Jane v Prosecutor General's Office, Lithuania, Court of Appeal - Administrative Court, May 15, 2018, [2018] EWHC 1122 (Admin)

Resolution Date:May 15, 2018
Issuing Organization:Administrative Court
Actores:Jane v Prosecutor General's Office, Lithuania
 
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Neutral Citation Number: [2018] EWHC 1122 (Admin)

Case No: CO/5183/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/05/2018

Before:

LORD JUSTICE HICKINBOTTOM

and

MR JUSTICE DINGEMANS

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Between:

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Mark Summers QC and Mary Westcott (instructed by Dalton Holmes Gray Solicitors) for the Appellant

James Hines QC and Hannah Hinton (instructed by the Crown Prosecution Service) for the Respondent

Hearing date: 25th April 2018

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Mr Justice Dingemans:

Introduction

  1. This is the hearing of an appeal against the judgment of Deputy Senior District Judge Ikram (``the DSDJ'') dated 3 November 2017. The DSDJ had ordered that the Appellant Guy Jane (``Mr Jane'') should be extradited to Lithuania to face a trial for alleged criminal conduct.

    The alleged conduct

  2. The Prosecutor General's Office in Lithuania seeks the extradition of Mr Jane pursuant to an accusation warrant issued on 30 July 2015 certified by the National Crime Agency (``NCA''). It is alleged that between July 2010 and June 2011 Mr Jane, then a director and shareholder of a limited company, stole monies from the company, withdrew funds when the company was facing insolvency, fraudulently managed the company accounts, conspired with others to entice individuals to enter agreements with a sham company, produced forged documents and purported to transfer liabilities between companies. Mr Jane denies any wrongdoing.

    Judgment of the DSDJ

  3. The DSDJ identified when the passage of time would render it ``unjust or oppressive'' within the meaning of section 14 of the Extradition Act 2003 to extradite the requested person, referring to the principles set out in Kakis v Government of Cyprus [1978] 1 WLR 779 and Gomes v Government of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038. Those principles were not in dispute before the DSDJ or before this Court. The DSDJ noted that unjust was directed to prejudice for the requested person and oppressive was directed to hardship from changes in circumstances. The gravity of the offence was relevant to whether changes in circumstances would render a return to stand trial oppressive. The test would not be easily satisfied. The DSDJ noted that the allegations dated back to 2010-2011, involved a number of persons and defendants, and represented an organised fraud with a large number of victims. This meant that the allegations would take time to investigate. It was noted that Mr Jane could not be found and had been declared wanted in 2015. Taking all matters into account the DSDJ was not persuaded that it would be unjust or oppressive to extradite Mr Jane.

  4. In relation to the issue of threats of violence and prison conditions the DSDJ summarised the law relating to article 3 of the ECHR and recorded that Mr Jane needed to demonstrate substantial grounds to believe that he would face a real risk of being subjected to torture or inhuman or degrading treatment if surrendered. The DSDJ also noted that there was a strong presumption that member states of the Council of Europe are able and willing to fulfil their obligations under the ECHR. Clear, cogent and compelling evidence was required to rebut that presumption. The DSDJ recorded that the presumption was stronger still in the case of member states of the European Union.

  5. In relation to the threat of violence the DSDJ recorded that Mr Jane claimed that he was at risk from a non-state agent called Ashley White. The DSDJ noted alleged incidents in a car park, confirmed by Mr Jane's son, and an alleged threat at gun point. The DSDJ also recorded unchallenged evidence that Mr Jane's sister had been contacted by Mr White and received threatening phone calls demanding contact details. The DSDJ said that he had no reason to doubt what he was told and went on ``this was back in 2011 and nothing further has been heard from Mr White. I am not satisfied that the suggested risk to the RP [the requested person, i.e. Mr Jane] today exists. In any event, I have not been persuaded that, even if such a risk existed, the Lithuanian authorities could and would not provide reasonable protection to ensure the RP's safety''.

  6. In relation to prison conditions the DSDJ stated that ``I apply the test as to whether there is a `real risk' of the RP being subjected to article 3 ill treatment whilst being detained in Lithuania. The starting point in this case is that ... I can assume that they will comply with their obligations as per the Convention.'' The DSDJ noted the case of Rackauskas v Lithuanian Judicial Authority [2017] EWHC 1358 (Admin) and said that the High Court ``has taken the view that prison conditions in Lithuania do not offend article 3 and that is the case, even without any assurance''. The DSDJ referred to a case from Malta, which he said was fact specific, and a case from Germany, holding that ``the 2017 High Court decision here confirms that the English courts have not been persuaded of risks as regards article 3 on the evidence of conditions that now prevail in Lithuania''.

    Test for allowing an appeal

  7. It is established that when considering what approach to take to a challenge to a District Judge's findings about real risks of infringement of human rights the Court must have ``a very high respect for the findings of fact'', ``we must also have respect for the DJ's evaluation of the expert evidence'', and ``the decision of the DJ can only be successfully challenged if it is demonstrated that it is `wrong''', see United States of America v Giese (No.1) [2015] EWHC 2733 (Admin) at paragraph 15 and Dzgoev v Russian Federation [2017] EWHC 735 (Admin) at paragraphs 23 and 24. The respect for findings of fact made by judges at first instance is because those judges will have seen and heard the witnesses and will have assessed all of the evidence together, and because duplicating findings on facts increases costs and delay.

    Issues on appeal

  8. The issues on the appeal have been refined by Mr Summers QC and Mr Hines QC and I am grateful to them and their legal teams for their assistance. The following matters are in issue: (1) whether the DSDJ was wrong to find that it would not be oppressive or unjust, within the meaning of section 14 of the Extradition Act 2003, to extradite Mr Jane; (2) whether the DSDJ was wrong to find that there was no real risk that threats of violence made against Mr Jane would infringe his rights guaranteed by article 3 of the European Convention on Human Rights (``ECHR''); (3) whether the DSDJ was wrong to find that there was no real risk that remand prison conditions in Lithuania generally would infringe the rights of Mr Jane guaranteed by article 3 of the ECHR; (4) the position in the light of the further evidence adduced by both parties on appeal; and (5) whether, if on the available evidence the Court would find that extraditing Mr Jane would expose him to a real risk of inhuman and degrading treatment such that his extradition would breach the United Kingdom's obligations under article 3 of the ECHR, the appeal should be stayed to give the Lithuanian authorities an opportunity to provide an assurance that would satisfy us that Mr Jane will not be exposed to that risk.

  9. The main focus of the submissions to the Court was article 3 of the ECHR, which is addressed by issues (3) and (4). I can deal with issues (1) and (2) first, shortly, before turning to the article 3 issues (3) and (4).

    Issue 1 - DSDJ entitled to reject section 14 claim

  10. Mr Summers submitted that Mr Jane had been living openly in the UK, that there was no good reason for the delay, and that as his family life was unusual his domestic situation had changed. Mr Summers said that the allegations against Mr Jane required detailed consideration and it would be difficult for Mr...

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