Jane v Prosecutor General's Office, Lithuania

Where reliable material approaches an international consensus that a requesting state’s remand conditions expose prisoners to treatment contrary to article 3, the usual presumption of compliance is rebutted. The requesting state must then provide clear and cogent material showing that the general conditions have improved or that the requested person will avoid the risk.

A specific diplomatic assurance may dispel the risk and may first be considered on appeal. Loss of the presumption concerning the general prison estate does not necessarily remove the presumption that the state will honour a straightforward solemn assurance.

The appellant challenged a District Judge’s order for his extradition to Lithuania to face allegations of fraud and related criminal conduct. He relied on delay, threats from a non-state agent and the conditions in Lithuanian remand prisons.

The central issue was whether the District Judge had been wrong to find no real risk of treatment contrary to article 3 of the European Convention on Human Rights. The court also considered fresh evidence about Lithuanian prison conditions and whether Lithuania should be permitted to provide a specific assurance before the appeal was finally determined.

1. Appeal stayed. The District Judge had been entitled to reject the challenges based on delay and threats of violence. He had applied the accepted principles under section 14 of the Extradition Act 2003, considered the relevant circumstances and reached a conclusion that was not wrong. The evidence also permitted him to find that no present threat of violence existed and that Lithuania could provide reasonable protection.

2. The District Judge had been wrong about prison conditions. The authorities showed an international consensus that conditions in some Lithuanian remand prisons, particularly Lukiskes, created a real risk of treatment contrary to article 3. The ordinary presumption that Lithuania would comply with its Convention obligations was therefore rebutted. Lithuania bore the burden of providing clear and cogent material showing that the former assessment should no longer prevail, but had not discharged it.

3. Fresh evidence did not materially alter that conclusion. Lithuania had taken substantial and commendable steps to improve its remand estate, but the material did not eliminate the real risk. The decision in Rackauskas v Lithuanian Judicial Authority [2017] EWHC 1358 (Admin) established only that the requested person in that case would be detained at Kaunas. It did not establish that conditions at Lukiskes or Siauliai were generally compatible with article 3. A Kaunas assurance remained sufficient to avoid the identified risk.

4. A requesting state may dispel an established article 3 risk by giving an assurance concerning the requested person’s detention. Such an assurance is an issue rather than evidence for section 106(5)(a) of the Extradition Act 2003 and may therefore first be considered on appeal. Article 15(2) of the Framework Decision and the approach in Criminal proceedings against Aranyosi and Caldarau [2016] QB 921 required the executing authority to seek supplementary information and postpone surrender for a reasonable period where that information might eliminate the risk.

5. Hickinbottom LJ agreed. The loss of the general presumption of compliant prison conditions did not necessarily undermine the state’s reliability in honouring a specific and straightforward solemn assurance. That reliability depended on matters such as compliance with previous assurances and evidence of good faith.

6. The appeal was stayed for 42 days. Lithuania was permitted to notify the appellant and the court of any proposed assurance, after which the matter would be restored for final disposal.

1. High Court, Divisional Court: The appeal was stayed for 42 days to permit Lithuania to provide an assurance, with final disposal reserved.
2. Westminster Magistrates’ Court: Deputy Senior District Judge Ikram ordered the appellant’s extradition to Lithuania on 3 November 2017.