Buivis v Deputy Prosecutor General (Republic of Lithuania)

For an accusation European arrest warrant, proportionality under Extradition Act 2003, section 21A(1)(b), is reasonably arguable where domestic sentencing practice may provide a measure of the likely foreign penalty in the absence of specific information from the requesting state. The analysis may compare that likely penalty with qualifying remand time already served. If the remand period may have exhausted the likely custodial sentence, the point can justify permission to appeal, although the court granting permission need not determine the issue finally.

Article 8 may provide a further or alternative route where proportionality under section 21A(1)(b) is a near miss and family circumstances could affect the balance. Fresh evidence and the Article 8 issue may properly be left for the substantive appeal.

The appellant sought permission to appeal an extradition order made by District Judge Bouch on 2 March 2020. He was wanted by Lithuania under an accusation European arrest warrant concerning possession and alleged use of a forged driving licence. The proposed appeal relied on proportionality under section 21A(1)(b) of the Extradition Act 2003 and Article 8 of the Convention. An Article 3 prison-conditions ground had been abandoned.

The appellant also sought to adduce fresh evidence concerning family life and to extend his representation order for evidence about the likely Lithuanian penalty. The central issue was whether the proposed proportionality argument, including qualifying remand time of approximately four and a half months, was reasonably arguable.

1. Section 21A(1)(b). Permission to appeal was granted on the proportionality ground. The proposed argument had three stages: domestic sentencing practice could be used as a measure of likely penalty where the requesting state supplied no specific information; the likely penalty could be assessed by reference to relevant domestic cases; and, if qualifying remand time had already exceeded the likely custodial sentence, that could lead to success on proportionality. The court emphasised that it was deciding arguability, not the substantive appeal.
2. The Respondent accepted the first two stages for present purposes. Miraszewski supported using domestic sentencing as a measure of likelihood. Hoxha was accepted as directly comparable on the apparent custodial sentence. The court considered the distinction between a domestic sentence used as a proxy and the more confident assessment of foreign penalty in Kalinauskas, but held that the proposed analysis was plainly reasonably arguable.
3. The relevant remand period was four and a half months, excluding time served for other sentences. It was a completed period rather than continuing remand. The approach rejected in Molik, namely projecting forward while qualifying remand continued, therefore did not arise.
4. Permission was not granted at this stage on Article 8. That issue, together with the fresh evidence application, was adjourned to the substantive hearing. Article 8 could become material if the section 21A(1)(b) argument were a near miss and the position of the appellant’s partner and child might tip the balance. The court also left open whether the fresh evidence was capable of being decisive.
5. The application to extend the representation order for a Lithuanian sentencing report was refused. The existing authorities addressed the evidential vacuum concerning likely sentence, and further evidence was unnecessary and inappropriate at this stage. There was no order as to costs, subject to detailed assessment of publicly funded costs.

District Judge: District Judge Bouch ordered extradition on 2 March 2020.

High Court (Administrative Court): Permission to appeal was granted on the section 21A(1)(b) proportionality ground. The Article 8 permission question and fresh evidence application were adjourned to the substantive appeal. The application to extend the representation order was refused.