Bernotas v Lithuanian Judicial Authority

An extradition assurance must be read in its full context. Where the requesting state is a party to the proceedings, an authoritative submission explaining the assurance may be taken into account if consistent with its text. A real risk of Article 3 ill-treatment is not established where the written assurance, read naturally and reinforced by the state’s express submission, excludes detention in the prison concerned. A material change in family circumstances requires the appellate court to conduct the Article 8 proportionality assessment afresh. The public interest in extradition may continue to outweigh the effects on a partner and child, particularly where the offence is serious, the sentence substantial and the person is a fugitive.

The appellant was wanted by Lithuania under a conviction warrant to serve a sentence for conspiracy to supply cannabis. A second accusation warrant concerned evasion of service of a sentence. Westminster Magistrates’ Court ordered extradition under the conviction warrant but discharged the appellant under the second warrant.

Permission to appeal was granted on limited Article 3 and Article 8 grounds. The Article 3 issue concerned whether Lithuanian assurances protected a person surrendered under a conviction warrant from detention at Šiauliai Remand Prison. The Article 8 issue arose from the subsequent birth of the appellant’s daughter and the effect of extradition on his family life.

1. Article 3. The appeal on Article 3 failed. The assurance of 3 April 2020 applied only to persons surrendered for criminal prosecution under accusation warrants. The later assurance of 8 February 2021 stated that the appellant would not serve his sentence at Šiauliai Remand Prison. Read as a whole, and in its natural meaning, that excluded serving any part of the sentence there.
2. An assurance from a foreign state may, depending on the procedural context, be construed objectively. In extradition proceedings the requesting authority is a party before the court. Its authoritative submission as to the meaning of an assurance may therefore be taken into account where it is not obviously inconsistent with the written text. The respondent’s express instruction that the appellant would spend no time at Šiauliai was consistent with, and reinforced, the written assurance. The court nevertheless approached that submission cautiously because an earlier interpretation advanced on behalf of Lithuania had been incorrect.
3. The appellant consequently failed to establish a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. The general presumption that an ECHR state will comply with its obligations, and the demanding evidential threshold for rebutting it, remained applicable.
4. Article 8. The appeal on Article 8 also failed. Because the appellant’s family circumstances had materially changed, the court conducted the proportionality assessment afresh, while proceeding on the factual findings below. The birth of the appellant’s daughter, his relationship with her and his partner, and the likely emotional and practical effects of separation weighed against extradition.
5. Those factors did not outweigh the public interest in extradition. Relevant considerations included the seriousness of supplying drugs, the substantial sentence, the appellant’s fugitive status, the international obligations engaged by extradition, and the fact that the offences were committed when he was young and his role was minor. Uncertainty about return to the United Kingdom after sentence did not materially alter the balance, since his ability to remain might also be affected by the conviction itself. The appeal was dismissed.

• High Court (Administrative Court): On appeal under section 26 of the Extradition Act 2003, the court dismissed the Article 3 and Article 8 grounds and upheld the extradition order under the conviction warrant.
• Westminster Magistrates’ Court: District Judge Mallon ordered extradition under the first warrant and discharged the appellant in respect of the second warrant on 29 January 2020.