffering mistreatment sufficient to engage the article."  
10.	In his present report Professor Morgan does at least purport to indicate that in his view the conditions that he has seen in his visits did contravene Article 3.  However, of course that is not strictly a matter for him.  All he can do is to describe the conditions as he sees them, and he considers them to be, as he said, degrading and inhuman.  So, with respect to Jackson LJ, the fact that he does not purport to adopt the legal test does not seem to me to be determinative.  What is determinative is the view that the court took and should take as to the situation described against the level that is required to establish a breach of Article 3.  
11.	Mr Hearn has further submitted that Professor Morgan's report is based upon his observations in 2010 and, as the letter from the Deputy Minister in Lithuania indicates, improvements have been made since.  In his supplementary report, he does not dispute that a programme of refurbishment has been undertaken and there is a plan for a new prison, but he takes the view that the conditions are essentially at the moment unaltered, and accordingly his view that they do breach Article 3 remains.
12.	Of course, if he is right and that has to be followed and the court has to decide that the prison conditions particularly on remand (because that is what is being essentially considered) are such as to breach Article 3, then no wanted criminal could be returned to Lithuania.  That is a strange situation when one considers that Lithuania is a signatory to the European Convention on Human Rights, and the assumption, and that is what was referred to in Jackson LJ's observations which I have cited, that there will be compliance unless there is clear proof that there will not be, is something the court is entitled to take into account.
13.	We have here the added factor of the appellant's mental condition.  A report was produced from a psychiatrist, and the conclusion reached by the psychiatrist, was that he constituted a real suicide risk because of his mental condition.  It is not entirely clear whether it is said that he is a suicide risk because he fears extradition or whether he is generally a suicide risk.  If the risk is only material because of the extradition, the court is most reluctant, for obvious reasons, to accept that that is a good reason for refusing extradition.  After all, proper care can be taken, and in any category 1 territory the assumption must be that proper care will be available.  Indeed, if one looks at the conclusion of Professor Morgan's report, he says this: 
"It is the opinion of the CPT's medical experts that medical facilities and services have somewhat improved during the last decade, but remain in several respects deficient.  The medical services appear to be operating in a broadly satisfactory manner in difficult material circumstances.  I conclude however that the Lithuanian medical authorities would likely recognise the mental health and personal self‑injury risk that the appellant purportedly presents and suitably deal with the fact that he has hepatitis C with all its attendant problems.  It seems reasonable to conclude that he would likely be appropriately and adequately treated by the medical services for these conditions." 
14.	It is right to make the point that there has been no explicit criticism of the medical facilities that are available for those who are in custody in Lithuania.  
15.	Mr Williams submits that the mental condition and the possibility of personal self‑injury or suicide makes it the more compelling that he should not be returned because it will add to the substance of the risk that there will be a breach not only of Article 3 in these circumstances, but of Article 2, the right to life.  However, if one follows the report of Professor Morgan, the mental condition, provided of course all relevant medical reports and notes are brought to the attention of the Lithuanian authorities, is likely to mean that the risk of breach of human rights is less.  Indeed, that was the point that the District Judge himself made, where he said at the end of his judgment: 
"This ignores a very distinct likelihood of the appellant being on the hospital wing in any event, about which I have no current information from any CPT report or at all."  
16.	The District Judge commenting on Professor Morgan's evidence indicated that it was indeed impressive.  He had high knowledge and experience of Lithuanian prisons.  The judge noted his repeated and forceful concern of overcrowding despite structural improvements, and he concluded that the conditions were indeed poor, probably very poor, mostly due to acute overcrowding and borderline Article 3 ECHR breach.  But, of course, the fact that it reaches the borderline does not mean that it crosses that borderline, and that was the approach that the judge took.  It is an approach which, in my judgment, is the correct approach following the decision of the Divisional Court in Janovic.  
17.	It seems to me that while there can be no doubt that the conditions in prison, particularly on remand, in Lithuania are far from satisfactory, nonetheless the fact that they are unsatisfactory does not mean that they contravene, or even run a real risk of contravening, Article 3 or indeed Article 2 of the European Convention on Human Rights.  Those who wish to escape the criminal process in Lithuania cannot rely upon the conditions of prisons, taken in isolation, as a proper basis for saying that this country must keep those who are, as I say, escaping proper justice in the country of their nationality.  
18.	So far as the suicide risk is concerned, if that is taken on its own, the authorities in this court are clear that it requires a very high risk indeed.  Indeed, the only case in which suicide risk has been regarded as a bar is the case of Jansons v Latvia [2009] EWHC 1845 (Admin), decided by Sir Anthony May (then President of the QBD) and Dobbs J.  The difficulty that I frankly have with that case is that it found as a fact that suicide would take place were the appellant to be extradited.  I find it difficult to see how the court could properly have come to that positive conclusion.  No doubt, it could have said, and it may be that it is sufficient to indicate that if it had said, that the risk was so high that it must have came very close to a finding that it would occur so that that justified the bar on extradition in that case.  But I have no doubt that the level of risk must be very high indeed, and I have no doubt that the circumstances of this case, looked at independently of the problems of prison conditions in Lithuania, would not justify a refusal to extradite.  
19.	In all those circumstances, I am entirely satisfied that Mr Williams is absolutely right to say that the evidence that was produced in this case could not be bettered in the sense that it is the high watermark of what one could expect as being put before a court to justify a refusal to return.  It does not, even though it is of that high level, in my judgment justify a conclusion that there should be no return in the circumstances of this case.  
20.	I would only add that it is essential that the authorities responsible for his return are informed and receive details of his medical condition in the form of whatever notes there may be available of his conditions, and also the report that has been obtained from the psychiatrist.  Care must be taken to ensure that he is properly protected during the process of extradition and when he reaches Lithuania in due course.  Those who are responsible must have what I have said drawn to their attention before the extradition actually takes place.  
21.	Subject to that, this appeal is dismissed. 
22.	MR WILLIAMS:  My Lord, two things.  The first is, I think I may well be mistaken when I was taking my notes, but I think your Lordship said that the psychiatrist had not had the opportunity to see the appellant. 
23.	MR JUSTICE COLLINS:  I thought that was right. 
24.	MR WILLIAMS:  He interviewed him. 
25.	MR JUSTICE COLLINS:  In that case I will amend that when I see the transcript.  I am sorry, I do not know where I go that from. 
26.	MR WILLIAMS:  And the other is just an application for detailed assessment of legally aided costs. 
27.	MR JUSTICE COLLINS:  Of course.
28.	MR WILLIAMS:  Grateful.