Varpiotas v Ministry of Justice of the Republic of Lithuania

In an extradition appeal based on article 8, the public interest in extradition carries substantial weight. It will ordinarily outweigh interference with family and private life unless the consequences are exceptionally severe. The court must assess proportionality on the particular facts, including the seriousness of the offence, the sentence sought to be enforced, delay, responsibility for that delay, and the nature and availability of family support. Ordinary difficulties in caring for an ill relative, or childcare arrangements which can be replaced by others, will rarely suffice. Fresh evidence may be admitted on appeal where the statutory conditions are met, but it must be shown capable of producing a different decision. The appeal was dismissed.

The appellant appealed against District Judge Coleman’s order of 30 January 2015 requiring his extradition to Lithuania under section 21(3) of the Extradition Act 2003. The warrant concerned the activation of an 18-month suspended sentence after the appellant breached conditions imposed by the Lithuanian court.

The appellant relied on article 8, alleging that extradition would interfere disproportionately with his family and private life. He cared for his mother, who had serious illnesses including recurrent lung cancer, and helped care for his eight-year-old niece. On appeal he also sought to rely on fresh medical evidence concerning his mother’s condition. The central issues were whether the fresh evidence could be considered and whether extradition remained proportionate.

1. Appeal dismissed. The district judge had applied the correct legal principles and reached a conclusion open to her on the evidence.
2. The court applied the principles in Norris v The Government of The United States of America (No 2) [2010] 2 WLR 572 and HH v Deputy Prosecutor of The Italian Republic [2013] 1 AC 338. There is no absolute rule that extradition is proportionate whenever article 8 is engaged, but the public interest is constant and weighty. The interference must be exceptionally serious before it can outweigh that interest. Relevant considerations include the seriousness of the offence, the sentence, delay, and the consequences for family life.
3. The offence was relatively serious because it was premeditated, involved exploiting a vulnerable person and abused trust. The appellant faced imprisonment because he had absconded and flagrantly breached the conditions of a suspended sentence. The delay was attributable to him. His previous offending also weakened the article 8 case.
4. The appellant’s relationship with his adult mother and sister did not ordinarily constitute family life under Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. Nevertheless, the respondent did not dispute that article 8 was engaged, and the court accepted that the relationships and living arrangements also fell within private life.
5. Fresh medical evidence about the mother’s recurrent cancer was considered under section 27(4) of the Extradition Act 2003. It did not satisfy the statutory test because it would not, and ought not to, have led the district judge to reach a different conclusion. The mother could receive support from the appellant’s sister, another daughter, social services, or family in Lithuania. The appellant’s care was important but replaceable, and the circumstances were difficult rather than exceptional.
6. The extradition order therefore remained proportionate. The decision was to become final after 14 days, with extradition to take place within the following ten days. The appellant was to remain on bail meanwhile.

• High Court (Administrative Court): District Judge Coleman ordered extradition on 30 January 2015. Lang J dismissed the appeal on 16 April 2015.