England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2014

Mrs Justice Cox :

1. This is an appeal pursuant to section 26(1) of the Extradition Act 2003 against the decision of District Judge Zani, on 14 April 2014, to order the Appellant's extradition to Lithuania, so that he may be tried for an offence of dangerous driving, alleged to have been committed by him on 4 April 2010. His extradition was ordered pursuant to an accusation European Arrest Warrant issued on 31 May 2013 and certified by SOCA on 25 June 2013.
2. The sole ground of appeal is that extradition would be a disproportionate interference with the rights of the Appellant and his young family under Article 8 of the European Convention on Human Rights. Article 8 was raised and fully argued below and there is an agreed note of the District Judge's ex tempore judgment included in the skeleton argument prepared by Ms Townshend, appearing for the Respondent. Ms Westcott, who represents the Appellant, does not pursue an Article 3 point as a distinct ground of appeal, in light of the decision of the Divisional Court in Aleksynas and Others v Lithuanian Authorities [2014] EWHC 437. The Court found in that case that, due to assurances provided by the Lithuanian Authorities, any accused person extradited from this country will only be detained in Kaunas remand prison, rather than any other remand prison in Lithuania.

The Facts

3. The extradition offence is alleged to have been committed on 4 April 2010. The Appellant is said to have lost control of his car while attempting to overtake in an area where overtaking was prohibited and when driving at an unsafe speed, having regard to the road, visibility and weather conditions. It is alleged that, when he moved across the line to overtake, he collided with another car travelling in the opposite direction, injuring the four people inside. The driver and two of the passengers did not suffer any serious injury. However, one of the passengers is said to have suffered "severe impairment of health". There are no details provided but it is reasonable to assume that this passenger received some serious injuries. The maximum sentence in Lithuania for this offence is five years' imprisonment. The Appellant denies that he was driving the car at the time.
4. Initially the Appellant was interviewed as a witness in relation to this incident, on 6 April 2010. He was questioned without a lawyer being present and he made no admissions. He was released without any bail conditions and with no indications of further investigation into his involvement. He was not prohibited from leaving Lithuania and was not required to maintain contact with the authorities or notify them of any change of address.
5. The Appellant then moved to this country on 29 May 2010 to find work, and he started work two days later. His wife joined him here in February 2011 with their young daughter, Maya, now aged five (date of birth 23 May 2009) and they have settled in Hereford. The Appellant has not been convicted of any criminal offence, either in Lithuania or in this country.
6. The Respondent's reply to the request for additional information, dated 28 February 2014, indicates that the Appellant was first classified as a suspect on 30 December 2010, when the Prosecutor announced him to be a "wanted person". The Appellant flew back to Lithuania for a three week Christmas holiday on 16 December 2010, when he was wholly unaware that he was now wanted for this offence. He was not arrested while he was in Lithuania.
7. On 14 September 2011 Interpol informed the Lithuanian police that the Appellant was living in this country and they provided the police with his address in Hereford.
8. On 5 March 2012 the Appellant's son Daniel was born and is now, therefore, two years of age.
9. The arrest of the Appellant was not ordered by the Salcininkai District Court until 21 May 2013, some 20 months after the Interpol notification. The European Arrest Warrant was then issued on 31 May 2013.
10. Extradition proceedings began when the Appellant was arrested at his home on 10 July 2013. They have since been protracted due to pending litigation concerning conditions at Lithuania's prisons, eventually dealt with by the Court in Aleksynas. The extradition hearing for this Appellant eventually proceeded on 14 April 2014, when his extradition was ordered.
11. It was accepted by the Respondent at that hearing that the Appellant was not a fugitive. Although he was interviewed on 6 April 2010 he was under no obligation, when released, to notify the police of any change of address or to maintain contact with the authorities. The sole issue raised at the hearing was Article 8 and the rights of the Appellant and his family to a private and family life.
12. The Appellant gave evidence and was cross-examined. The District Judge acknowledged that the Appellant was entitled to leave Lithuania when he did and that he had been in this country and working since his arrival here in May 2010. His wife and daughter had joined him a few months later and his son was born on 5 March 2012. They all lived together in rented accommodation in Hereford. The District Judge noted that the Appellant's wife was now pregnant again, with the baby due in November 2014. He accepted that this was an unplanned pregnancy. The Appellant was found to be the sole bread winner for the family. He had set up business in this country as a car valeter and his average weekly net pay was £250. He had saved a lump sum of £3000 and was self-supporting. The District Judge accepted that neither the Appellant nor his wife had any family in this country and that the Appellant's friends could only help out occasionally.
13. In concluding that extradition was not disproportionate in this case the District Judge gave the following reasons:

"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 [2013], 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."

The Law

14. There is no dispute as to the applicable law in cases involving Article 8 and the necessary balancing exercise, which are always fact specific and will therefore turn on their own particular circumstances. The relevant authorities are Norris v Government of USA(2) [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, together with ZH (Tanzania) [2011] 2 AC 166, in which the particular issues that arise in cases involving children were considered.
15. The general principles are now well known. (1) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. Exceptionality is a prediction, just as it was in R (Razgar) v SSHD [2004] 2 AC 368, and is not a legal test. (2) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no 'safe havens' to which people can flee in the belief that they will not be sent back. (3) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crimes involved. (4) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.
16. In relation to children special considerations arise, explained by Lady Hale in HH at paragraphs 33-34, as follows:

"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."

17. As Baroness Hale noted at paragraph 45 in HH, the European Commission had been critical of the lack of a proportionality check in some requesting states before issuing a European Arrest Warrant. It is not suggested that an Article 8 proportionality check is required, but there should be some relationship of proportionality between the offending and the consequences. Further, as Lady Hale also noted at paragraph 21:

"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."

18. The balancing exercise falls to be considered on a case by case basis and, in determining what is proportionate in any case, the Court will have regard to all the circumstances.

The Appeal

19. Ms Westcott submits that the District Judge's summary of the applicable law indicates that he was erroneously applying an exceptionality test. By stating that he was looking for, but had not found something "striking or unusual" in this case, he was failing properly to weigh all the factors in the balance as is required. His reference to "hearing this on a daily basis" suggests that he failed to take into account the fact that the impact of extradition on the private and family lives of the Appellant and of the members of his family can be devastating, albeit not unusual. Her first submission, therefore, is that the District Judge applied the wrong test.
20. Inviting this Court to apply the correct test to the Article 8 assessment she submits that, notwithstanding the public interest in extradition for the reasons identified in HH, this Court should find that the extradition of this Appellant would, in the particular circumstances of this case, constitute a disproportionate interference with the Article 8 rights of the Appellant and his family.
21. In this respect she refers to the fact that events have moved on since the District Judge considered the evidence, because the cash savings he referred to in his judgment have now dwindled in the past three months. There is a short, additional statement from the Appellant updating the position, and Ms Westcott has also included in the appeal bundle the latest report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), dated 4 June 2014, and the Lithuanian Government's response, attached to that report. Ms Townshend did not object to these documents being admitted in evidence and I have had regard to them, so far as they are relevant to the issues arising in this appeal.
22. Ms Westcott relies essentially on the impact of extradition on these young children and on this family unit as a whole; on the Appellant's own private life; on the age and nature of the offence; on the delay that has occurred, in a case where it is conceded that the Appellant is not a fugitive; and on the lack of any prosecutorial discretion in Lithuania prior to issuing the warrant.
23. Opposing the appeal Ms Townshend accepts that the language used by the District Judge would appear to suggest that he applied the incorrect legal test. However, she submits that, on closer inspection, and notwithstanding the use of some infelicitous language, he did in fact adopt the right approach, weigh all the relevant factors in the balance and carry out the necessary balancing exercise required under Article 8. In any event, even if she is wrong about that, she submits that this Court, applying the right test, should arrive at the same decision. The charge brought against the Appellant involves a serious offence of dangerous driving, in the course of which the four occupants of the other car were all injured, one seriously so. In her submission there has been no excessive delay in this case and certainly no culpable delay on the part of the requesting Authority. The offence itself she submits is fairly recent. While it is correct that the Appellant and his family will suffer hardship as a result of his extradition, she submits that the personal circumstances of the Appellant and his family do not approach the standard required for a finding that extradition would be a disproportionate interference with their Article 8 rights.

Discussion

24. The criticisms made by both counsel of the legal test referred to by the District Judge are well founded. Even allowing for the fact that this was a brief, ex tempore judgment in an undoubtedly busy list, the references to the Appellant having "a high threshold" to overcome, and to the need for there to be "striking or unusual facts" for the challenge to extradition to succeed, are plainly wrong. They are indicative of an incorrect approach to the consideration of Article 8 rights and should not be used.
25. As Lady Hale pointed out at paragraph 7 in HH, referring to the decision in Norris:

"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"

26. Lord Judge CJ said this at paragraph 124:

"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 [2010] 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."

27. While the District Judge did refer expressly to considering certain factors "on the one hand" and other factors "on the other side", I am not persuaded that in doing so he avoided falling into the trap identified in HH, with the result that he was, in error, looking for something exceptional or striking in this case, rather than considering the potential impact of extradition on the Appellant and the members of his family. His observation that "we hear this on a daily basis" supports that conclusion and was unfortunate. The frequency with which Article 8 rights are raised in extradition cases has no bearing on the need for a careful balancing exercise to be carried out on the specific facts of each case. The District Judge must always examine carefully the ways in which extradition would interfere with the private and family life of the requested person and the members of his or her family, and whether that is outweighed by the strong public interest in extradition.
28. The question in this appeal is therefore whether, applying the correct test, I would arrive at the same decision on the evidence.
29. The family unit in this case comprises the Appellant, his wife and two young children, aged five and two. A third child is due on 11 November this year. The Appellant was found to be a hard working, family man of good character who had settled here since his arrival in May 2010 and who is the sole breadwinner. He has been in work since his arrival and has set up his own car valeting business. He was not therefore the primary carer of the two children, but the District Judge accepted the evidence that he played a very active role in the family and had a very close relationship with his children. That would undoubtedly increase as his wife's pregnancy progressed, and after their third child was born. It was accepted that this third pregnancy was unplanned. Both children speak English and Maya, aged five, is now settled at school and Daniel, aged two, is attending nursery.
30. The District Judge accepted the evidence that neither the Appellant nor his wife had any family in this country and that their friends and acquaintances could offer help only occasionally. The evidence before him was that, while the Appellant's parents are both in Lithuania, his wife's father is deceased and her mother, who also lives in Lithuania is unwell and not in a position to help. There was apparently some evidence that the Appellant's brother was now with the Appellant's parents in Lithuania. The District Judge queried whether he might be in a position to assist, but the Appellant did not suggest that he could, there is no evidence in front of me about that and the District Judge made no reference to it.
31. There is no suggestion of any attempt by this Appellant to overplay the impact of extradition on his family. It appears that he is in the process of winding up his business, in case he has to go back to Lithuania. He has taken on no new car valeting contracts, and he will be unable to complete all the outstanding contracts for existing clients, which means that financial penalties are likely to be imposed. The financial hardship which would be caused to his family if he were to be extradited would therefore increase significantly. They have been living on their savings so far, but these are now rapidly dwindling. He is at a loss to know what will happen when they have gone.
32. The practical effects of the financial hardship that would result from the Appellant's extradition would, I accept, impact significantly on his wife and on their two young children, not least in terms of their present accommodation, which would be in jeopardy. Ms Westcott submits that the children would be placed in extremely challenging circumstances in this respect and I accept that submission. The problems are increased because of the imminent arrival of a third child. The pregnancy is progressing well so far and there are no physical complications, but the evidence before me is that the Appellant's wife is presently suffering considerable anxiety and distress, as might be expected. There is no extended family in this country to provide assistance.
33. In addition to financial hardship and its effects, this Court must place in the balance the emotional damage likely to be caused to these very young children, as a result of their father's absence for an indefinite period of time. There is no evidence as to how long the Appellant is likely to be in custody on remand awaiting his trial, or when the trial is likely to be heard. Ms Townshend submitted that the case was now likely be "trial ready", but there is no evidence that it is, or as to a likely hearing date. Given the close relationship this Appellant has with his children, I have no hesitation in finding that separation from their father will be likely to have a particularly damaging impact on their emotional health, and possibly on their physical health. They are still very young and it is well understood that such separation can have lasting effects upon a child's development.
34. In such cases, it is appropriate to consider whether there are measures in place in Lithuania which could cushion the blow and limit the effects of this separation, such as telephone calls or face-time link up over the telephone or the internet. Prison visits are, I acknowledge, unlikely given the financial circumstances in which the family would find themselves. There is no evidence that financial support of this kind could be provided by any member of the extended family in Lithuania.
35. In this respect, I note the CPT Report of 4 June 2014 which, in relation to contact with the outside world for remand prisoners, states (at paragraph 77) that:

"The legal provisions regarding contact with the outside world for remand prisoners have not changed since the CPT's last visit [2011]. 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."

36. The CPT recommended that the relevant legislation should be amended, in order to establish the principle that remand prisoners are entitled to receive visits and make telephone calls. I note that the Government's response to this section of the Report (page 31) does not clearly address these specific concerns in relation to remand prisoners. The references to visits and telephone calls appear to conflate the statutory entitlement for sentenced and remand prisoners, and the entitlement appears to be at the discretion of the prosecutor or the court. There is, in my view, a lack of transparency in this regard, and I am not reassured that these two children would be able to maintain contact with their father through such means while he is in custody on remand.
37. The absence of effective communication also impacts upon the Appellant's own private life in Article 8 terms. His inability to communicate effectively with his children and with his wife while he is on remand awaiting his trial would, I accept, significantly increase his anxiety as to their financial situation and, more broadly, their general welfare. In the circumstances extradition would have a far greater impact on him than if he were to serve a prison sentence within the guideline range that could be imposed for this offence in this country.
38. There is some force, in my view, in Ms Westcott's expressed concerns as to the request for this Appellant, at this stage, to be returned to Lithuania in custody. He complied with the police investigation at the outset and, after giving his account, was released without any conditions or restrictions. I accept that he has always been willing to return voluntarily to Lithuania to answer further questions or to attend court, as he states. He is therefore not someone who can be said to have sought a "safe haven" to avoid being sent back for trial. I accept, as did the District Judge, that he has always been motivated in this case by his concern for his family.
39. In referring in his judgment to the Appellant having "a choice to go back to Lithuania", the District Judge was referring to the possible return of the entire family unit. I am told that there was some discussion about this below, when the Appellant gave evidence. However, it has always been his case that this is not a viable option for his family, and I have to consider the situation as it is now, with the family having settled in this country, the two children settled in at school and nursery and another child now on the way.
40. In relation to the offence of dangerous driving with which the Appellant is charged, this offence embraces a wide range of factors and levels of culpability, ranging from the momentary but dangerous lapse from otherwise careful driving, to driving at excessive speeds over a considerable period of time, racing through residential areas or through red traffic lights, mounting pavements and the like. The information we have about this offence indicates that it is closer to the lower end of the range in terms of culpability. The Appellant is alleged to have tried to overtake another vehicle when it was unsafe to do so, and when he was driving too fast for the conditions, so that he could not control the car and avoid a collision with the oncoming vehicle. There is no suggestion that he was driving at persistently dangerous speeds or carrying out other dangerous manoeuvres on the road. He has no previous convictions in Lithuania or in this country and there is no suggestion that he has incurred any previous driving penalties.
41. The aggravating feature of this offence is clearly the fact that one of the occupants of the oncoming vehicle sustained serious injury and I must weigh that in the balance. This, no doubt, is what led the District Judge to describe it as a serious offence. I do not accept Ms Townshend's submission that speed was another aggravating factor in this case, given the absence of persistent, excessive speed and the fact that overtaking at speed were the two elements which constituted this offence.
42. The offence was therefore by no means trivial, but I accept Ms Westcott's submission that it cannot be regarded as an offence of great gravity, or as a 'trump card' in all the circumstances. Ms Townshend fairly accepts that it is not the most serious of offences. Ms Westcott points out that, even if the Appellant were to be convicted, the offence of dangerous driving is triable either way in this country and carries a maximum sentence of two years imprisonment, with a non-custodial option in sentencing terms, reflecting the different levels of culpability that arise. I bear in mind that the Appellant gave an account to the police in respect of this offence when he was first interviewed as a witness, two days after it occurred, and that more than four years have now passed since the offence was committed.
43. That brings me to the question of delay. I accept Ms Townshend's submission that, in extradition terms, the overall delay that has occurred in this case has not been excessive, but there has been delay in this case and it is clearly relevant to the Article 8 question. The fact of delay is heightened in a case where, as is accepted here, the requested person had no knowledge that he was a wanted person. It is conceded that he is not a fugitive.
44. The offence is now over four years old. After being interviewed as a witness on 6 April 2010, the Appellant came to this country to work, as he was entitled to. He was not categorised as a suspect until nine months later, on 30 December. He was therefore a 'wanted person' at the time he was back in Lithuania for three weeks, over Christmas 2010/2011, but he was not arrested at that stage and it is accepted that he returned to this country unaware that the police had been instructed to look for him. His family joined him and they became settled here, their son being born in March 2012.
45. Despite Interpol notifying the Lithuanian authorities on 14 September 2011 that the Appellant was in this country, and at the same time providing them with his address, the Lithuanian Court did not issue a domestic warrant for his arrest until 21 May 2013. Since the issue of the EAW on 31 May, there have been further delays due to the pending litigation relating to prison conditions and the decision in Aleksynas.
46. None of this delay can be attributed to the Appellant. While I accept that the delay before eventually pronouncing him as a wanted person, on 30 December 2010, would have been due to the ongoing police investigation, the subsequent delay before the issue of the domestic warrant on 21 May 2013 is unexplained. It indicates, in my view, a lack of urgency in the pursuit of this Appellant, which is also some indication of the importance attached to his offending.

Conclusion

47. Over the four years since this offence was committed this Appellant, as the District Judge accepted, has made a new and useful life for himself in this country with his family. He has worked hard to support his wife and children and successfully so. At no time did he have any reason to believe that the Lithuanian authorities would seek his return. His extradition now would have a severe impact upon the family unit as a whole, but in particular upon the two young children of this family, whose ages render them especially vulnerable to the serious adverse effects of separation from their father for an indefinite period of time. In my judgment, the public interest in returning this Appellant to face trial and possible sentence upon this charge is not such as to justify the serious harm that would be caused to these children as a result of a prolonged separation from their father. As Lord Kerr succinctly expressed it in HH the public interest importance of maintaining a comprehensive system of extradition will not suffer a significant impairment if this Appellant's surrender to the Lithuanian authorities is not ordered. By contrast, the adverse impact on his family and in particular on his children, is likely to be profound.
48. For all the reasons set out above I have concluded that this appeal must be allowed.