Sutas v Republic of Lithuania

Under section 21A(3)(c) of the Extradition Act 2003, mutual legal assistance is not a less coercive measure to be assessed within the statutory proportionality exercise. Its proper route in extradition proceedings is section 21B. The court must assess the possibility of less coercive measures on the facts available at the extradition hearing. That possibility is only one of three specified factors, alongside the seriousness of the alleged conduct and the likely penalty. On an appeal concerning Article 8 proportionality, the question is whether the first-instance decision was wrong. Errors or omissions in reasoning do not by themselves establish that the proportionality outcome was wrong.

The appellant challenged an order by Deputy Senior District Judge Arbuthnot requiring his extradition to Lithuania to face an accusation of theft. He argued that extradition was disproportionate under section 21A of the Extradition Act 2003, because he could have been interviewed through mutual legal assistance or another less coercive measure. He also argued that extradition was incompatible with Article 8 because of risks to him and his family, including their involvement as witnesses in domestic criminal proceedings concerning an attack on his wife.

The appeal concerned the meaning of “less coercive measures” and the proper appellate approach to the Article 8 assessment.

1. Appeal dismissed. The court upheld the extradition order.
2. Mutual legal assistance could not properly be treated as a less coercive measure under section 21A(3)(c) of the Extradition Act 2003. The decision in Puceviciene v Lithuania [2016] EWHC 1862 (Admin) showed that section 21B was the statutory route for using mutual legal assistance to advance the criminal process through an interview before extradition.
3. The District Judge was nevertheless required to assess the possibility of less coercive measures on the information available at the hearing. By that date, Lithuania had withdrawn its consent to the proposed interview and there was no realistic prospect of another measure being taken. The District Judge was therefore entitled to conclude that extradition was not disproportionate.
4. The seriousness of the alleged theft and the likely custodial penalty independently pointed towards extradition. Even if mutual legal assistance had been available, it was highly unlikely to have caused the Lithuanian authorities to abandon the proceedings. The statutory proportionality conclusion would therefore still have been justified.
5. The appellate approach to Article 8 proportionality was governed by Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin). The question was whether the District Judge’s decision was wrong, with appropriate respect given to findings of fact. Errors or omissions in the reasons did not themselves establish that the outcome was wrong.
6. The District Judge was entitled to find that the appellant knew of the Lithuanian proceedings, had considered the evidence concerning his family’s proposed involvement in the domestic trial, and had not been shown by supporting evidence to have the wider role in police investigations that he asserted. The subsequent guilty plea in the domestic trial also meant that the family’s need to give evidence could not properly affect a fresh Article 8 assessment.
7. The District Judge’s decision was clear, comprehensive and plainly correct. The appeal therefore failed.

• High Court (Administrative Court): appeal under section 26 of the Extradition Act 2003 dismissed; the extradition order was upheld.
• Westminster Magistrates’ Court: Deputy Senior District Judge Arbuthnot ordered extradition on 9 September 2016.