Palioniene v Prosecutor General's Office, Lithuania

In an extradition appeal, the court must assess present and prospective prison conditions, including any specific assurance given by the requesting state. A real risk of treatment contrary to article 3 may be avoided by a sufficiently specific and reliable assurance. Fresh evidence is subject to a strict test: it must have been unavailable at the extradition hearing and capable of producing a different result. Under article 8, the best interests of a child are a primary consideration, but the public interest in extradition remains weighty. The court must obtain sufficient information to decide whether extradition can proceed without causing serious harm to the child. This may require a requesting state to provide an assurance about pre-trial detention and arrangements for a sole carer and child.

The appellant appealed against an order for her extradition to Lithuania in relation to heroin possession and supply offences. She relied on alleged risks arising from Lithuanian prison conditions, her article 8 family life with her young son, the seriousness of the offending, and the finding that she was a fugitive. She also sought to adduce a medical report about heroin dosage and an addendum proof of evidence.

The central issues were whether the fresh evidence should be admitted, whether extradition created a real risk of treatment contrary to article 3, whether the offending and fugitive finding were properly assessed, and whether further information was required to determine the article 8 balance.

1. Article 3 and prison conditions. The assurance covering remand detention was sufficient. There was no evidence establishing a real risk of impermissible treatment for convicted female prisoners. Evidence concerning remand prisoners could not simply be extended to all convicted female prisoners. The objection under article 3 therefore failed.
2. Fresh evidence and seriousness. The alleged offences remained serious despite the small quantity of heroin. Supplying drugs into prison and street dealing in heroin involved significant risks of harm. The Swiss report did not assist in determining the appeal and was refused admission. The addendum proof was unsigned, did not comply with rule 50.20(6) of the Criminal Procedure Rules, and would not have affected the result.
3. Fugitive finding. The appellant knew of the criminal proceedings and left Lithuania despite that knowledge. The finding that she was a fugitive was properly made. An extradition court dealing with a category 1 territory is not generally required to resolve disputed factual issues of this kind.
4. Article 8 and the child’s interests. The lower court had correctly identified the competing factors. However, the social-services evidence showed that separation from the appellant would cause serious harm to her son and that remaining with her, including in a mother-and-child prison unit, might best serve his interests. The court therefore required better information before deciding the article 8 balance.
5. Order. Lithuania was given 42 days to provide an assurance that the appellant would not be detained before trial, could be detained with her son, or would not be detained without him for more than six months. The appeal was stayed pending further written submissions and any further hearing.

• High Court (Administrative Court): allowed the appeal to the limited extent necessary to obtain further information and an assurance concerning pre-trial detention and the appellant’s son; otherwise upheld the relevant findings. The appeal was stayed for 42 days.