AB v A Lithuanian Judicial Authority (Rev 1)

In an extradition appeal involving Article 8 family-life rights, proportionality requires assessment of the effect on the family unit as a whole. The court must balance the strong public interest in extradition against the impact on the requested person and family, including children’s welfare, mental health, care arrangements, delay and the likely period of separation.

Fresh evidence will justify appellate intervention only where it materially changes the evidential position and could require a different result. Unsubstantiated changes in a proposed carer’s position, or evidence which does not materially alter the original balancing exercise, will not do so. A realistic alternative of family life in the requesting state may be relevant to proportionality.

AB appealed under section 26 of the Extradition Act 2003 against District Judge Baraitser’s order of 8 February 2019 for her extradition to Lithuania on allegations of forgery, fraud and perverting the course of justice.

The sole issue was whether extradition was a disproportionate interference with AB’s private and family life, and that of her three children, under section 21A of the Act and Article 8 of the ECHR. The appeal also raised the admissibility and effect of fresh evidence concerning the children’s welfare, the proposed care arrangements, AB’s pregnancy and her mother’s health.

1. Appeal dismissed. Permission to appeal was granted because some fresh evidence was admitted, but the District Judge’s decision remained lawful and was not arguably wrong.
2. The proportionality assessment under section 21A of the Extradition Act 2003 required the competing interests to be balanced. The court had to consider the effect of extradition on the family unit as a whole, including AB, her mother and the children. The District Judge had properly considered the children’s welfare, the psychological evidence, AB’s mental health, the public interest in extradition and the proposed care arrangements.
3. The absence of delay and the similarity between AB’s circumstances at the time of the alleged offences and at the hearing were relevant considerations. The unknown length of separation was also relevant, although it could not significantly influence the decision because bail and sentencing were matters for Lithuania.
4. The fresh evidence did not materially undermine the finding that AB’s mother would care for the children. Her earlier evidence had been unequivocal and repeatedly confirmed. The later account of hip pain, financial difficulty and her relationship in King’s Lynn did not satisfactorily explain the change of position. The medical evidence showed a longstanding condition which had worsened, but did not establish that she could not care for the children.
5. The further evidence concerning B’s self-harm and the other children’s psychological welfare did not require a different outcome. The District Judge had carefully considered that evidence. The pregnancy created an additional option: while on bail in Lithuania, AB could potentially live there with the children. Section 3 of the Lithuanian Code of Penalty Execution also provided for a mother serving imprisonment to live with a child under three. There was therefore no realistic prospect that the children would necessarily enter local-authority care.

The District Judge would have reached the same conclusion if the fresh evidence had been before her. The appeal was dismissed.

• High Court (Administrative Court): District Judge Baraitser ordered AB’s extradition on 8 February 2019. Mr Justice Supperstone granted permission to appeal in light of fresh evidence but dismissed the appeal on 6 November 2019.