Atraskevic v Prosecutor General's Office, Republic of Lithuania

For a Category 1 extradition, the forum bar under section 19B of the Extradition Act 2003 has a statutory gateway: a substantial measure of the requested person's relevant activity must have been performed in the United Kingdom. If the gateway is satisfied, the judge must consider the specified interests-of-justice matters, assess their weight and make an overall value judgment. On appeal, the High Court reviews for legal or public-law error and does not reweigh the factors. In an Article 8 challenge, the possibility of a domestic trial will rarely affect the result. A fresh Article 3 prison-conditions point, particularly one abandoned below, requires exceptional justification and cogent evidence of a real risk.

This statutory appeal challenged District Judge Purdy's order of 5 August 2014 directing surrender under a European Arrest Warrant issued by the Lithuanian judicial authority. The appellant argued that extradition was barred by forum, disproportionate under Article 8, and potentially contrary to Article 3 because of Lithuanian prison conditions. He also sought leave to rely on fresh evidence concerning alleged breaches of assurances about detention. The central issues were the construction and appellate review of the statutory forum bar, the relevance of a possible United Kingdom prosecution to Article 8 proportionality, and whether the fresh evidence justified reopening the abandoned Article 3 issue.

The court dismissed the appeal on the forum-bar and Article 8 grounds and refused to permit the abandoned Article 3 prison-conditions issue to proceed further.

1. Forum bar. Section 19B required a two-stage inquiry. The first question was whether a substantial measure of the appellant's relevant activity, meaning activity material to the alleged offence, had been performed in the United Kingdom. That gateway was satisfied. The judge then had to have regard to the matters specified in section 19B(3), and only those matters, subject to the disclosure consideration in section 19B(4). Each factor had to be considered on the evidence, but the statute prescribed no ranking. The ultimate decision was an overall value judgment in the interests of justice. This approach was consistent with Dibden v Tribunal de Grande Instance de Lille, France [2014] EWHC 3074 (Admin).
2. Appeal standard. Under sections 26 and 27, the High Court was conducting a review rather than a fresh assessment of the forum-bar value judgment. Intervention was justified for statutory misinterpretation, an error of legal principle, failure to consider a relevant factor, consideration of an irrelevant factor, or an irrational or perverse conclusion. The court adopted the approach in Dunham v Government of USA [2014] EWHC 334 (Admin), drawing on Re B (A Child) (FC) [2013] UKSC 33.
3. Statutory factors. The District Judge had made no material error in relation to the place of harm, evidence, delay or the desirability of a single jurisdiction. The interests of the victims had been construed too narrowly if treated as limited to convenience in giving evidence, but that error did not alter the overall balance. The appellant's United Kingdom connections had to be assessed in context, including his obvious connections with Lithuania. The absence of a domestic prosecutor's belief that the United Kingdom was the appropriate forum did not empower the court to compel further CPS investigation or participation.
4. Article 8. The court balanced the interference with private and family life against the public interest in extradition. Exceptionality was a prediction, not a legal test. The public interest was constant and weighty, although its weight varied with the seriousness of the alleged offences. The possibility of a United Kingdom trial had little relevance here. In light of Norris v Government of United States of America (No 2) [2010] 2 AC 487, such an argument should rarely be investigated unless the Article 8 balance was finely poised. The alleged cross-border sexual exploitation was serious, and the interference was proportionate.
5. Fresh Article 3 issue. An attempt to revive a point expressly abandoned below was to be firmly discouraged. Fresh evidence requiring a full rehearing was permissible only in exceptional circumstances. The evidence had to be genuinely fresh and capable of throwing very serious doubt on the factual basis of the earlier conclusions in Aleksynas and others v The Ministry of Justice, Republic of Lithuania [2014] EWHC 437 (Admin). The affidavit showed one practical departure from the detention assurance but gave no evidence of the conditions in the relevant institutions, systemic non-compliance, bad faith or an Article 3 risk. The requirements identified in Krolik (and others) v Several Judicial Authorities in Poland [2013] 1 WLR 490 were not met.

• District Judge Zani—on 23 July 2013 held that the requirements of dual criminality were met.
• District Judge Purdy—on 5 August 2014 ordered surrender under the European Arrest Warrant and rejected the forum-bar challenge.
• High Court (Administrative Court)—dismissed the appeal and refused to permit the abandoned Article 3 prison-conditions issue to be pursued further.