Zapalsksis v Prosecutor General's Office (Republic of Lithuania)

On a renewed application for permission to appeal in extradition proceedings, permission should be granted only for points which disclose a reasonably arguable, self-standing ground, or which properly link to an issue proceeding to a substantive hearing.

Fairness and effective case management justify deferring a point raised at the hearing where the respondent has not had a fair opportunity to address it. Article 3 prison-condition issues may require reconsideration where later assurances qualify or disapply earlier guarantees. Seriousness of the alleged offending may be relevant both to the Article 8 balance and to proportionality under section 21A of the Extradition Act 2003. Permission should not be used to reopen unarguable factual or legal complaints.

The appellant challenged an extradition order made by District Judge Snow on 8 January 2020 concerning accusation warrants for alleged thefts in Lithuania. The district judge rejected challenges under Articles 3 and 8 of the Convention and held extradition proportionate by reference to the seriousness of the alleged offending and likely penalty.

Permission to appeal was refused on the papers by Eady J. The renewed application raised prison-condition issues following April 2020 communications from the Lithuanian authorities, including a Covid-related qualification to earlier assurances, together with Article 8 and statutory proportionality arguments concerning the alleged offending. The central questions were which points were reasonably arguable and how they should proceed.

1. Disposition. The renewed application was partly granted and partly deferred. Permission to appeal was granted on limited Article 8 and section 21A seriousness and proportionality grounds. The Article 3 issue concerning the April 2020 communications and Covid caveat was adjourned to a rolled-up hearing linked with Gerulskis. Permission was refused on the remaining grounds.
2. Article 3. The April 2020 letters stated that the earlier August 2018 and July 2019 assurances would no longer be applied and supplied new assurances qualified by the Covid caveat. It was reasonably arguable that the qualification required reconsideration of whether extradition remained Article 3-compatible. The court also permitted linked consideration of the alleged breach of the earlier assurance in Jane’s case, because the breach could form part of the factual matrix. The alleged increase in prison occupancy, from about 80% to 84%, was insufficient by itself to justify reconsideration.
3. Article 8 and proportionality. It was reasonably arguable that the alleged offending had been wrongly characterised as serious for the Article 8 balancing exercise, applying the approach in H (H). It was also reasonably arguable that the district judge had applied section 21A(1)(b) and (3) incorrectly, including by failing expressly to address whether there were exceptional circumstances in a case involving minor theft, multiple counts and previous offending history. The reasoning might therefore require reconsideration.
4. The court held that the approach in Kalinauskas, concerning seriousness and time already served, was an arguable point which should be considered at the substantive hearing. Other challenges to factual findings, delay and the appellant’s alleged status as a fugitive disclosed no reasonably arguable ground.

• High Court (Administrative Court): District Judge Snow ordered extradition on 8 January 2020. Eady J refused permission to appeal on the papers on 16 March 2020. On renewal, the High Court granted permission on limited Article 8 and statutory proportionality grounds, deferred the linked Article 3 issue, and refused permission on the remaining grounds.