Vilionis v Vilnius County Court Lithuania & Anor

The appellant is sought by the Lithuanian authorities under two European Arrest Warrants. The first, EAW 1, is a conviction warrant issued on 16 June 2014 in respect of offences of robbery and commercial burglary committed in 2011. The appellant received a suspended sentence of 21 months’ imprisonment but failed to comply with the conditions of suspension. In consequence, the sentence was activated on 28 March 2014 by which time the appellant was no longer in Lithuania. He left in about January 2014. He was arrested in the United Kingdom on 15 February 2015 and since then has been remanded in custody in connection with EAW 1. District Judge Ikram ordered the appellant’s extradition on 3 November 2015. He has now served the sentence in full for which he is wanted under EAW 1. In those circumstances it is common ground that his appeal in relation to EAW 1 must be allowed.

Before the appellant could be surrendered (or his appeal against extradition heard), EAW 2 was issued on 9 November 2015 and certified by the National Crime Agency [“the NCA”] on 14 December 2015. The appellant is accused of robbing a youth whilst threatening to use a knife on him, on 16 October 2013. He was arrested pursuant to EAW 2 on 21 December 2015 and has been in custody in parallel with EAW 1 since then. The parties asked that the same judge should conduct the new extradition proceedings. The hearing took place in June 2016 and resulted in an order for the appellant’s surrender pursuant to EAW 2 on 2 August 2016. Once the Lithuanian authorities were aware of the appellant’s presence in the United Kingdom following his arrest on EAW 1 they had originally planned to proceed against him for the outstanding robbery with his consent, or that of the United Kingdom, once he was surrendered pursuant to EAW 1. In due course they changed their minds and determined that they should issue EAW 2.

The appellant’s arrest in February 2015 occurred when he was approached by a police officer for an unconnected matter. His name was checked against the usual databases which revealed the existence of EAW 1.

At the time of his arrest the appellant had already been accepted by the relevant competent authority in England (the NCA wearing a different hat) as being a victim of human trafficking. In May 2014 the Norfolk police arrested a number of suspected people traffickers, including the appellant who at that time was using a false name. In interview it became clear that the appellant may well be a victim of trafficking rather than a trafficker. The United Kingdom is a party to a number of international agreements relating to how suspected victims of trafficking should be treated and protected. They are discussed in some detail in Olga C v The Prosecutor General’s Office of the Republic of Latvia [2016] EWHC 2211 (Admin). Additionally, article 4 of the European Convention on Human Rights [“ECHR”] prohibits slavery and forced labour.

On 17 and 18 May 2014 the appellant gave an account of how he came to the United Kingdom. The appellant suggested that he came voluntarily to England on the promise that he would be able to work and earn well here, but was put to forced labour after he arrived. He was required to steal and was beaten. His identification documents and telephone were confiscated and he was threatened with serious consequences, both personally and to his family, if he objected or contacted the authorities. On the strength of that account the NCA accepted that there were reasonable grounds to suspect that he was a victim of trafficking. The appellant gave further information which credibly confirmed that he had been tricked into coming to England. In July 2014 the NCA concluded that the appellant probably was a victim of trafficking. That enabled him to receive specialist support, which continued until his arrest and remand in custody.

At the extradition hearing in respect of EAW 1 the appellant advanced three grounds to resist his surrender:

In evidence before the judge the appellant gave an entirely different account of the circumstances in which he said he was the victim of trafficking and came to be in England. He suggested that he had been forcibly trafficked to Norway before returning to Lithuania in December 2013. He was then forcibly trafficked to England. He said that he had told lies to the police in England. The judge accepted the appellant’s revised account and, as a result, was not satisfied that he was a fugitive when he left Lithuania.

In an accusation case, extradition is barred by section 14 of the 2003 Act if (and only if) it appears that it would be unjust or oppressive to extradite the requested person by reason of the passage of time since he is alleged to have committed the offence in question. A fugitive may not rely upon the passage of time which follows his leaving the requesting state, save in the “most exceptional circumstances” referred to by Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779 at 782 to 783. On the judge’s finding at the extradition hearing in relation to EAW 1, the appellant was able to rely upon the passage of time for the purposes of section 14; but he concluded there was no real delay in any event and there was no basis for supposing that the appellant’s extradition would be unjust or oppressive by reference to it. The judge was unimpressed by the article 8 argument and did not accept that Lithuania would fail to abide by its international obligations to protect the appellant against further trafficking on return. So he rejected the article 4 argument.

Finally, the judge considered carefully the medical evidence detailing psychiatric problems and the appellant’s history of self-harm. Nonetheless, he concluded that the appellant fell short of establishing the heavy burden required to resist extradition relying upon section 25 of the 2003 Act as articulated in Poland v Wolkowicz [2013] 1 WLR 2402.

The same arguments were originally relied upon in the appeal against extradition pursuant to EAW 1.

The challenge to EAW 2 before the judge was more widely based. The arguments relating to the passage of time under section 14, oppression under section 25 and reliance upon articles 4 and 8 ECHR under section 21 of the 2003 Act were repeated. The appellant argued additionally that there had been no decision to charge or try him, as required by section 12A of the 2003 Act, and also that for the purposes of section 21A his extradition would be disproportionate. The judge rejected all grounds. Save for the argument pursuant to section 12A, they are repeated before this court.

There was further information available to the judge at the EAW 2 extradition hearing relating to events in Lithuania at the end of 2013 and 2014. As a result, the Lithuanian judicial authority invited the judge to revisit the question whether the appellant was a fugitive when he left Lithuania. The account of his departure given to the NCA in 2014, if correct, would support the conclusion that he departed Lithuania voluntarily in full knowledge of the suspended sentence and his obligations under it. There was evidence that he had committed a further offence which provided a possible explanation for leaving Lithuania. The appellant’s subsequent account of course suggested otherwise. Having considered the fresh material in the light of the earlier evidence he had heard, and with neither party seeking further to examine or cross-examine the appellant, the judge reversed his earlier finding and concluded that the appellant was indeed a fugitive. The finding that the appellant was a fugitive effectively prevented him from relying upon the passage of time since he was alleged to have committed the robbery offence. Additionally, the judge concluded that, on any view, the delay resulted in neither oppression nor injustice. He rejected the arguments under the ECHR and section 25 in much the same terms as before; and those relating to sections 12A and 21A of the 2003 Act by reference to the decision of this court in Puceviciene v German Judicial Authority [2016] 1 WLR 4937.

In the course of his oral submissions on behalf of the appellant, Mr Carter QC recognised that there was no tenable argument that his extradition to Lithuania would violate his rights under article 4 ECHR. To succeed in showing that his surrender would breach article 4 ECHR an appellant must show not only that he is at real risk of being re-trafficked by criminals but that the requesting state is not in a position to provide appropriate protection. The position is analogous with cases which involve the suggestion that someone will face treatment contrary to article 3 ECHR at the hands of non-state actors: as to which see R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668 and, for the analogy, the Olga C case at paragraph 10. People-trafficking is a worldwide phenomenon. The United States State Department monitors the progress made by countries the world over in combatting trafficking. It does so by reference to domestic US legislation but its detailed description provides an objective assessment of a country’s general compliance with its international obligations. It produces an annual report which divides countries into four tiers. Lithuania is a Tier 1 country. That suggests it fully meets its obligations. Appearance in one of the other tiers does not necessarily lead to the conclusion that surrender to such a country would violate article 4 ECHR; it should not be forgotten that in all cases of extradition of a formerly trafficked person the receiving state would be on notice of any vulnerability and might be expected to take the necessary precautions. That is particularly so with a state party to the ECHR where strong presumptions of compliance operate. But appearance in Tier 1, for all practical purposes, puts an end to the argument.

The appellant relies upon the fact of his being trafficked as indicating a vulnerability which he submits should go into the balance for article 8 purposes. The appellant also relies upon his medical problems in support of his contentions that it would be oppressive to extradite him and breach his rights guaranteed by article 8 ECHR.

A broad range of medical evidence was before the judge at each extradition hearing. Dr Adam Duncan, a chartered psychologist, produced a report dated 19 June 2015. He noted the difficult childhood and adolescence experienced by the appellant. He had a history of abusing drugs and alcohol. He was suffering from severe anxiety, depression, symptoms associated with post-traumatic stress and was at a high risk of suicide. He had attempted suicide twice. Extradition would heighten the risk. A psychiatric report from Dr Pamela Walters dated 17 August 2015 concluded that the appellant was suffering from moderately severe depression with somatic syndrome, together with an adjustment disorder. She agreed that he was at a high risk of suicide. He had made another attempt since being seen by Dr Duncan. The medical records from the prison at that time confirm his fear of being returned to Lithuania. Appropriate steps were being taken to protect against the risk of suicide.

Dr Walters produced an addendum report on 24 February 2016. The position was much the same. Medical records showed that the appellant had been under the care of both prison and external medical staff. He had been prescribed medication but was reluctant to take it. There was no question that his will was overborn by his mental health problems. He continued to threaten to kill himself if he were extradited. Recent evidence from the prison suggests he is settled and providing great assistance to other prisoners.

Mr Carter readily accepted that the passage of time since the appellant finished the equivalent of the custodial sentence he was wanted for under EAW 1, only a handful of months, could not found an argument pursuant to section 14 of the 2003 Act. Instead he argues that the passage of time since the alleged offence which supports EAW 2, and between the activation of the suspended sentence on 28 March 2014, which gave rise to EAW 1, and his arrest in February 2015 and then the issuing of EAW 2 on 3 November 2015 should all fall into consideration. He submits that the combination of the appellant’s vulnerability as a victim of trafficking and the development of psychiatric symptoms in the intervening period mean that it would be oppressive to extradite him. A faint argument is advanced to suggest that it would be unjust to extradite. “Unjust” is concerned primarily with the risk of prejudice to the accused in the conduct of the trial itself.

Mr Carter submits that the judge was wrong to conclude that the appellant was a fugitive when he left Lithuania and that it was irrational for him to come to that conclusion in the face of his earlier finding to the contrary. I disagree. At the first extradition hearing the Judicial Authority mounted a strong argument that the appellant was a fugitive. They relied upon the account he had given the British authorities of his movements, in which there was no mention of being trafficked to Norway, and the complete absence of any corroborative evidence that he had been in Norway. They pointed to his own medical evidence which questioned his reliability as a witness. The new EAW 2 provided evidential support for the proposition that he was in his home town in Lithuania on 16 October 2013. It is the same place in which the earlier offences were committed. There was also evidence that he was there on 30 November 2013, because he was the subject of civil hooliganism proceedings held that day. The events at the end of 2013 provided a clear motive for leaving Lithuania. The appellant probably left in January 2014. In combination these features substantially weakened the contention that the appellant had been in Norway. The judge did not accept that the appellant had been frank in his earlier evidence. He rejected the account that the appellant had been trafficked to England against his will but accepted that once here he was exploited. There is no dispute that the judge was entitled to revisit the issue in the second extradition proceedings on the totality of the material then before him. His new conclusion was open to him on the evidence. It follows that the appellant’s argument on the passage of time falls at the first hurdle: he was a fugitive. Mr Carter sought to bring the appellant’s position within the “most exceptional circumstances” envisaged in the Kakis case but, in my opinion, it is very far removed indeed from what Lord Diplock had in mind.

I have noted the alternative conclusion of the judge. If he was wrong in his finding that the appellant was a fugitive he was unpersuaded that by reason of the passage of time, which was very short in any event, it would be unjust or oppressive to extradite him. The correct approach to section 14 of the 2003 Act was authoritatively considered by the House of Lords in Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038. I mean no disrespect to the elegance of Mr Carter’s argument by simply recording that the judge was not only entitled to come to the view he did on this question, but was clearly right to do so.

The approach to article 8 ECHR in an extradition case was summarised in Polish Judicial Authority v Celinski [2016] 1 WLR 551 by reference to two earlier decisions of the Supreme Court, Norris v Government of the United States of America (No. 2) [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338:

“5.

The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in two decisions of the Supreme Court: Norris v Government of the USA (No.2) [2010] UKSC 9, [2010] 2 AC 487 and HH.

6.

In HH Baroness Hale summarised the effect of the decision in Norris at paragraph 8; in subparagraphs (3) (4) and (5), she made clear that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition. There was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that those convicted of crimes should serve their sentences; that the UK should honour its international obligations and the UK should not become a safe haven. That public interest would always carry great weight, but the weight varied according to the nature and seriousness of the crime involved. This was again emphasised by Baroness Hale at paragraph 31, by Lord Judge at paragraph 111 (where he set out a number of passages to this effect from Norris) and at paragraph 121, Lord Kerr at paragraph 141; Lord Wilson at paragraphs 161-2 and 167.

7.

It is clear from our consideration of these appeals that it is important that the judge in the extradition hearing bears in mind, when applying the principles set out in Norris and HH, a number of matters.

8.

First, HH concerned three cases each of which involved the interests of children: see in particular the judgment of Baroness Hale at paragraphs 9-15, 24-25, 33-34, 44-48, 67-79, 82-86; Lord Mance at paragraphs 98-101; Lord Judge at paragraphs 113-117, 123-132; Lord Kerr at paragraphs 144-146; Lord Wilson at paragraphs 153-156 and 170. The judgments must be read in that context.

9.

Second the public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice. We would expect a judge to address these factors expressly in the reasoned judgment.

10.

Third the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect. Part I of the 2003 Act gave effect to the European Framework Decision of 13 June 2002; it replaced the system of requests for extradition by Governments (of which the judicial review before the court in respect of the Polish national is a surviving illustration). The arrangements under Part I of the 2003 Act operate between judicial authorities without any intervention of governments. In applying the principles to requests by judicial authorities within the European Union, it is essential therefore to bear in mind that the procedures under Part I (reflecting the Framework Decision) are based on principles of mutual confidence and respect between the judicial authorities of the Member States of the European Union. As the UK has been subject to the jurisdiction of the CJEU since 1 December 2014, it is important for the courts of England and Wales to have regard to the jurisprudence of that court on the Framework Decision and the importance of mutual confidence and respect.

11.

Fourth, decisions on whether to prosecute an offender in England and Wales are on constitutional principles ordinarily matters for the independent decision of the prosecutor save in circumstances set out in authorities such as A (RJ) [2012] 2 Cr App R 8, [2012] EWCA Crim 434; challenges to those decisions are generally only permissible in the pre-trial criminal proceedings or the trial itself. The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8.

12.

Fifth, factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; it is therefore important in an accusation EAW for the judge at the extradition hearing to bear that in mind. Although personal factors relating to family life will be factors to be brought into the balance under Article 8, the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction.”

A sixth point concerned conviction warrants.

The District Judge had regard to these principles in coming to the conclusion that the appellant could not rely successfully on article 8 to resist extradition. He listed the article 8 factors which weighed against extradition. The appellant was only 20 at the time of the alleged offence; he had been in the United Kingdom since 2014 (albeit much of that time in prison); there was a risk of “re-victimisation”, as it was put, if returned to Lithuania; and there was his medical position. The judge concluded that the balance fell in favour of extradition.

Mr Carter focusses his submissions under article 8 on the risk that the Lithuanian state, despite its best endeavours, will be unable to protect the appellant from being trafficked again; together with his vulnerability consequent upon his mental illness and risk of suicide. These factors were taken into account by the judge. The submission is that he failed to give them sufficient weight. The question for this court is whether the conclusion of the judge was wrong. It my view it was not. The truth is that the article 8 argument was always weak in this case. It would seem that article 8 arguments are advanced almost as a matter of course at Westminster Magistrates’ Court in extradition cases. The effect of the authorities to which I have referred is to set a high bar for successful reliance on article 8. This appellant falls far short of surmounting that bar.

Section 25 of the 2003 Act requires that a requested person must be discharged, or the extradition hearing adjourned, if “the physical or mental condition of the person … is such that it would be unjust or oppressive to extradite him.” The judge concluded that the appellant’s mental illness and the risk of suicide disclosed by the medical evidence did not meet the test specified in the Wolkowicz case. In paragraph 8 of the judgment of the court Sir John Thomas P quoted with approval a distillation of the approach to section 25 found in the judgment of Aikens LJ in Turner v United States of America [2012] EWHC 2426 (Admin) which included the observation at paragraph 28 that:

“The mental condition of the person must be such that it removes his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.”

The medical evidence does not support the suggestion that the appellant is unable to resist the impulse to commit suicide; it is to contrary effect. That said, as Sir John went on to explain in paragraphs 10 and 11, an important question even if that criterion (and others set out by Aikens LJ) is satisfied is the efficacy of preventive measures. There is a strong presumption that Category 1 states will honour their obligations under the ECHR which requires cogent and compelling evidence to rebut it. Taking the appellant’s psychiatric condition at its highest and recognising the previous incidents of self-harm, he falls far short of establishing that his extradition would be oppressive.

It is now well established that upon surrendering a requested person with medical problems, physical or mental, and particularly if there is a risk of self-harm, information relating to those problems should accompany him. In that way, the authorities in the receiving state will be able to ensure continuity of treatment and, where appropriate, take proper steps to mitigate against the risk of self-harm - just as the relevant authorities do here.

The appellant argues that his extradition would be disproportionate for the purposes of section 21A(1)(b) of the 2003 Act. By subsection (3), only three matters fall to be considered for the purposes of deciding whether extradition would be proportionate: (a) the seriousness of the alleged offence; (b) the likely penalty; and (c) the possibility of the foreign authorities taking measures that would be less coercive than extradition. The appellant relied upon the last of these on the basis that he would be willing to submit to questioning in the United Kingdom or agree to temporary surrender. The judge rejected this argument as being inconsistent with the conclusion of this court in the Puceviciene case. He was right to do so. Giving the judgment of the court, Lord Thomas of Cwmgiedd CJ said this between paragraphs 79 and 81:

“79.

S.21A also arises for consideration. The structure of the Act requires the judge to consider whether any of the bars operate (see s.12 to s.19A) and only if they do not to consider s.21A. This section provides the means through which the rights of a requested person guaranteed by the European Convention on Human Rights may be protected (s.21A(1)(a)). It also requires the judge to discharge the requested person if his extradition would be disproportionate in the limited sense described by the section (s.21A(1)(b) and (3)). One of the factors which the court must consider is the possibility of "less coercive measures" (s.21A(3)(c)) being taken by the requesting state. If MLA were relevant to s.12A, MLA could only be considered as a less coercive measure under s.21A if the failure to use MLA had not barred extradition under s.12A.

80.

S.21A was considered in Miraszewski and others v District Court in Torun, Poland and another [2014] EWHC 4261 (Admin). The European Council Handbook, addressing concerns about the disproportionate use of the EAW by some Member States, and notably Poland, suggests that the "less coercive instruments" of MLA should be used where possible; [22]-[23]. At [40] Pitchford LJ, with whom Collins J agreed, thought that this might cover MLA for pre-trial proceedings. It is difficult to square that with the statutory effect of s.21A which is that, if the less coercive measure of MLA should have been used, extradition is disproportionate, barred, and the requested person must be discharged. The requested person cannot be compelled to participate in the interview which the requesting judicial authority may thereafter seek under MLA but obviously without any EAW to back it up. If the requested person refuses to participate, or the interview leaves the requesting judicial authority wanting to pursue extradition, it would then have to issue a further EAW, to which this time round the use of MLA as a less coercive measure would be no answer. That is a very convoluted way to achieve what could be achieved much more simply under s.21B.

81.

It is only under s.21B that the decision on the EAW can be delayed while the MLA process takes place. S.21B is therefore the route to the use of MLA to advance the criminal process through interview before extradition so as to reduce pre-trial delay after extradition, or perhaps as a means of changing the mind of the requesting judicial authority on the decision which has already been made to charge and try. It is likely that s.21A(3)(c) was intended, as the Handbook implies, to cover cases where the supposed "accused" was no more than wanted for questioning as a mere suspect. Although that implies that the EAW itself ought to have been found invalid if the requested person was not even an "accused", the need for that word, and others to be given a "cosmopolitan" interpretation, is spelt out in Ali v Public Prosecutor of Bavaria [2014] EWHC 3881 (Admin), [14-21], and may affect what could be achieved with its use.”

Whilst these observations were strictly obiter as they related to section 21A (as opposed to section 12A) in my judgment they are correct. Mr Carter develops a subsidiary submission under section 21A(1)(b) to the effect that the appellant’s vulnerability and history of having been trafficked may, if he were convicted, lead the Lithuanian court to impose a light, possibly non-custodial, sentence. He has served some time on remand exclusively under EAW 2 and, had he been serving his activated sentence pursuant to EAW 1 in Lithuania, he would have been likely to have benefitted from early release provisions. I recognise that there can be no doubt that any sentencing court would take into account everything known about the offender (as well as the offence) in determining the sentence. But there is no doubt that the alleged offence is very serious indeed, the appellant has a poor criminal record and ordinarily one would expect a custodial sentence. In my opinion, even if that court could be persuaded to pass a non-custodial sentence, given the appellant’s history and the fact that he has been on remand in this country, it would not be disproportionate to extradite him for so serious an offence.

None of the grounds advanced by the appellant in respect of EAW 2 succeeds. I would dismiss that appeal. The appeal against EAW 1 is allowed for the reasons given in paragraph 1.

I agree.