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||Neutral Citation Number:  EWHC 131 (Admin)
||Case No: CO/3737/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||30th January 2015
B e f o r e :
LORD JUSTICE AIKENS
MRS JUSTICE NICOLA DAVIES
(Transcript of the Handed Down Judgment of
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David Josse QC & David Williams (instructed by Claude Hornby & Cox) for the Appellant
Mark Summers QC & Saoirse Townshend (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent
Hearing dates: 11/11/2014
HTML VERSION OF JUDGMENT
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Lord Justice Aikens :
- This is the judgment of the court to which both of us have contributed. Before the court is a statutory appeal under sections 26 and 27 of the Extradition Act 2003 ("the EA"). It raises a novel issue concerning the new "forum bar" provision in section 19B of the EA, which was inserted in the EA by Schedule 20 Part 1, paragraph 3 of the Crime and Courts Act 2013.
The procedural history and the issues raised on this appeal.
- This is an appeal by Jaroslav Atraskevic, whom we shall call the appellant, from the decision and order of District Judge Purdy, ("the DJ") which he made on 5 August 2014. The DJ ordered the surrender of the appellant pursuant to a European Arrest Warrant, (EAW), issued by the Prosecutor General's Office of the Republic of Lithuania, whom we will call the Lithuanian judicial authority or JA. The EAW was issued on 3 September 2012. Lithuania is an EU member state and has been designated a Category 1 territory pursuant to section 1 of the EA. The EAW was certified under section 2(7) of the EA by the Serious Organised Crime Agency on 20 January 2013. This case is therefore governed by the provisions of Part 1 of the EA.
- The appellant was arrested pursuant to section 3 of the EA on 9 February 2013 and has since been remanded on conditional bail.
- The surrender of the appellant is requested by the Lithuanian judicial authority in order that he face trial for a joint enterprise offence of organising the transportation of prostitutes from Vilnius, Lithuania, to Birmingham, UK, and then gaining profits from the acts of prostitution of those transported during the period from 27 March 2009 to 7 September 2011. The EAW is, therefore, what is often called an "accusation" warrant.
- The criminal code of Lithuania provides, in Articles 5 and 307, that an offence is committed if a person "organises or is in charge of prostitution or transports a person with her consent for prostitution….from the Republic of Lithuania" and "gains profit from the prostitution of another". This is not one of the listed extradition offence as such, but it plainly meets the test of "dual criminality" set out in sections 10 and 64 of the EA. Although the question of "dual criminality" was contested below, there is now no challenge to the preliminary ruling of DJ Zani, given on 23 July 2013, holding that the requirements of "dual criminality" were met.
- The appeal specifically raises two challenges to the judgment of the DJ. First, it is argued that the "forum bar" provisions in section 19B of the EA apply in this case, so that it is in the interests of justice that the appellant is not extradited. Secondly, it is submitted that it would be contrary to the Article 8 rights of the appellant for him to be surrendered, so that the DJ should have ordered his release under section 21 of the EA.
- In addition, the appellant seeks leave to argue a point that was expressly abandoned below, concerning prison conditions in Lithuania, in particular overcrowding in prisons. It is said that a surrender to the Lithuanian Judicial Authority would be contrary to the appellant's Article 3 rights and so it is barred under section 21 of the EA. In support of this new argument the appellant wishes to adduce evidence of which (obviously) none was before the DJ. In a case management order dated 27 October 2014, Aikens LJ ruled that the issue of whether leave should be given to argue this new point and whether any evidence could be adduced on appeal in support of it would be dealt with at the hearing of the appeal on the other two issues. He further ruled that if the court granted leave to pursue that point, then there would have to be a further hearing of that issue, to be held sometime early in 2015.
The Factual Background in some more detail.
- The appellant was born in Lithuania on 22 June 1972, so he is now 42 years old. He was brought up and went to school in Lithuania until the age of 16. After that he worked in a factory in Vilnius, Lithuania. He came to the UK on a visit for the first time in 2003. He returned to the UK in 2004 and has lived here ever since. He obtained British Citizenship on 17 August 2012. He has a partner who is a Lithuanian citizen and they have a daughter who was born in the UK and is now nine years old. The daughter does not speak Lithuanian. The family lives in Birmingham.
- The allegations against the appellant are set out very fully in Box (e) of the EAW. The English version is quoted in the judgment of DJ Purdy at paragraph 4. We would summarise the allegations as follows: the appellant is accused of taking part in a joint enterprise with three other Lithuanians to recruit prostitutes in Lithuania, transport them (with their "consent") to Birmingham where they acted as prostitutes. The three organisers then took 50% of the prostitutes' earnings. Four prostitutes were involved altogether during the period from March 2009 to September 2011.
The "Forum Bar" provisions in section 19B of Part 1 of the Extradition Act 2003.
- As already noted, sections 19B – 19F were inserted into the EA by the Crime and Courts Act 2013. The sections are not based on the underlying EU Framework Decision of 2002, nor that of 2009. These statutory provisions are therefore purely domestic in origin.
- Section 19B(1) to (4) provide:
(1) The extradition of a person ("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge –
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice –
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to –
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.
- Section 19B(6) defines further the phrase "relevant activity" that is used in section 19B(2)(a). Section 19B(6) provides:
(6) In this section "D's relevant activity" means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D.
- The scheme of section 19B is clear. If a "forum bar" point is raised, the judge has to decide whether the extradition of a person to a category 1 territory "would not be in the interests of justice". In making that decision the judge has to be satisfied on two questions. First, he has to decide whether a substantial measure of the requested person's "relevant activity" was performed in the UK. Whether a "substantial measure" of the requested person's "relevant activity" occurred in the UK will usually be exclusively a question of fact, which will be determined by the "appropriate judge". If this pre-condition is not satisfied then that is the end of this issue. The statutory "forum-bar" cannot operate in that case.
- However, if the judge does decide that a "substantial measure" of the requested person's "relevant activity" was performed in the UK, then he has to decide whether it is in the interests of justice that the extradition should not take place. The judge will do so by first of all "having regard" to all the matters that are specified in section 19B(3). The judge cannot take any other factors into account, apart from the one in section 19B(4) concerning disclosure. One or more factors may or may not be relevant on the facts of a particular case: but in all instances the judge must "have regard" to each of the factors. The weight to be given to each of the specified matters set out in section 19B(3) is for the "appropriate judge", ie. the judge at the extradition hearing, to decide on the facts of the case before him. There is no ranking of importance of the various factors. Finally, the appropriate judge has to make a value judgment overall on whether the extradition of the requested person would "not be in the interests of justice," having had regard to, but only to, the factors set out in section 19B(3). We believe this analysis is entirely consistent of that of Simon J at  of Dibden v Tribunal de Grande Instance de Lille, France  EWHC 3074 (Admin) with which Pitchford LJ agreed. We shall have to consider below the basis on which the appropriate judge's value judgment concerning whether the extradition is or is not in "the interests of justice" can be challenged on appeal under section 26 and 27 of the EA.
The decision of the District Judge on the "Forum Bar" issue.
- DJ Purdy first addressed the argument of the defendant that it was implicit in the wording of section 19B that the domestic CPS (as opposed to the unit in the CPS that deals with EAWs) should have conducted a full investigation of the allegations against the requested person when a "substantial measure" of the requested person's "relevant activity" had been performed in the United Kingdom. DJ Purdy concluded (at  and  of his Ruling) that Parliament may have expected more engagement from the domestic CPS, but not necessarily. Neither the domestic CPS nor the Judicial Authority could be compelled to assist further than they chose. He held that the judge's task was to "address the various points as best I can" on the material available to him.
- DJ Purdy did not expressly make a finding on the "gateway" issue, set out in section 19B(2)(a) of the EA, viz. that "a substantial measure" of the appellant's "relevant activity" had taken place within the jurisdiction. However, given that, at  of his Ruling, DJ Purdy addressed each of the seven criteria set out in section 19B(3) of the EA, he must first have concluded that the "gateway" test was satisfied.
- In  of his Ruling, DJ Purdy dealt with each of the "specified matters" set out in section 19B(3). In relation to section 19B(3)(b) (interests of the victims of the extradition offence) he noted that all the prostitutes involved were now living in Lithuania or Latvia. In relation to factor (c) he found that there was no intention on the part of the CPS to prosecute the appellant in the UK, so "by obvious construction of the CPS position any case should not take place in UK". On factor (f) DJ Purdy noted that all the other defendants to the charges had been dealt with in Vilnius and that only the appellant's case remained outstanding. In relation to factor (g) the judge noted that the appellant is a British citizen and had been resident in the UK for many years, but the DJ held that the appellant was also "a Lithuanian born and bred and a native speaker". He rejected an argument that he was entitled to consider matters other than those listed in section 19B(3) and (4). DJ Purdy concluded, at :
"Every material step towards the resolution of this case "in the interests of justice" points to trial in Vilnius. That is not to say Birmingham is irrelevant, crime seems to have been and intended to occur there. However, save for Jaroslav Atraskevic being in the UK, all other steps towards a prompt trial with witnesses/evidence being available points to Vilnius alone".
- He therefore rejected the "forum bar" argument.
- It will be clear from how the DJ approached the "forum bar" issue that there was considerable argument before him on the division of responsibilities within the CPS for what might be called "domestic prosecution" issues and "extradition" issues and what the obligations of both parts of the CPS were when an issue arose in the context of an "accusation" EAW concerning a possible "forum bar". The argument on "forum bar" before us centred on what Mr David Josse QC, for the appellant, submitted was a wholesale failure of the domestic CPS to grapple with the question of whether there had been or should have been any investigation of the alleged offences of the appellant in the UK and what, if any, decision had been taken in respect of them.
The role of the CPS generally in relation to extradition requests by Category 1 territories
- The court was informed by Mr Mark Summers QC, appearing on behalf of the CPS, which acts on behalf of the Prosecutor General's Office, Republic of Lithuania, that the structure and practice of the CPS in relation to requests for extraditions to category 1 territories is as set out below. Mr Josse did not challenge the analysis relating to this aspect of CPS structure and we accept it. In extradition proceedings, pursuant to section 190 of the EA the CPS Extradition Unit ("CPSEU") represents the interests of the issuing Judicial Authority: in this case the Prosecutor General's Office of Lithuania. In doing so the CPSEU acts as a private solicitor: R (Raissi) v SSHD  QB 836. The CPSEU is an adversarial party to the extradition proceedings: VB & Others v Westminster Magistrates' Court  UKSC 59, at . Like all adversarial parties to criminal litigation, however, its primary duty remains to the court (Raissi (supra) at [137-138]; VB (supra) at ). The CPSEU must therefore ensure that its client complies with its duty of candour, which, however, is not to be confused with the duties of disclosure in domestic criminal proceedings. Mr Summers accepted that the CPSEU should disclose evidence which it knows about and which destroys or severely undermines the evidence on which the requesting state relies: Raissi (supra) at [139-140]. These principles were confirmed recently in R (Gambrah) v Crown Prosecution Service  EWHC 4126 (Admin). Mitting J added, at  of that case, that the CPSEU is obliged to withdraw from proceedings if it finds itself put in the position where its duty to the court conflicts with its duty to the requesting state.
- The domestic CPS ("domCPS"), by contrast, ordinarily plays no part in extradition proceedings. It is concerned only with domestic prosecution and operates within the scope of the Prosecution of Offences Act 1985.
- This split between the duties of the Director of Public Prosecutions in respect of the conduct of domestic prosecutions and that relating to extradition is marked by having two separate departments within the CPS. The distinction was recognised by Richards LJ in giving the judgment of this court in R(Ahsan) v the DPP and the Government of the USA  EWHC 666 (Admin) at .
- There is an internal CPS document dated 18 July 2013, called "CPS Internal Process for dealing with Forum Bar Cases", which is intended to give guidance on the delineation of the functions of the CPSEU and the domestic CPS. That document contemplates four different factual situations. These are:
(a) No domestic prosecutor is or has been engaged;
(b) A decision to charge in this jurisdiction has been made;
(c) A decision that England and Wales is not the most appropriate jurisdiction has been made, and
(d) A decision to issue a prosecutor's certificate has been made.
In respect of the first of those situations, the guidance provides as follows:
"…No domestic prosecutor is or has been engaged…
8. Where it is obvious from the extradition request that forum will be in issue the Extradition Unit lawyer will check CMS to see if a domestic case has been registered and also contact directly the relevant Central Casework Division and Complex Casework Units to find out if a domestic prosecutor is or has been engaged in the case.
9. If it appears that no prosecutor is or has been seized of the case but it appears to be a case where one might expect contact under the guidelines, the Deputy Head of Division (Extradition) will notify the Head of Special Crime and Counter Terrorism Division to decide if any further action is required.
10. If forum is raised and there has been no domestic involvement, the Extradition Unit lawyer will inform the judge. The Extradition Unit lawyer will assist the court with the specified matters as far as is possible. If further information is requested by the court, a domestic prosecutor may need to confirm that the CPS is not engaged domestically and that they have no evidence to consider…".
The facts concerning the role of the CPSEU in this case
- The factual position with regard to enquiries by the CPSEU of any domestic CPS involvement in this case is not in dispute, although Mr David Josse QC, on behalf of the appellant, complained that there has been a lack of disclosure or "transparency" on the part of the CPSEU and the domestic CPS on this issue. However, the position is as follows: (1) On 20 December 2013 the CPSEU confirmed that enquiries had been made on the internal CPS Data system, Compass, and no domestic case had been registered. (2) On 28 February 2014 the CPSEU further confirmed that it had conducted a search of its internal data base and found no information about the requested person, strongly suggesting that no domestic prosecution had ever been considered. At that stage the appellant's legal team was given a copy of the 2013 Guidance to which we have referred above.
- At the first substantive hearing before the DJ on the Forum Bar issue on 3 March 2014, the appellant's counsel pressed the CPS to provide more information, in particular on whether there had been investigations and consideration of a prosecution in the UK. The appellant's legal team also pressed the CPSEU to obtain further information from the Issuing Judicial Authority in Lithuania.
- On 14 April 2014 the CPSEU received further information from the Chief Prosecutor in Lithuania. That information was, briefly, as follows:
(1) The complainants (whose names were provided) had been interviewed as witnesses. They currently resided at addresses in Lithuania (§1);
(2) It identified sources of evidence as follows (§2):
In Lithuania Jurij Masurov and Inesa Kirsanova (the appellant's co-defendants) published photos of the complainants on a website advertising sexual services. The further information also identified:
i. Data on the arrival of AA (a complainant) in Birmingham;
ii. Record of interview with all of the complainants;
iii. Records of identification from photographs;
iv. Records of interviews with a witness, BB;
v. Records of interviews with all of the other three suspects: Inesa Kirsanova, Vitold Cimosevskij, Jurij Masurov;
vi. "Records of use of technical means under special procedure"; and
vii. Material concerning the movement of funds in bank accounts.
(3) The further information also stated:
i. All of this evidence was in Lithuania (§3);
ii. The Requested Person has not been detained or arrested in Lithuania. On 28 August 2012, the Second District Court of Vilnius City issued an arrest warrant for the Requested Person having considered him to be "hiding from the pre-trial investigation" (§4);
iii. On 28 August 2012, a Lithuanian prosecutor considered the Requested Person to be a suspect (§5);
iv. A pre-trial investigation was conducted in relation to the Requested Person and his co-defendants. On 7 September 2012, the Requested Person's case was separated from his co-defendants'. His co-defendants' case was completed culminating in their conviction (§7);
v. The pre-trial investigation could not be completed because the Requested Person was considered to be in hiding. If extradited, he would then be served with a notification of suspicion and following pre-trial investigation, a bill of indictment will be brought. It is only then that a date can be fixed for hearing (§§8 and 9);
vi. The co-defendants had all been charged, tried and convicted of all counts (§§10 and 11);
vii. All of the witnesses are in Lithuania, save for one of the complainants, AA who is in Latvia (§12).
- On 28 April 2014 the CPSEU confirmed that the Chief Crown Prosecutor for the West Midlands had informed them that the CPS West Midlands Area had had no involvement in considering any domestic prosecution against the appellant.
The arguments of the parties on the "forum – bar" issue.
- It was the submission of Mr Mark Summers QC, on behalf of the respondent, that in the circumstances the CPSEU complied fully with the 2013 Guidance document. However, Mr David Josse QC, on behalf of the appellant, argued that the CPSEU ought to have made more enquiries of the police or the investigative agencies within the UK. He submitted that the "interests of justice" factors could only be properly evaluated if there had been far more investigation by the CPSEU and if it had cooperated more with the court and the appellant's advisors. Mr Josse also submitted that the DJ should have concluded that he had the power to compel both the Issuing Judicial Authority and the domestic CPS to make more investigations and provide more material. He submitted that the DJ was wrong in concluding, at  of his Ruling, that he had to decide the "interests of justice" issue on the basis of the evidence before him, rather than on what might have been available. The consequence was, Mr Josse submitted, that the judge failed in his analysis of the specified factors in section 19B(3) but particularly factor (c).
- On the other factors listed in section 19B(3) Mr Josse made the following specific submissions: first, he submitted (in relation to factor (d)) that the evidence needed to prove the extradition offence, in the form of witness statements and other documentary exhibits, must exist in Lithuania and could be made available in the UK. Mr Josse renewed his criticism of the CPSEU under this heading also, saying that it had not made enquiries of the police in the UK on whether they had gathered evidence in respect of the extradition offence. Secondly, on factor (e) Mr Josse criticised the DJ's conclusion that a trial in the UK would take "far longer" than one in Lithuania. He submitted that the position is that the pre-trial stages will only be complete if and when the appellant returned to Lithuania and only after that would a trial date be fixed. Therefore the DJ's conclusion was not consistent with the known facts. Thirdly, on factor (f) Mr Josse submitted that the DJ erred because he failed to take account of the desirability of trying the matter in the jurisdiction in which it was alleged that the appellant's criminal activity took place, viz the UK. Lastly, on factor (g), Mr Josse submitted that the DJ was wrong to take account of the fact of the appellant's Lithuanian background. He argued that this amounted to discrimination against a British citizen on the grounds of his ethnicity.
- Mr Summers' overall submission was that, in accordance with section 27(3) of the EA, this court could not interfere with the DJ's conclusion on the "forum bar" issue unless it concluded that the DJ should have decided that issue differently. That meant that this court would have to conclude that the judge should have decided that it was "not in the interests of justice" that the appellant should be extradited. Mr Summers submitted that the DJ had arrived at a value judgment on the issue and that this court was only entitled to conclude he should have decided the issue differently if it concluded that the DJ had committed a "public-law error". He characterised "public law errors" as being: a misinterpretation of the statutory wording or some relevant case law; failure to take account of a material consideration, taking into account an immaterial consideration, or reaching a perverse or irrational conclusion. In support of this submission he referred to the remarks of Beatson LJ in Dunham v Government of USA  EWHC 334 (Admin) at , in which Beatson LJ noted that the majority of the Supreme Court in Re B (A Child)(FC)  1 WLR 1911 had stated that an appellate court should treat the determination of the "proportionality" of an interference with a Convention right as an appellate exercise, that is one involving a review, not a fresh determination of either necessity or proportionality. Mr Summers submitted that the same approach applied to the value-judgment exercise undertaken by the DJ on a forum-bar issue.
- On the individual factors, Mr Summers submitted that the judge placed too much emphasis on the importance of Birmingham as the place where the "harm" resulted from the extradition offence. He accepted that, in factor (b) the word "interests" is not confined to where the victims reside. In relation to factor (c) there was no evidence of any belief by a domestic prosecutor about the appropriateness of the UK, so this was not a factor in the appellant's favour. On factor (d) Mr Summers accepted that the Lithuanian judicial authority had not been asked about the potential availability of evidence if the matter were to be prosecuted in the UK. In his submission the judge reached the right conclusions on the other factors in section 19B(3) and on the "interests of justice" test overall.
Conclusions on the Forum-Bar Issue.
- There are three general points that we should deal with at the outset. First, we accept Mr Summers' submission on the approach that this court should take when an appellant challenges the DJ's decision to reject a forum bar challenge to extradition advanced under section 19B. Section 26(3) of the EA stipulates that an appeal from an extradition order can be brought on a question of fact or law. But under section 27(3) of the EA this court can only allow an appeal if it concludes that "the appropriate judge" (viz the DJ) should have decided "a question before him" at the extradition hearing differently. The relevant "question" here is the overall value-judgment of the DJ that the extradition in this case would be in the interests of justice so that the "forum bar" should not operate. Therefore, under section 27(3), before the DJ's decision on this question can be reversed, this court has to conclude that he "ought to have decided" the forum bar question before him at the extradition hearing differently. On the assumption that this court has before it the same materials as the DJ, then, in our view, what is being challenged is the value-judgment that the DJ has made in deciding to reject the forum-bar argument of the defendant/appellant. The exercise that the DJ has to go through to reach a value-judgment on a forum-bar issue under section 19B(2) and (3) is, in this respect, very similar in kind to the exercise undertaken on a "proportionality" issue when it is established that extradition would interfere with the Article 8 rights of a requested person and/or his family.
- We therefore respectfully adopt the observation of Beatson LJ at  of Dunham v United States of America  EWHC 334 (Admin), in which there was a challenge to a "proportionality" decision of the "appropriate judge" made where it was said that the extradition to the USA would be a disproportionate interference with the requested person's Article 8 rights. Beatson LJ noted:
"In Re B (A Child) (FC)  UKSC 33 a majority of the Supreme Court held that an appellate court should treat the determination of the proportionality of an interference with the rights protected by the ECHR as an appellate exercise and not a fresh determination of necessity or proportionality, notwithstanding the duty of the court as a public body to consider human rights, see in particular -, - and . Lady Hale and Lord Kerr dissented ibid, at ,  and ."
In Re B(A Child) Lord Wilson JSC stated, at :
"Appellate courts must discharge their domestic duty under section 6(1) [of the Human Rights Act 1998]; but the manner in which they seek to do so is a matter for Parliament or for rules made under its authority. No one suggests, for example, that the appellate court should itself rehear all the evidence relevant to a Convention issue. On any view it will adopt much of the relevant material from the survey conducted by the trial judge. Civil appellate courts other than the Supreme Court operate in accordance with CPR r 52.11 , made pursuant to the Civil Procedure Act 1997. Paragraph (1) of the rule provides that
"every appeal will be limited to a review of the decision of the lower court unless … (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."
Such courts should in my view seek to discharge their duty under section 6 of the 1998 Act by determining a Convention issue in accordance with this paragraph."
- In our view, this court should adopt the same approach as that stipulated by Lord Wilson when there is a challenge to the conclusion of the "appropriate judge" on the value-judgment exercise he has carried out under section 19B(2) and (3) of the EA. Accordingly, this court should not, in our view, engage in an exercise of re-assessing all the factual issues or reassessing the weight to be given to the various factors set out in both section 19B(2) and (3), unless it is established that the judge at the extradition hearing: (1) misconstrued the statutory wording; (2) erred in respect of some applicable principle of law; (3) failed to take into account a relevant factor, or took into account an irrelevant factor; or (4) reached an irrational or perverse conclusion on the issue as a whole. Such a "review" approach is, in our view, consistent with the statutory wording of section 27(3) of the EA because the High Court can only allow an appeal if it concludes that the "appropriate judge" should have decided the question in issue differently; it cannot allow an appeal because the High Court takes a different view from the "appropriate judge" on how to weigh the different relevant factors that have to be considered.
- Different considerations may arise when there is an attempt to adduce "fresh evidence". That issue did not arise in this case.
- The second general point concerns section 19B(3), which, as we have already pointed out, only becomes relevant if the appropriate judge has concluded, pursuant to section 19B(2), that a "substantial measure" of the defendant's activity relating to the extradition offence was performed in the UK. The "appropriate judge" does have to "have regard" to all the identified factors in section 19B(3), but it is important to emphasise that this means that in relation to each one the judge has to ask, first of all, whether that particular factor is present on the facts of the case before him. On the assumption that the factor is present, the judge then has to weigh the relevant evidence and reach a conclusion in relation to that factor. But if the factor is not present, the only "regard" the judge can have to it is to note that it is not present on the facts of the case before him.
- The third general point concerns the construction of the statutory wording of factor (c): viz. "any belief" of a prosecutor that the UK or a particular part of it, is not the most appropriate jurisdiction in which to prosecute the requested person for the extradition offence. In our view, the use of the words "any belief of a prosecutor" is important. The "prosecutor" in question here is a domestic prosecutor, that is someone in the domestic CPS. Such a prosecutor may or may not have formed any such belief at the time of the extradition hearing. If none has been formed or expressed, the statutory wording does not require that any party or the court should demand that a prosecutor must then take steps to create a "belief" on the part of the prosecutor. The initiative to declare "a belief" or not lies with the domestic CPS. There is no statutory mechanism that enables the court to compel further investigation by the CPS so as to put it in a position to have a "belief". That view of the construction of this factor is consistent with the rule, applicable in extradition cases, that a decision by domestic authorities not to investigate whether there should be a criminal prosecution in the UK is not susceptible to judicial review except in wholly exceptional circumstances such as bad faith: R(Bermingham) v DPP  QB 207 at ; R(McKinnon) v Secretary of State for Home Affairs  EWHC 2021 at . The facts of this case, which we have outlined above, demonstrate clearly that there are no such exceptional circumstances present here.
- Our conclusion on the construction of section 19B(3)(c) is underlined by section 19B(5). By that provision the prosecutor can decide to apply to the court to be joined as a party to the extradition proceedings, in circumstances where the prosecutor wishes to put before the court information concerning the prosecutor's consideration of offences for which the requested person could be prosecuted in the UK in respect of conduct constituting the extradition offence. It should be noted that the test the court has to apply when deciding whether to join the prosecutor is whether the prosecutor "has considered the offences for which [the requested person] could be prosecuted [in the UK] in respect of the conduct constituting the extradition offences". In short it is a neutral test; the prosecutor does not have to have formed a conclusion or even a "belief" on the desirability of prosecution in the UK before he can be joined: he simply has to have considered the offences. If the prosecutor does not decide to apply to the court, neither the court nor the defendant can make the prosecutor do so. Moreover, there is no provision in the EA for such an application to be made by the prosecutor to an appellate court or for the appellate court to force any further investigations to be made.
- The result of all of this is, as a matter of construction of section 19B(3)(c), is that if the prosecutor does not declare a belief about the appropriateness of the UK and does not apply to be joined to the proceedings, then that is where the matter must rest.
- With those matters in mind, we can now consider whether, as Mr Josse submitted, the judge should have decided the "forum-bar" issue differently. In our judgment, the overall value judgment of the DJ was correct. The judge's implicit conclusion that a substantial measure of the appellant's activity which is material to the commission of the extradition offence alleged to have been performed by him took place in the UK must be correct. Therefore the "gateway" test in section 19B(2)(a) is satisfied.
- Dealing with the individual factors in section 19B(3), in the light of our previous analysis, we conclude that there is no material error of law by the judge, nor was there a failure to take into account relevant points or any consideration of irrelevant ones in relation to factors (a), (c), (d), (e) and (f). In relation to factor (b) (interests of the victims) the judge construed "interests" too narrowly if he intended to say that this paragraph was only concerned with the victims' convenience for giving evidence. However, this does not lead us to conclude that the balance of the value judgment taken overall is wrong. In relation to factor (g), the judge was correct to take account of the appellant's connections with Lithuania. The appellant's "connections with the United Kingdom" have to be examined in their context. Simply to note that a person is a UK citizen and has lived in the UK for many years and has a family here without noting his obvious connections with another jurisdiction and what those connections are could give a wholly false impression and lead to an erroneous overall value judgment.
- Accordingly, we dismiss the "forum – bar" appeal.
The Article 8 appeal.
- It is the appellant's contention that, having obtained British citizenship in August 2012 and lived in this country since 2004 together with his partner and their daughter now aged 8, extradition would amount to a disproportionate interference with his Article 8 rights. The Supreme Court has clarified the law in relation to Article 8 in the context of extradition cases in Norris v. Government of United States of America (No 2)  2 AC 487 and HH & ors v. Deputy Prosecutor of Genoa Italy & ors.  1 AC 338. The question is 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 and not a test: see HH at ,  and . There is a constant and weighty public interest in extradition. That public interest will always carry great weight but the weight to be attached to it in any case varies according to the nature and seriousness of the crimes involved.
- Mr Josse submitted that in balancing his personal circumstances and those of his family against the allegations, which are described as "not at the top end of the criminal calendar", an essential factor which the court can exceptionally consider is the appropriate forum for any trial. Were the appellant to be discharged from this extradition request it would be open to the investigative authorities and the CPS to bring a prosecution for the same criminality in this jurisdiction. It is said that this factor significantly undermines the usual public interest in extradition as there would be no escape from justice. The appellant relies upon the authority of R (Bermingham) v Director of the Serious Fraud Office  QB 727. In Bermingham the defendant was a United Kingdom national and his extradition was sought by the United States. The court acknowledged that there might be an instance in which the possibility of a trial in the UK could tip the balance of judgment in favour of a conclusion that the defendant's extradition would amount to a disproportionate interference with his Article 8 rights.
- In the subsequent case of Norris (No 2) v USA  2 AC 487, Lord Phillips PSC stated emphatically that extradition hearings should not become the occasion for a debate about the most convenient forum for criminal proceedings. He added that "rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in this jurisdiction be capable of tipping the scales against extradition in accordance with this country's treaty obligations" and the matter should not even be enquired into unless the scales were "finely balanced": see . The other members of the Supreme Court agreed on this issue. Now that links with the "UK forum" can be a specific bar to extradition, the scope for raising the argument, in the Article 8 context, that the requested person could be tried in the UK is reduced almost to vanishing point. In any event, in this case there is no good evidence to support a contention that a trial of the appellant in the UK is or ever was contemplated by the prosecuting authorities. They have had ample opportunity to consider and/or institute proceedings in the UK and there is no evidence to suggest that such a course has ever been contemplated.
- Approaching the balancing exercise required by Article 8, we note that the appellant is not the sole carer for his daughter. It is accepted that his surrender to Lithuania will cause the appellant, his partner and his daughter hardship but this is inevitable in all cases of extradition. The countervailing factors justifying interference are strong. The seriousness of the alleged offence is high, as it involves alleged sexual exploitation and involvement in large-scale cross-border prostitution over a period of 19 months. There is the "constant and weighty public interest" in extradition proceedings in that the United Kingdom should honour its treaty obligations to other countries and ensure that there are no safe havens to which suspects or convicts can flee. There has been no culpable delay on the part of the respondent.
- Forum is not capable of "tipping the scales" by reason of our conclusion on the "forum bar" issue above. Insofar as the court might be permitted to take into account, for Article 8 purposes, such matters that are not specifically identified in section 19B(3) such as location, nature or availability of defence evidence and witnesses, they are not powerful in this case. The appellant has adduced no evidence as to any potential defence difficulties posed by a trial in Lithuania, the country where he lived until 2004 and where his parents still reside.
- The DJ found that "given the obvious gravity of the allegation emphasised by its cross border nature I cannot see for a moment that an order for surrender is anything other than right. There is nothing disproportionate in enforcing the surrender Request set against the inevitable but proportionate disruption to Jaroslav Atraskevic and the (wholly innocent) partner and child." The judge made no error of law. He weighed the appropriate factors. He did not reach an irrational or perverse conclusion on proportionality. We entirely agree with his conclusion. We therefore reject this ground of appeal also.
The proposed Article 3/prison conditions/breach of assurance appeal
- Mr Josse informed the court that there had been two groups of extradition cases concerned with prison conditions in Lithuania. In one group of cases known as Alekseynas and others, it was being argued that extradition to Lithuania should be refused because the prison conditions there were so bad that to extradite a person there would amount to a breach of his Article 3 rights. In other group of cases, with which the appellant's case became conjoined, known as Joseph and others, the issue concerned assurances given by the Lithuanian Ministry of Justice between March and November 2013 regarding the detention of remand prisoners in Kaunas remand prison. Those assurances had been given as part of the Aleykseynas and others cases. The Alekseynas and others group of cases were heard by the Senior District Judge in August 2013 against the background of two particular factors. First, the Vice-Minister of Justice of Lithuania had noted, in correspondence with other Lithuanian officials in March 2013, that international organisations and Lithuanian national authorities had criticised the conditions in remand prisons in Lithuania, (our emphasis), particularly in relation to a problem of overcrowding. That led to correspondence between the Prosecutor's Office of the Republic of Lithuania and the Vice-Minister of Justice on the question of where individuals extradited from the UK should be held on remand pending any trial in Lithuania. The upshot of the correspondence was that the Vice-Minister gave an undertaking on behalf of the Ministry of Justice that persons extradited from the UK would be held in Kaunas remand prison (or the Kaunas Juvenile Remand prison if appropriate), until the end of detention or until transferred to correctional facilities to serve a sentence of imprisonment after conviction. The Vice-Minister further undertook not to withdraw this assurance without first giving notice to the CPS.
- The second background factor was that there had been two important judicial decisions concerning extradition to Lithuania and allegations about prison conditions in that country. The first decision was that of the Queen's Bench Division of Northern Ireland in Lithuania v Liam Campbell  NIQB 9, in which the court held that in the absence of any assurance by the Lithuanian authorities to the contrary, the extradition of Mr Campbell to Lukiskes remand prison in Lithuania would amount to a violation of his Article 3 rights. The second decision, which reached a similar conclusion, was that of the High Court of the Republic of Ireland in The Ministry of Justice v McGuigan  IEHC 216. All these matters are set out in much fuller detail in the judgment of Jay J on the appeal to this court of Aleksynas and others v The Ministry of Justice, Republic of Lithuania  EWHC 437 (Admin) ("Aleksynas") but there is no need to elaborate on them further here.
- In his decision in the cases of Aleksynas and others, given on 8 August 2013, the Senior District Judge held that the assurances given by Lithuania on where extradited persons would be held on remand would be adhered to, although he had some concerns about conditions when there were temporary transfers to police stations for detention during the "investigation process". In the Divisional Court, (Moses LJ and Jay J), where the case was heard on 14 February 2014, it was argued that further material had come to light which threw doubt on the validity of the assurances given by the Lithuanian authorities.
- The important conclusions of Jay J, who gave the principal judgment, with which Moses LJ agreed, are as set out in  to  and  to  of his judgment. The conclusions of Jay J are as follows: (1) the office of the Prosecutor General of Lithuania had taken firm steps to instruct all individuals under its control that all persons extradited to Lithuania from the UK, who were to be held in detention and who are the subject of the assurances referred to above, were not to be sent to either Lukiskes or Siauliai prison. Moreover, those institutions had been ordered not to accept detainees extradited from the UK who were subject to those assurances. (2) There was no evidence of any recent breach of the assurances in the light of those actions, once the initial problems of practical implication of them had been successfully addressed. (3) The assurances that had been given in relation to where and how those extradited from the UK would be retained on remand could therefore be relied upon. (4) The evidence in relation to "conviction prisons" fell a long way short of proving that there was a real risk of Article 3 violations if an extradited person were to be incarcerated in such prisons in Lithuania. (5) On the evidence there was no real risk of Article 3 violations in the event of persons extradited being detained in police stations in the districts of Kaunas and Alytus. Nor, on the evidence before the court, was there any such danger in relation to detention in police stations elsewhere in Lithuania.
- In short, this court rejected the assertions being made that extradition to Lithuania would be a breach of a requested person's Article 3 rights.
- Investigations by those representing the appellant suggested that if he were to be extradited, he might be detained in Lukiskes remand prison, contrary to the assurances that had been accepted in the Aleksynas group of cases. The present case was therefore conjoined with another group, called J and others, all of which had the common argument that prison conditions in Lithuania were so bad as to contravene Article 3 and so constituted a bar to extradition. The present case was subsequently severed from those cases because of the appellant's intention to argue the Forum Bar point, which was specific to this case. By the time of the extradition hearing of the present case, the cases in the Joseph and others group had fallen away in the light of the conclusions of the Divisional Court in Aleksynas.
- Hence, in the words of the DJ in  of his Ruling in the present case: "following Aleksynas and others  EWHC 437 (Admin) the prison condition/Article 3 ECHR challenge was expressly abandoned".
- Mr Josse now wishes to resurrect the point. The statutory basis for doing so is section 27(1) and (4) of the EA. Section 27(1) permits the High Court to allow an appeal by a defendant from the decision of the "appropriate judge" to order the extradition of a requested person to a Category 1 territory if the "conditions" in section 27(4) are satisfied. Section 27(4) stipulates:
"(4)The conditions are that –
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c)if he had decided the question in that way, he would have been required to order the person's discharge."
- The "fresh evidence" on which the appellant relies is an affidavit of Mr Arunas Gernys sworn on 23 October 2014 in support of an appeal in the case of Raimondas Baranauskas v The Prosecutor General's Office, Lithuania, which is pending. Mr Gernys had been arrested pursuant to an EAW on 31 May 2013. It appears that it was an "accusation" EAW. The alleged offences were ones of misappropriation of property of another; forging signatures of another and child neglect. Mr Gernys was surrendered to Lithuania following a "no issues" extradition hearing before DJ BaYne on 26 March 2014. Mr Gernys had abandoned the only ground of opposition to extradition that he had intended to raise, namely the Article 3/prison conditions ground. He did so on the basis that he would be the subject of an assurance that had been provided by the Lithuanian authorities that he would be remanded in the Kaunas remand prison during his detention prior to and during his trial for the extradition offences.
- Mr Gernys' affidavit states that he was first taken to Panevezys Arrest House and then to Siauliai Remand Prison and then to Birzai Arrest House, from where he was transported to the Birzai Region District Court for the trial hearings of his case. He was convicted and sentenced to a fine. He was released by the court on 6 June 2014 and he returned to the UK on 20 June 2014. Mr Gernys says that he was only kept in the Kaunas remand prison, the one identified in the assurance, for two weeks out of the entire time he was in Lithuania from 9 April 2014 to 20 June 2014.
- Mr Josse obviously accepted that he could only raise the Article 3/prison conditions issue if he can persuade this court that the point has some real prospect of success. He submitted that the evidence of Mr Gernys would not be the totality of the appellant's evidence on the matter. He submitted that there would have to be further investigation of the issue of whether there had been breaches of the Lithuanian authorities' assurances on where extradited persons would be kept in remand in Lithuania both in Mr Gernys' case and in other cases. Mr Josse recognised that the respondent would have the right to adduce further evidence. However, he submitted that the evidence of Mr Gernys was sufficient to raise a serious issue and that the proper course for this court to take was to adjourn the Article 3/prison conditions issue, in order that it could be investigated further by both sides so that further evidence could be adduced at a further hearing where argument could be concluded on the point.
- The situation in this case is not exactly the same as that which arose in Three Hungarian Judicial Authorities v Fenyvesi  EWHC 231 (Admin) ("Fenyvesi"). There the court was concerned with the question of whether proposed "fresh evidence" which the Judicial Authority wished to adduce would be "decisive" so as to result in the appeal being allowed, because, in the words of section 29(4) of the EA, that evidence was not available before the "appropriate judge" but would have resulted in that judge deciding the relevant question differently. In this case, Mr Josse does not attempt to go so far, as we understand it, because he contemplates further investigation and further "fresh evidence" from both sides.
- In our view, attempts to persuade the High Court to consider a point that was not taken below, indeed was expressly abandoned, must be firmly discouraged other than in the most exceptional circumstances. As Sir Anthony May noted at  of Fenyvesi, the Framework Decision 2002 on which the EA is based contemplated that EAWs would be dealt with and executed as a matter of urgency. Neither the Framework Decision of 2002 nor the EA itself contemplated the wholesale introduction of fresh evidence on appeal. The whole approach of the English courts, whether in civil or criminal cases, is that parties must adduce in full the evidence on which they rely at the "trial" at first instance. In Fenyvesi Sir Anthony May stated, and we would underline, that admitting evidence in the High Court that would require a full rehearing there must be regarded as "quite exceptional": see . Therefore, we have concluded that we could only contemplate taking the course that Mr Josse suggested if we are satisfied that the evidence of Mr Gernys is both genuinely "fresh" and is such as to throw very serious doubt on the factual basis for the conclusions of this court in Aleksynas.
- The starting point on the law on whether allegedly overcrowded or unsatisfactory prison conditions in an EU state constitutes a ground for refusing extradition to that state because of a "real risk" of a violation of Article 3, must be the principles laid down by this court in Krolik (and others) v Several Judicial Authorities in Poland  1 WLR 490. In summary, that case decided: (1) Member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary. (2) That "clear and cogent" evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment contrary to Article 3. (3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations. (4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state will have to be powerful and something approaching an "international consensus". These tests apply to EU states both in relation to prison overcrowding cases and cases involving other alleged shortcomings in prison conditions in EU states.
- It is clear from the judgment of this court in Aleksynas that in the case of all "conviction prisons" and all police detention centres in Lithuania this last test was not fulfilled. It might be arguable, on the basis of the court's reasoning in Aleksynas that the Article 3 threshold was reached as far as conditions generally are concerned in certain remand prisons in Lithuania other than Kaunas remand prison. But in Aleksynas this court was satisfied that the assurance that those extradited from the UK would be held in Kaunas remand prison was sufficient and reliable, such that there would be no real risk of a violation of Article 3 if the requested person was extradited to Lithuania on the basis of that assurance.
- Has that position been fundamentally altered by the evidence in Mr Gernys' affidavit? We are prepared to accept, for the sake of argument and without deciding the point, that the evidence of Mr Gernys was not "available" before the DJ. But, in our judgment his evidence plainly does not make any fundamental change to the factual position in Lithuanian prisons nor does it change matters regarding the reliability of the assurances that have been given by the Lithuanian authorities. First and foremost, there is nothing whatsoever in the affidavit about the conditions in which Mr Gernys was held at the Panevezys Arrest House, Birzai Arrest House and Siauliai Remand Prison. What would be needed is cogent evidence that conditions there were so bad as to raise an Article 3 issue. Such a situation cannot be assumed. Moreover, it is evident that prison conditions are not static. Cogent evidence of the present conditions in prisons is required, not just some reliance on a historic statement of conditions which may or may not remain true. Secondly, the periods involved in Mr Gernys case were short and there is nothing to indicate that he suffered in any way whilst detained in the various institutions mentioned in his affidavit. Thirdly, it is quite clear that the reason that he was held in those remand institutions was purely practical; so that he would be sufficiently close to be transported daily to the Birzai Region District Court where his case was being heard. There can be no question of bad faith on the part of the Lithuanian authorities. Fourthly, the affidavit is evidence of a single case of an inability (we do not think it fair to say "failure") to comply with the exact letter of the assurance that had been given. There is no evidence of any "systemic" failure to comply with assurances given. Therefore, in our view, the evidence of Mr Gernys fails to demonstrate, first, any case that there is either a systemic failure to comply with assurances or, secondly, that, in this individual case, the failure for short periods to comply with the exact letter of the assurance has given rise to Article 3 issues in relation to the conditions in the prisons in which Mr Gernys was detained.
- In the circumstances, we are not prepared to permit this point to be taken any further by the appellant. We trust that other courts faced with similar applications concerning Lithuanian prisons and assurances will take an equally robust approach.
- We therefore dismiss the appeal on both the grounds raised.
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