Neutral Citation Number: [2011] EWHC 710 (Admin)
Case No: CO/9061/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/03/2011

Before :

LORD JUSTICE JACKSON
MR JUSTICE CRANSTON
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Between :

	IVAN JANOVIC	Appellant	
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	PROSECUTOR GENERAL'S OFFICE LITHUANIA	Respondent	

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Ben Cooper (instructed by Sonn MacMillan Walker) for the Appellant
Ben Lloyd (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 10 March 2011
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Judgment

Mr Justice Cranston: 

Introduction
1.	This is an appeal under section 26 of the Extradition Act 2003 from a decision of the City of Westminster Magistrates’ Court that the appellant be extradited to Lithuania for a criminal prosecution.  The novel feature of the case is that the Lithuanian request is in relation to a rape that the appellant is alleged to have committed in Belarus in April 2000 and Belarus has transferred the case to Lithuania.  Lithuania, but not Belarus, has been designated a Part 1 territory under the Extradition Act 2003: Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003, 3333).   The appellant contends that the district judge ought to have found that the extradition proceedings pursuant to the European Arrest Warrant should be stayed as an abuse of process, that his extradition would not be compatible with Articles 3 and 6 of the European Convention on Human Rights (“the Convention” or “ECHR”), and that by reason of the passage of time it would be unjust or oppressive to extradite him.  The appellant also seeks to agitate before us an additional ground, that no extradition offence has been made out.    
Background
2.	The appellant is 32 years old.  He was born in the region of Minsk, Belarus, but on his account left when he was 16 years old to live with his mother in Lithuania, when his father remarried.  He has Lithuanian nationality but is a Russian, not a Lithuanian, speaker.  He describes his family as Roma.  He came to this country in 1999, overstayed his tourist visa, was removed to Lithuania but then returned here once Lithuania became a member of the European Union in 2004.  He married a Polish citizen, also a Roma, and has 2 young children, both British nationals.  
3.	On 27 October 2009, a district court in Lithuania issued a domestic warrant for the appellant’s arrest.  The European Arrest Warrant at issue in this appeal followed on 16 December 2009, certified by the Serious Organised Crime Agency on 6 January 2010.  In summary it explains that the appellant, a Lithuanian national, is wanted by the Lithuanian authorities to stand trial for an offence of rape alleged to have been committed in April 2000, when he was 21 years old, in the region of Minsk, Belarus; that criminal proceedings were initiated initially in Belarus; and that as a result of the appellant having left Belarus the criminal prosecution was transferred to Lithuania pursuant to a bilateral agreement between the two States.  
4.	At box (e) of the warrant the following information is provided in relation to the offence:
“During the night between 22 and 23 April 2000, in the region of Minsk, Byelorussian Republic, acting under influence of alcohol, acting under pre-agreement and in association with M Janovic, having used physical violence, Ivan Janovic dragged the victims, A Strelkova and J Kiricenko, going from the youth centre “Yunost” to the forest, in the direction of Zaslavski water storage, at the distance of 900 metres from the aforementioned youth centre, hit on victims’ various body parts with hands and legs, thus making bodily injuries which resulted in short term health impairment, and having neutralised their resistance, he and M Janovic in turn raped A Strelkova and J Kiricenko.”
The warrant then continues with an explanation of the criminal proceedings:
“Criminal proceedings against Ivan Janovic were initiated in the Byelorussian Republic.  As the suspect, the Lithuanian citizen, Ivan Janovic, departed to Lithuania, on the basis of bilateral agreement between the Republic of Lithuania and the Byelorussian Republic on legal assistance and legal relations in the civil, family and criminal cases, on 28 March 2005 criminal prosecution of the person in question for the above-mentioned criminal offence was transferred to the authorities of the Republic of Lithuania.”
The warrant sets out the offence of rape pursuant to article 149 of the Lithuanian Criminal Code.  The maximum sentence is 10 years.  
5.	Effectively there is no further information in the warrant.  However, the Lithuanian prosecutor has provided a chronology of events from the date of the alleged offence to the issue of the European Arrest Warrant.  It indicates that the victims gave statements and were forensically examined on 25 April 2000, two days after the alleged offences, but that in late June of that year the preliminary investigations were suspended due to a failure to identify suspects.  However, in August the following year the investigation was renewed when Milan Janovic made his “honest admission” to the offence and named what he described as his cousin, the appellant, as jointly responsible.  A warrant was issued but the appellant could not be found.  However, Milan Janovic was tried and convicted of rape in 2002, having being found sane some 3 months earlier, and sentenced to 8 years imprisonment.  In early 2005 the preliminary investigation was renewed.  The Lithuanian authorities indicated that the appellant lived in that country.  The municipality reported that the address at which he was registered in Lithuania had had no buildings standing for some time.  It also said that the appellant crossed the border often.  In March 2005 Belarus requested Lithuania to assume carriage of the case, which they did.  In 2009 the Lithuanian police indicated that the appellant was in the UK and ultimately the European Arrest Warrant was issued.  
6.	Further information is available about the criminal proceedings in Belarus in what is described as a “legal opinion/advice” prepared for the appellant by a lawyer in Lithuania.  She is Inga Abramaviciute, who has been practising law there since 2004.  She has had access to the evidence which was gathered in Belarus, which now forms the prosecution case in Lithuanian.  There is the written testimony of the two women during the pre-trial investigation and in court, what Milan Janovic said in his confession, during the pre-trial investigation and in court, and the medical evidence both about the women and Milan Janovic’s mental health.  From examining the papers Ms Abramaviciute explains that on 15 August 2001 Milan Janovic made his “sincere confession” to the police but it was not clear where and in what circumstances it was made.  She comments that “sincere confession” “is an action, which used to be the way in Lithuania [presumably, in the Soviet era], how operational officers legalize (sic) illegal interrogation by constraining and intimidation of the particular person”.  Ms Abramaviciute notes that the following day, 16 August, Milan Janovic, accompanied by his lawyer, was interrogated as a suspected person.  Milan Janovic described how he and his “brother”, the appellant, were inebriated and had sexual intercourse with the women, after beating them.  That same day one of the women identified Milan Janovic as one of the perpetrators.  On 9 October 2001 there was a psychiatric report that Milan Janovic suffered “mental retardation [imbeciles]”.  At the trial, Ms Abramaviciute records, Milan Janovic denied rape and said that he had confessed because the police had used violence.  Also at the trial one of the women said she was uncertain that the perpetrator of the rape was Milan Janovic and the other had nothing to say about who perpetrated it.  
7.	To complete the chronology, the appellant was arrested in this country on 20 February 2010, pursuant to the European Arrest Warrant.  There were a number of hearings before the City of Westminster Magistrates’ Court.  In response to some of the appellant’s points being advanced before that court the Lithuanian prosecutor wrote on 22 June 2010:  
“… [S]ince 1 May 2004, the Republic of Lithuania has been a Member State of the European Union, which conforms to the requirements of a Member State.  The Republic of Lithuania is a democracy of the rule of law.  The criminal laws of the Republic of Lithuania grant all guarantees to a suspected person, which are provided in the Convention for the Protection of Human Rights and Fundamental Freedoms.  This Convention was ratified in the Republic of Lithuania and came into force on 20 June 1995.”
On 20 August 2010 District Judge Wickham ordered the appellant’s extradition after rejecting submissions on his behalf, submissions which are echoed in the appeal before us.  
Expert evidence 
8.	Before the judge the appellant advanced a certain amount of what was described as expert evidence.  That evidence has been supplemented for the hearing in this court.  For the respondent Mr Lloyd, very fairly, was content for us to consider the material de bene esse given the circumstances.     
9.	I have already referred to the opinion/advice of Ms Abramaviciute, which was before the judge.  As well as assisting on the chronology, Ms Abramaviciute explains that the treaty under which the case was transferred from Belarus to Lithuania is dated 20 October 1992.  Under article 64 of that treaty there is no extradition between the two countries but a transfer of cases.  That is why this case was transferred, and why Belarus did not ask for the extradition of Ivan Janovic from Lithuania.  Ms Abramaviciute adds a comment about the prejudice Roma people face in Lithuania.  
10.	In the course of her legal advice/opinion, Ms Abramaviciute refers to how the trial of the appellant in Lithuania will proceed.  The opinions expressed there are supplemented by her further statements of 20 and 31 January of this year.  In essence she refers to the practical difficulties of getting witnesses before the Lithuanian court after such a long period of time.  Instead the court would probably read out their statements given at the pre-trial stage in Belarus.  Indeed in her 31 January statement she records that the prosecutor responsible for the case has told her that no inquiries had been made about the location of the two women victims; that no effort would be made to find out the location of any witnesses to interrogate them, or to investigate their availability; and that reliance would be placed at trial on the testimony given in Belarus.  The prosecutor’s practice, as related to Ms Abramaviciute, was not to request witnesses from abroad to attend trial.  Ms Abramaviciute also says that one of the women explained during Milan Janovic’s trial that she was now married and wanted no further involvement.  
11.	Ingrida Botyriene is another Lithuanian lawyer, from another law firm, whom the appellant has engaged.  Her statement of 31 January 2011 was not before the judge.  She explains that according to article 276 of the Lithuanian Criminal Procedure Code, which she exhibits, the evidence of the accused and of witnesses given previously to a pre-trial investigation judge, or during a trial, can be read at trial when the accused, a witness or the victim is dead or not available for “serious reasons”.  That a witness is abroad is usually treated as a serious reason justifying the absence of a witness from trial.  She gives an example from her own practice.  She thus opines that there is a real possibility that Ivan Janovic’s trial will be on documentary evidence alone.  In her view there will be difficulties in contesting the admissibility of the evidence gathered in Belarus and because of the time factor in obtaining evidence to support Ivan Janovic’s account.  
12.	Ms Botyriene exhibits a document “Right to a Fair Trial”, written by Dr Aurelijus Gutauskas, associate professor at the Mykolas Romeris University and head of the Criminal Justice Department at the Law Institute of Lithuania.  It offers criticism of the criminal justice process in Lithuania, including the heavy reliance on evidence collected at the pre-trial investigation rather than on what happens at trial.  Before the judge there was also a report by the Human Rights Monitoring Institute, “Human Rights in Lithuania 2007-2008: Overview” (Vilnius, 2009).  On the appellant’s behalf Mr Cooper has produced to us two reports on Belarus, one entitled “2009 Human Rights Report: Belarus” from the United States Department of State, the other, “Security; Peace and Order?  Violations in the Wake of Elections in Belarus”, from Amnesty International dated this year.  Both paint a grim picture of the situation in Belarus as regards human rights and civil liberties.   
13.	Regarding prison conditions in Lithuania, the judge had a report and supplementary report by Professor Rod Morgan, emeritus professor at the University of Bristol and, amongst his other appointments, formerly chairman of the Youth Justice Board for England and Wales and HM Chief Inspector of Probation for England and Wales.  Professor Morgan was a member of the delegation from the Council of Europe in February 2000 which prepared a report for the Council’s European Committee for the Prevention of Torture (“the CPT”), but not a member of the delegations in subsequent years when it was recommended that Lukiskes Remand Prison be closed.  He also visited Lukiskes Prison, Vilnius, in May 2010 for the purposes of giving evidence in a case before the Northern Ireland courts.  Contrary to the stance taken by the Lithuanian authorities, the director of that prison permitted Professor Morgan to see around the prison and was frank about the overcrowding which the CPT reports had highlighted.  Those reports had also identified inter-prisoner violence, because of the inadequate staffing levels.  In his report Professor Morgan says:   
“During that period [from 2000] it is clear that overall overcrowding at Lukiskes has diminished but that extreme overcrowding in some parts of the remand section of the prison had not diminished.  In 2008, the most recent evidence suggests, the CPT found some conditions the Committee considered “outrageous” and which could be said to amount to “inhuman or degrading” treatment.  I therefore conclude that were Ivan Janovic extradited to Lithuania, given that he would likely be held at Lukiskes Prison, he would likely experience custodial remand conditions amounting to inhuman or degrading treatment and there is also a significant risk that he might be the victim of inter-prisoner violence.”
In his supplementary report Professor Morgan says that although parts of the prison have been refurbished, the prison is more crowded now than in 2008 and 2009.  He reiterates his view about inhuman and degrading treatment and adds that the period of detention during police investigation and remand would probably be prolonged, possibly years.  
Abuse of process, extradition offences and Article 6 ECHR  
14.	On behalf of the appellant Mr Cooper submits that the Lithuanian prosecutor has no jurisdiction to request his extradition for an offence that is said to have taken place outside the territory of Lithuania.  Belarus began the investigation and is capable of requesting extradition from the United Kingdom if it chooses to do so but it has made no such request.  It is not the role of Lithuania to request the appellant’s extradition on behalf of Belarus.  Mr Cooper submits that it is unprecedented for one country to request extradition for an offence that occurred in a third party territory, where it was not in any way impacted by the offence.  Anyone in the prosecutor’s office in Lithuania applying their mind to the case would have concluded that the case should be tried in Belarus.  The treaty between Lithuania and Belarus provides no answer, not least because its text is unavailable.  If Belarus required extradition there would be additional protection for the appellant since it is not part of the European Union and it would need to demonstrate a prima facie case.  That would be essential given the nature of the evidence and delay.  
15.	Mr Cooper continues that if the appellant is to stand any chance of testing the prosecution case, and of obtaining a fair trial, it is essential that his trial takes place in Belarus where the offence took place and where the prosecution witnesses reside.  The failure to afford the appellant his right to be tried in the correct forum gives rise to a real risk of a flagrant denial of justice, such that extradition would be incompatible with his Article 6 rights.  Furthermore, the decision taken on forum in the context of this case is arbitrary and will give rise to an arbitrary deprivation of liberty.  As such extradition is incompatible with the appellant’s Convention right to due process and constitutes a manipulation of the extradition process.  
16.	The judge rejected these arguments.  Of the abuse of process argument, the judge noted that the Framework Decision on the European Arrest Warrant 2002/584/JHA (“the Framework Decision”) meant it could only be speculation to assume that actions taken by a Lithuanian prosecutor pursuant to an international agreement were taken in bad faith.  A defendant had to establish reasonable grounds to believe that any alleged conduct displaced the presumption of good faith and mutual recognition.  She said that there has been no proper application of the Tollman procedure.  (That was a reference to R (Government of the United States of America) v Bow Street Magistrates’ Court [2006] EWHC 2256 (Admin) [2007] 1 WLR 1157, where the court said that where it is alleged that there is an abuse of process in the extradition the first step is that the judge should insist on the abusive conduct being identified with particularity: [84]).  The judge added that the Extradition Act 2003 specifically contemplated States exercising extra territorial jurisdiction and that the warrant was compliant with section 64(5) of the Act.  
17.	In my view it cannot be said that the judge was wrong in these respects or that she ought to have decided these questions differently.  As to the abuse of process ground, there is a fundamental assumption that a requesting state is acting in good faith: Ahmad and Aswat v The Government of the United States of America [2007] EWHC 2927 (Admin); [2007] UKHRR 525, [101].   The judge correctly noted the Framework Decision, based on a presumption of good faith and mutual recognition in the operation in the system of European Arrest Warrants.  During his oral argument Mr Cooper disavowed any suggestion of bad faith on the part of the Lithuanian authorities.  
18.	Abuse of process in the extradition context is not confined to bad faith on the part of the requesting state.  However, there is no way that all potential abuse arguments at trial can be paraded before us since in the extradition context the trial proposed is in the requesting state and it is there that they should be canvassed: R (Kashamu) v Governor of Buxton Prison [2001] EWHC 980 (Admin); [2002] QB 887, [33], [37].  Abuse arguments which are open in this jurisdiction involve situations where the requesting state is manipulating or using the procedures in order to oppress or unfairly to prejudice a defendant: R (Government of the United States) v Bow Street Magistrates’ Court supra, [82].  In his reply Mr Cooper invoked this line of authority to challenge the appellant’s extradition.  
19.	But again I cannot see how the Lithuanian authorities are disentitled to request the appellant’s extradition on this or the related Convention ground of arbitrary detention.  The criminal proceedings are properly before the court in Lithuania.  The Lithuanian court has issued first, a domestic arrest warrant, and then a European Arrest Warrant, for trial of the appellant in Lithuania.  The appellant has not made out any material that in the present case the Lithuanian authorities have used the agreement with Belarus, the transfer, or the warrant manipulatively or in order to oppress or unfairly to prejudice the appellant.  To any suggestion that there has been an attempt to surmount the hurdles to a Belarus extradition from the United Kingdom, by transferring the case to Lithuania, I simply note the chronology – the appellant’s whereabouts in the United Kingdom were not known until 2009, the transfer of the case from Belarus to Lithuania having occurred four years previously.  
20.	The judge correctly recognised that the Extradition Act 2003 specifically contemplates requesting States exercising extra-territorial jurisdiction over offences.  She mentioned section 64(5).  Section 10(2) of the Extradition Act 2003 requires the judge to determine whether the offence specified in the Part 1 warrant is an extradition offence.  Extradition offence is defined in sections 64 and 65.  Section 64 applies to persons not sentenced for an offence and in relation to conduct of a person if he is accused in a category 1 territory of the commission of an offence constituted by the conduct.  Section 64(5) provides:
“The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 1 territory (however it is described in that law).”
21.	In the additional argument he advanced before us Mr Cooper contended that it is necessary to examine the conduct alleged against the appellant in Belarus and analyze whether it constitutes what is said to be the equivalent offence in the United Kingdom.  He invoked article 4(7)(b) of the Framework Decision, which allows for an executing judicial authority to refuse to execute the European Arrest Warrant where the warrant relates to offences which “have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offence when committed outside its territory.”  He then submitted that since rape is a crime which England and Wales would not be able to prosecute if it occurred outside England and Wales there was no extradition offence.
22.	Whatever the provisions of the Framework Decision, this court must apply the very clear provision of the Extradition Act 2003.  In circumstances where section 64(5) is applicable there is no requirement to examine whether the offence would be an extra-territorial offence in the United Kingdom.  Applying section 64(5) the conduct set out in the European Arrest Warrant, quoted earlier, constitutes an extradition offence: it was conduct which occurred outside the category 1 territory, in other words Belarus, and no part occurred in the UK; it would constitute an offence in the United Kingdom which carries a maximum sentence greater than 12 months’ imprisonment; and it is so punishable in the category 1 territory, Lithuania with, as we have seen, a maximum sentence of 10 years’ imprisonment.  
23.	Given that section 64(5) has such obvious purchase in this case, Mr Cooper changed tack before us and submitted that the lack of dual criminality, because a rape committed extraterritorially could not be prosecuted in England and Wales, meant that it was an abuse of process to give effect to the plain meaning of that section in the circumstances of this case.  For the reasons I have already given that submission gets nowhere: the assertion of extraterritorial jurisdiction by Lithuania in the appellant’s case cannot, without more, amount to an abuse of process.
24.	As to the appellant’s article 6 submission, there is a line of authority binding on us that to succeed in an extradition case a person must surmount a high hurdle.  In R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] AC 323, [24], that hurdle was characterised as the requirement to show the risk of suffering a flagrant denial of rights in the requesting state.  Although expressed in the context of a case involving the return of an unsuccessful asylum seeker, that high threshold is binding on us in extradition.  In EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; [2009] 1 AC 1198, Lord Bingham quoted with approval a passage from the Strasbourg jurisprudence (Mamalkolov and Askarov v Turkey [2005] 41 EHRR 494, 537), that while the Strasbourg court had not fully explained the use of the adjective “flagrant” it was clearly intended to impose a stringent test of unfairness going beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of article 6 if occurring within a contracting state itself: [34].  
25.	Moreover, Lithuania is a member of both the Council of Europe and the European Community.  As succinctly stated in obiter dictum in Gomes v Government of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038:
“[35] … Council of Europe countries in our view present no problem.  All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial – whether by an abuse of process jurisdiction like ours or in some other way.”
Membership of the Council of Europe is not, of course, a complete answer, as R (on the application of Bulla) v Secretary of State for the Home Department [2010] EWHC 3506 (Admin) demonstrates.  Where there are reliable reports that the authorities have resorted to, or tolerated, practices contrary to the principles of the Convention, membership is no answer: MSS v Belgium, ECHR, Grand Chamber, 21 January 2011.  When the Convention state is also a member of the European Union however, it will be “very difficult to show” as Ouseley J expressed it in Symeou v Public Prosecutors’ Office at the Court of Appeals, Patrus, Greece [2009] EWHC 897 (Admin); [2009] 1 WLR 2384, that there is a real risk of a total denial of article 6 rights: [66].  
26.	In my view the material relied upon by the appellant in this case does not raise the prospect of a real risk of a flagrant denial of the appellant’s article 6 rights.  As a signatory to the Convention, and a member of the European Union, Lithuania must be trusted to provide the appellant with a trial in compliance with article 6.  On the current state of the authorities, the possibility of the prosecutor relying on the written material from Belarus to prosecute the appellant cannot, without more, constitute an article 6 objection to his extradition.  In this regard the judge was correct.  
Article 3 and prison conditions
27.	Under this head Mr Cooper submitted that if the appellant is returned to Lithuania he will be detained on remand in prison conditions which are so bad as to be inhuman and degrading within Article 3 ECHR.  He relied on what he described as the compelling evidence of Professor Morgan which was both current and meets the legal test for specificity.  In Mr Cooper’s submission the judge erred in failing to recognise that the presumption that a European Union member state will afford a prisoner ECHR compatible conditions of detention is rebuttable.  The issue had to be assessed on the evidence.  Professor Morgan has an unrivalled reputation in his field and the judge was clearly impressed by his evidence.  He is highly qualified and experienced in assessing whether prison conditions meet ECHR standards.  His evidence was clear that the appellant would suffer inhuman and degrading conditions of detention, both pre-trial and post conviction.  There is on any view a real risk of imprisonment pre-trial and post conviction.  Given the delays pre-trial in Lithuania and the likely length of sentence, the duration of the inhumanity in issue would give rise to a violation of Article 3.  
28.	In her reasons for rejecting the Article 3 point, the judge noted that the major complaint about Lukiskes prison was of overcrowding and lack of space.  Having heard oral evidence from Professor Morgan, and having said that he was “a good witness, measured in his answers and without exaggeration”, she noted that there has been an improvement in Lukiskes prison and considerable attempts to modernise the old building to an appropriate standard.  The director of the prison was apparently frank and open to Professor Morgan as to its state.  The overcrowding was awful.  In condemning the potential surroundings of the appellant as being inhuman or degrading, however, Professor Morgan helpfully stated in evidence that he was not applying or using these words in the legal sense.  Therefore the judge noted that she “cannot infer from his evidence that the defendant’s extradition would breach his Article 3 rights”.  She referred to the decisions in Herdman v City of Westminster Magistrates’ Court [2010] EWHC 1533, [46], and Klimas v Prosecutor General’s Office of Lithuania [2010] EWHC 2076, [13].  
29.	The test to be applied in Article 3 cases is high: whether there are substantial grounds for believing that a person is at a real risk of serious ill-treatment.  Thus in Soering v UK [1989] 11 EHRR 439, an extradition case, the European Court of Human Rights held:
“[91] … [T]he decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country.”
30.	There are a number of cases when the European Court of Human Rights has held that prison conditions engage Article 3.  In Kalashnikov v Russia [2003] 36 EHRR 587 the court concluded that Article 3 was breached when a bank manager was held in cramped and unsanitary conditions on remand and post-conviction.  (The Court of Appeal applied Kalashnikov v Russia when considering an asylum seeker’s claim that his return to Russia, as an escaped convict, would lead the United Kingdom to breach Article 3: Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489).  In Orchowski v Poland [2009] ECHR 17885/04 the European Court of Human Rights referred to its previous jurisprudence, that violations of Article 3 had been found where detainees had at their disposal less than 3 square metres of personal space, where the overcrowding had been severe.  
31.	Perhaps more relevant in the context of the present appeal is Savenkoras v Lithuania [2008] ECHR 871/02, a claim by a Lithuanian of Belarusian origin that conditions in Lukiskes remand prison, where he was held for over a year, and in Rasu prison, also in Vilnius, breached Article 3.  The Strasbourg court set out the general principles at [77]-[79].  It then said of the overcrowding in Lukiskes remand prison:
“82. It is true that the appellant did not suffer any palpable trauma as a result of these conditions.  Nevertheless, the Court finds that they failed to respect basic human dignity and must therefore have been prejudicial to his physical and mental state.  Accordingly, it concludes that the severely overcrowded and unsanitary conditions of the applicant’s detention at the Lukiskes remand prison amounted to degrading treatment in breach of Article 3 of the Convention.”
32.	In her judgment ordering the appellant’s extradition, the judge referred to Herdman v City of Westminster Magistrates’ Court [2010] EWHC 1533.  That was a case where this court held that the poor conditions that were said to exist in Korydallos prison, Athens, were not such as to warrant a finding that the claimants’ extradition would be in breach of Article 3.  After a careful review of the authorities, Blair J analysed various reports on conditions in Greek prisons but held that they lacked the specificity to justify an Article 3 bar to extradition.  
33.	There are at least two decisions where extradition to Lithuania has been ordered despite claims that it would breach Article 3 because of prison conditions.  In Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032; [2006] 4 All ER 808 the appellant had spent time in a Lithuanian prison on conviction, had become an informer, but had given up that role and come to the United Kingdom after being attacked.  He was now sought for further offending.  There were reports about police brutality and inter-prisoner violence in prisons in Lithuania.  In this court Latham LJ (with whom Tugendhat J agreed) said that it was important that reports which identified breaches of human rights, or other reprehensible activities on the part of governments or public authorities, were kept in context.  The fact that human rights violations took place was not of itself evidence that a particular individual would be at risk of being subjected to them.  The material could go no further than raising a speculative, as opposed to a real risk of his being harmed in prison: [11].  
34.	In Klimas v Lithuania [2010] EWHC 2076 (Admin), which the judge mentioned, the appellant unsuccessfully invoked a recent report from the United States State Department, which drew on a CPT report, to conclude that prison conditions in Lithuania fell below international standards.  Applying an earlier decision of his, Jan Rot v District Court of Lublin, [2010] EWHC 1820 (Admin), Mitting J held that, as a matter of principle, where prison conditions in a Category 1 territory were raised as an obstacle to extradition, it was not necessary for the judge to examine that question, save in wholly extraordinary circumstances: [137].  In Targosinski v Judicial Authority of Poland [2011] EWHC 312 (Admin), Toulson LJ respectfully considered that that put the matter too high (at [8]).  For present purposes, the importance of Klimas is that in a passage the judge quoted. Mitting J held that, in any event there was all the difference in the world between suggesting that prison conditions in a state did not meet international standards and saying that an individual returned to spend time in such facilities would inevitably be subjected to ill-treatment of the kind which crossed the high threshold of Article 3, or even that there were substantial grounds for believing there was a real risk that the individual would be subjected to such treatment: [16].  Toulson LJ reached a similar conclusion in Targosinski: there was no cogent or satisfactory evidence in that case to demonstrate that the conditions criticised in Orchowski v Poland, supra, during the period up to May 2008 still obtained in Poland or that the appellant’s extradition would involve a contravention of his rights: [10].  See also MSS v Belgium, ECHR, Grand Chamber, 21 January 2011, [353].    
35.	In my view, the judge was correct that the appellant would not be at risk of suffering mistreatment sufficient to engage Article 3 of the Convention.  As I have explained the test to be applied to submissions pursuant to Article 3 of the Convention is high.  There is no doubt that Professor Morgan’s reports are deeply troubling.  His expertise is unrivalled and his standing world class. Professor Morgan states that, in his view, the conditions at Lukiskes prison could be described as “inhuman and degrading”.  However, the conditions he describes do not compare with the conditions as found by the European Court to have existed in the case of Kalashnikov.   In his evidence Professor Morgan accepted that he was not applying or using the words “inhuman and degrading” in the legal sense of the terms.  So his assertion that the prison conditions were inhuman and degrading did not mean that the appellant’s extradition to Lithuania would inevitably involve a breach of his Article 3 rights.  There is no evidence about how long the appellant will be on remand and detained in the conditions Professor Morgan describes at Lukiskes remand prison.  It is simply assumed that bail will not be available.  The Lithuanian authorities have confirmed in their 22 June 2010 letter that they are aware of their obligations pursuant to the Convention.  Given the assumptions we are obliged to make I cannot see that we can find that the Lithuanian authorities will not take steps to ensure that the appellant’s Convention rights are protected, both on remand or after conviction, should that follow.  Based on the extensive jurisprudence on Article 3 and evidence before the court about prison conditions in Lithuania, my view is that the judge was correct that the appellant would not be at risk of suffering mistreatment sufficient to engage the article.  
Passage of time  
36.	Two considerations arise in this regard, whether it is unjust and whether it is oppressive to extradite the appellant by reason of the delay.  Section 14 of the Extradition Act 2003 reads, as far as relevant:
“A person’s extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have 
(a) committed the extradition offence (where he is accused of its commission) …”
Eleven years have elapsed since the alleged offences, and there is no indication when a trial will take place should extradition occur.  It is common ground that the appellant was not notified of the criminal allegation until his arrest on the European Arrest Warrant, thus none of the delay is attributable to him.  
37.	In the appellant’s submission this delay, coupled with the decision to try the allegation of a crime committed in Belarus, not Lithuania, will cause, first, grave and irredeemable prejudice to him at trial and make it unjust to extradite him.  Secondly, given his personal circumstances it would also be oppressive to do so.  He has worked openly in the UK where he raised a young family for which he is now responsible.  He can legitimately claim to have been lulled into a false sense of security.  It would now be clearly oppressive to remove him from his wife and his young children to face inevitable lengthy pre-trial detention in Lithuania.  
38.	Regarding the passage of time argument, the judge said that she had not found that the appellant was “a particularly credible witness” and that he sought to distance himself from a serious allegation.  Before her he had raised alibi as a defence and told the court that, according to his father, Milan Janovic had been beaten up by the police and then put the blame on him.  The judge said this:
“I accept that a 10 year period between the date of the allegation and the extradition hearing is a long time, especially when presence at the scene of the activity is disputed.  I further accept that there is no evidence that [the appellant] was aware of the proceedings in Belarus.  He was, however, a frequent traveller between the two countries and giving an address that no longer existed indicates a desire not to be traced.  There is no evidence to show that Lithuania has been “inexcusably dilatory” in taking steps to bring the fugitive to justice.”
On the basis of Inga Abramaviciute’s report, it was submitted to the judge that since Milan Janovic was beaten by police, his evidence was tainted, that he will not be available in Lithuania and that the Belarus evidence was inadmissible.  The judge concluded that it was a misconceived assumption that Milan Janovic was the subject of violence.  And there was no evidence before the court that Milan Janovic was not available to testify in Lithuania.  Questions of admissibility, fairness and abuse of process were matters for the Lithuanian courts and must be argued there.  It would be neither unjust nor oppressive to extradite the appellant.  
39.	In relation to the terms “unjust” and “oppressive”, which were relevant as well in earlier legislation, Lord Diplock held in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 that:
“”Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to the hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair” (at 782H).  
Lord Diplock went on to decide that as regards delay which is not brought about by the acts of the accused himself, the question of where responsibility lies for the delay is not generally relevant and what matters is not so much the cause of such delay as its effect, “rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude”: 783C.  The burden of proof is on an appellant.  A requested person must show that, on the balance of probabilities, it would be unjust or oppressive to extradite by reason of the passage of time: Kociukow v District Court of Bialystok III Penal Division [2006] EWHC 56 (Admin).  
40.	In Gomes  v Government of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038, the House of Lords held that, although the test to be satisfied was not that of a risk of a flagrant denial of justice, such as would give rise to an article 6 bar, the test of establishing the likelihood of injustice was not easily satisfied.  That was because the extradition process is only available for returning suspects to friendly foreign states with whom this country has entered into multilateral or bilateral treaty obligations, involving mutually agreed and reciprocal commitments, and the strong public interest in respecting such treaty obligations in bringing to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad: [36].  
41.	Under section 14 of the Extradition Act 2003 it is not delay in itself which founds an objection to extradition, but delay which renders it unjust or oppressive to extradite the person.  Lapse of any particular period cannot, in itself, be objectionable for under the statute it is its bearing on injustice or oppression to the person which is determinative.  Even the passage of many years may be unobjectionable, if it will be neither unjust or oppressive for the person to face trial in the requesting state.  By contrast, there will be exceptional cases where the lapse of a relatively short period may be associated with features which make it unjust or oppressive to order extradition.  Kakis was such a case.  The focus of concern with the injustice aspect of section 14 will be mainly on how delay affects the risk of prejudice in the trial itself, but other factors may enter into view.
42.	In my view the statutory language directs the court to reach an overall judgment as to whether, given the risk of prejudice in the trial, and other factors, the passage of time makes it unjust to extradite.  The threshold is necessarily high.  We in this jurisdiction try persons for historic crimes and believe that we can guard against any prejudice which may result because of the delay.  That the United Kingdom has entered into an extradition arrangement with another state means that there is a confidence that its courts can do likewise.  That confidence is enhanced when the other state is a Convention state, more so if it is what the legislation describes as a Category 1 state, part of the European Arrest Warrant system.  So the bar is high, although not as high as demanding that the party establish the risk of a flagrant denial of justice.  And there is always the possibility that cogent evidence could put paid to the mutual respect which we will otherwise accord other states.  However elaborate their domestic laws, or their adherence to human rights instruments and membership of international bodies, what matters at the end of the day is their recognition of individual rights in practice.  
43.	It is convenient, first, to consider the contention that it would be oppressive to extradite the appellant, in particular that he has been lulled into a false sense of security, the fact is that he was never informed of the intention to prosecute him.  The judge found that the requesting authority has not been inexcusably dilatory in seeking the appellant’s extradition and I cannot dissent from that conclusion.  Clearly as regards his personal situation the appellant, and his wife and family in this country, will inevitably suffer hardship if he is extradited, but that does not mean that it would be oppressive for him to be extradited.  For these reasons I do not think that the judge was wrong.
44.	However, the judge’s conclusion that it would not be unjust by reason of the passage of time to extradite him requires closer analysis.  As with all his contentions for the respondent Mr Lloyd was concise and cogent: in his submission, the appellant is no worse off than he would have been had the trial taken place much earlier.  Any difficulties which the appellant faces as regards, say, the absence of witnesses would have been present five, even ten, years ago.  These matters are capable of being raised before the Lithuanian courts.  The prosecution, in Ms Botyriene’s report on Lithuanian criminal procedure, “could” rely on the witnesses’ written testimony from Belarus but that did not mean, submitted Mr Lloyd, that it would so rely.  Some of the objections in Ms Abramaviciute’s report to Lithuanian procedure would apply in this jurisdiction, such as the facility for reading witnesses’ evidence in some circumstances when they are no longer available, or for witnesses to refresh their memories from their previously prepared statements.  For the reasons already given in relation to the appellant’s article 6 claim, continued Mr Lloyd, we are bound to assume that any difficulties will be properly addressed given Lithuania’s obligations under the Convention, and as a member of the European Union, to accord due process to this appellant.  There is no basis for this court to conclude that it would be unjust by reason of the passage of time for the appellant to be extradited.  
45.	In my view the delay in this case is associated with a number of factors bearing on the injustice to the appellant if extradited.  Fundamental in this case is that in 2005, five years after the alleged offence, the case was transferred from Belarus to Lithuania.  We do not have a full picture of why or how this occurred.  We do know that Belarus sought the appellant in August 2001.  The appellant’s account is that he came to this country permanently in 2004, when Lithuania joined the European Union.  So it must have been prior to that the appellant was being recorded as passing back and forward across the border, under his own identity, between Belarus and Lithuania.  If that was after the alleged offence in April 2000, there was a possibility that he could have been apprehended and tried in Belarus.  But that did not occur and the case was transferred to Lithuania in 2005.  In my view the further delay has compounded his difficulties.  If his defence is alibi, there are the obvious bars with the delay to recalling the evening in question and finding witnesses.  A serious obstacle will be if potential witnesses are in Belarus, which is not a member of the European Union.  The likelihood of any relevant witness giving his or her evidence orally is reduced, since the alleged offence occurred outside Lithuania.  It will be recalled that it is common ground that there is no evidence that the appellant knew of the prosecution before being arrested in February 2010 under the European Arrest Warrant.  We do not know why it took the Lithuanian authorities over four years to discover the appellant’s presence in this country.  The fact is that in terms of alibi witnesses the appellant will be starting from scratch.  There are also the barriers to obtaining evidence from the other witnesses.  Assume the Lithuanian prosecutor applies successfully to have the Belarusian witnesses attend the hearing.  Lapse of time is unlikely to have enhanced Milan Janovic’s memory, given his learning difficulties, yet his was the only evidence directly implicating the appellant.  If one of the alleged victims was unwilling to be further involved at Milan Janovic’s trial, that reluctance is likely to have been reinforced by the lapse of time.  Likelihood of injustice through lapse of time is not easily established.  In the special circumstances of this case in my view the statutory test has been met.  
Conclusion
46.	As a result of the United Kingdom’s membership of the European Union we must give effect to the system of European Arrest Warrants.  We are obliged to accord other member states of the European Union a high degree of confidence that they will not abuse that system, that they will comply with the Article 6 fair trial rights contained in the European Convention on Human Rights, and that the conditions in prisons where those extradited are detained pending trial and if convicted, detained subsequently, will not constitute serious ill-treatment in breach of Article 3 of the Convention.  The thresholds if those the subject of a European Arrest Warrant are to resist extradition on these grounds are very high.  So, too, is the threshold which Parliament has provided for injustice caused by passage of time, albeit that it is not as onerous.  But in light of the circumstances of this case my view is that the appellant has met it.  If my Lord agrees the result is that the order for the appellant’s extradition is quashed and his discharge ordered.  
Lord Justice Jackson:
47.	I agree.