England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		19 March 2015

1. LORD JUSTICE BURNETT: This is an appeal against the order of District Judge Purdy of 5 December 2014 whereby he ordered the appellant's extradition to Lithuania. He had been arrested on 19 April 2014 pursuant to a European Arrest Warrant issued by the Siauliai Regional Court on 5 March 2014. All appropriate formalities were complied with.
2. The appellant had been convicted on 30 December 2011 of an offence of attempted rape and sentenced to a term of imprisonment of 2 years and 3 months. The appellant absented himself from the criminal proceedings in Lithuania. The whole sentence, except for three days, remains unserved.
3. Before the district judge, the appellant argued that he should not be extradited because:

(1) There was no assurance that he would be retried as required by section 20 of the Extradition Act 2003;

(2) Prison conditions generally in Lithuania were such that his return to serve his sentence would violate Article 3 of the European Convention on Human Rights and was thus prevented by section 21 of the 2003 Act. In that regard, he also argued that as a homosexual he would be vulnerable to ill-treatment in prison which the authorities would not prevent;

(3) He is at risk of suicide and so his extradition is prevented by section 25 of the 2003 Act on the basis that it would be unjust or oppressive.

4. The district judge rejected those arguments. He heard oral evidence from the appellant and had a detailed witness statement from him. He also had a bundle of documents, which included the appellant's prison medical record, which contained information of an attempt at self-harm. The appellant produced two unsigned and undated documents from people said to have experienced Lithuanian prison conditions. There was an unauthenticated photograph of a prison cell, a report from an expert which had been prepared in a different case, together with a statement from a Lithuanian lawyer intended to be specific to this appellant's case and to his sexual orientation. The district judge had heard evidence from both these experts in a previous case. They were not produced for cross-examination on this occasion. He had previously found their evidence unreliable and unpersuasive.
5. In a detailed reserved ruling, the district judge rejected all the arguments advanced by the appellant. He concluded that the appellant had deliberately absented himself from his trial so that the question of a retrial did not arise: see section 20(3) and section 20(5) of the 2003 Act. The district judge said this:

"If denied the opportunity to participate in the trial process and not 'deliberately absent' [the appellant] had a retrial guarantee which is required by section 20. However, if he did participate in all save the final hearing, as is factually so even on his account of the case, and then deliberately fled the country, he chose so to do and cannot now complain ... Factually, I conclude 'deliberately absent' is unanswerable with an overwhelming inference leaving for the UK 23/12/11 can only be explained by a firm conclusion he feared an adverse finding and well knew that was due on or about 30/12/11. I therefore reject this challenge."

6. The district judge also concluded that the evidence before him, including that given by the appellant, did not suggest that conditions in Lithuanian prisons generally were such as to violate Article 3 ECHR. The judge had before him a number of country reports. He concluded: "There is no material before this court to rebut the presumption of ECHR compliance." He referred to the decision of this court in Aleksynas & Ors v Minister of Justice, Republic of Lithuania & Anor [2014] EWHC 437 (Admin).
7. As I have noted, the evidence of the Lithuanian lawyer was directed towards the particular position of homosexuals in the Lithuanian prison estate. In the earlier case in which she had given oral evidence, the district judge had not accepted her assertions. He referred to his earlier ruling in the course of his ruling in the appellant's case in the following terms:

"At para 11 of my ruling I reviewed her testimony and noted she accepted all her information came from 'media reports and clients' and that she had had in 10 years no known homosexual client yet she felt able to assert '99% chance such persons will be beaten up based on the attitude of my clients'. At para 15 I found her account 'honestly expressed' but agreed with Mr Stansfeld's cross-examination of being 'sweeping' and 'guessing' and thus not 'reliable'. I see nothing in the new report to strengthen her standing before this court."

8. On the question of suicide risk, the district judge reviewed what had happened in Wandsworth Prison. He concluded that the self-harm was not linked to concerns about the consequences of surrender but frustration at various events whilst in Wandsworth Prison. In any event, not only was there a presumption that the Lithuanian authorities would take proper measures to alleviate the risk of suicide, the district judge had received positive evidence of suicide prevention measures in Lithuania in another case. He concluded that on any view the exacting test applied in cases where risk of suicide is prayed in aid to resist extradition was not met: see Wolkowicz & Ors v Poland [2013] EWHC102 (Admin).
9. A Notice of Appeal advanced all these grounds afresh. The appellant's solicitors have come off the record. They concluded that there were no arguments that could properly be advanced in support of the appeal. The appellant has appeared in person this afternoon and addressed us about his concerns. He has told us that his solicitors have not presented his case properly, and he is dissatisfied with the way in which they have conducted his original case and this appeal. The appellant has reminded us that in 2002 he spent one month in detention in Lithuania. We have seen that in his witness statement. It appears to have flowed from his inability to pay a fine. He tells us that his experience on that occasion leads him to believe that it is "impossible to live in prison conditions in Lithuania"; that the prison officers in Lithuania do nothing to protect homosexuals from attack; and that the medical facilities available, particularly as regards mental health, are less developed than in the prison in which he is on remand.
10. We turn then to our conclusions. For the reasons given by the district judge, which flowed from his factual findings regarding the circumstances in which the appellant left his trial, the argument advanced by reference to section 20 of the 2003 Act has no possible merit.
11. The question whether prison conditions for convicted prisoners in Lithuania are generally such as to prevent extradition by reference to Article 3 ECHR was considered by this court in the case to which the district judge referred, namely Aleksynas & Ors v Minister of Justice, Republic of Lithuania & Anor [2014] EWHC 437 (Admin). A total of seven different cases were brought together to consider that issue and others relating to Lithuania. Between paragraphs 52 and 67 of his judgment, Jay J reviewed all of the voluminous evidence that was before the court on that occasion. He stated the conclusion of the court at paragraph 103 of the judgment:

"In my judgment, my review of the evidence bearing on the conviction prisons establishes that the Appellants have fallen a long way short of proving that they face a real risk of Article 3 violations if incarcerated in any such prison in Lithuania. Even taking the CPT reports and the reports from the Seimas Ombudsmen at their highest, the available evidence does not trigger substantial concerns of inhuman or degrading treatment. It must also be reiterated that Professor Morgan drew a clear distinction in his oral evidence between conviction prisons and remand prisons, and that no Strasbourg case was drawn to our attention upholding Article 3 violations in such institutions. I conclude that standards in Lithuanian conviction prisons are not unacceptably low."

12. The material that was before the district judge, including the appellant's experience in 2002, added nothing to that reviewed by the court in Aleksynas. His conclusion is, in my judgment, unassailable.
13. The evidence adduced in support of a different conclusion as regards homosexual prisoners was, in my view, thin in the extreme. The district judge was entitled to conclude that the ground was not established. Nonetheless, he recognised that there was cultural hostility to homosexuals in Lithuania. Similarly, his conclusion on the suicide issue in the light of the material before him and authority of this court is also unassailable.
14. In these circumstances, if my Lord agrees, the appeal will be dismissed.
15. MR JUSTICE LEWIS: I agree that the appeal should be dismissed.
16. LORD JUSTICE BURNETT: Mr Kontautas, that is the end of the appeal. As you have heard through the interpreter, we have dismissed your appeal.
17. Mr Stansfeld, thank you for your attendance.