QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| VITALIJ SOSIK
|- and -
|PROSECUTOR GENERAL, LITHUANIA
Miss Townshend (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 16 July 2014
Crown Copyright ©
Mrs Justice Cox :
"What you need to bear in mind is that the vast majority of people that stand where you are standing return to face trial or sentence. In this case it would be that you would stand trial. You have indicated that you will plead Not Guilty. It is for the Lithuanian Criminal Justice System to decide. When you are found guilty or not guilty you are welcome to return. I have to consider whether it would be disproportionate to your right to private and family life to order your return. It is a high threshold for you to overcome to succeed. There was a decision in Norris in 2010, which laid down the guidelines. That decision said that there would have to be striking or unusual facts for the challenge to succeed. There was a case in 2011 of B, the circumstances would be rare. Another case, G v Poland , involved the mother of two children being extradited because she was a primary carer. There have been hundreds of cases. The High Court has somewhat relaxed Norris and there have been … on the one hand, a serious offence, which could result in five year sentence of prison and on the same side of the scales the need to sympathetically see the requests from friendly countries. On the other side is your family. You have no previous convictions. The difficulty is that we hear this on a daily basis. They have settled here, it was four years ago and you want to put it behind you. But I am guided by the law as it is, but I cannot see [anything] striking or unusual in this case. I cannot see anything but mere hardship which is not enough to succeed in your challenge. I think you have been very honest and you have said that if it does happen then she will use your savings and go into debt. There is a choice for you to go back to Lithuania but you don't want to do that. My view is that it would not be disproportionate to order your return. Sympathetic though I am to a hard working man with a young family, I am afraid that I am forced to this decision. I order your extradition."
"33 ... The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Children's Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child.
34 One thing is clear. It is not enough to dismiss these cases in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope DPSC in Norris."
"The executing state cannot rely upon the issuing state to have considered the children's rights before issuing the warrant, or to protect those rights after the warrant is executed."
"7 Lord Mance cautioned against formulations such as a 'high threshold', 'striking and unusual facts' or 'exceptional circumstances'. They could be read as suggesting that the public interest in extradition is the same in every case, when it is not, and also that the extraditee has some sort of legal onus to overcome the threshold, when in fact the competing public and private interests have to be weighed against each other: para 108. Further, such formulations 'may tend to divert attention from consideration of the potential impact of extradition on the particular persons involved … towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill'. Some circumstances which might influence a court to find that the interference was unjustified could hardly be described as 'exceptional' or 'striking and unusual':
'Take a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby, or between one elderly spouse and another who was entirely dependent upon the care performed by the former': para 109.
He too favoured balancing the 'general public interest in extradition to face trial for a serious offence' against the 'exceptional seriousness of the consequences which would have to flow from the anticipated interference with private and family life in the particular case': para 114"
"124 The impact of ZH (Tanzania) and the valuable submissions made to this court founded on it in the context of the extradition process, is to highlight that Norris has been subject to a deal of misunderstanding. Norris did not decide that the article 8 rights of the family of the proposed extraditee can never 'prevail' unless an 'exceptionality' test is satisfied. What it suggested was that when article 8 rights were properly examined in the extradition context, the proportionality assessment would be overwhelmingly likely to be resolved in favour of extradition. This description of the likely results of the extradition process appears to have been adopted as a forensic shorthand for the test. Just because courts fully appreciate that children who are subjected to long term separation from their parent or parents will almost without exception suffer as a result, the application of a stark 'exceptionality' test may, even if unconsciously, diminish the weight to be given to the interests of the children. The prohibited thought processes run along readily identified lines: as separation from their parent or parents inevitably causes damage to virtually every child, what is 'exceptional' about the situation of the children involved in this particular case, and what would be exceptional about the extradition of their parent or parents? Accordingly the decision in ZH (Tanzania) provided a helpful opportunity for the application of Norris to be re-evaluated, and the principles identified in the judgments to be better understood. In the end, however, the issue remains proportionality in the particular circumstances in which the extradition decision has to be made when the interests of dependent children are simultaneously engaged."
And at paragraph 161 Lord Wilson said this:
"161 It is now clear that the law does not welcome, still less require, an examination of whether the circumstances disclosed by the inquiry under article 8 are exceptional. In the Norris case  2 AC 487, cited above, there are helpful observations by Lord Phillips PSC in para 56, by Lord Hope of Craighead DPSC in para 89 and by Lord Mance JSC in para 109, about the snare that, as in many other areas of the law, a test of exceptional circumstances sets: for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional."
"The legal provisions regarding contact with the outside world for remand prisoners have not changed since the CPT's last visit . Visits and access to telephone for such prisoners were still subjected to authorisation of the prosecutor or the criminal court dealing with the case. The delegation noted that the possibility for remand prisoners to receive visits and/or have access to telephone depended on the progression of their criminal case. All the prisoners interviewed by the delegation who had recently arrived in prison were not allowed to have contact with the outside world. This situation prevented them from talking to their relatives, sometimes for weeks. Furthermore, the delegation was informed that access to writing paper, envelopes and stamps was often difficult."