AIVARAS TOMKEVICIUS v KAUNAS REGIONAL COURT

In an extradition appeal, an appellate court should respect unimpeachable factual findings made by the first-instance judge after hearing oral evidence and assessing credibility. A person who knowingly leaves a country after being served with an operative custodial sentence, while failing to comply with an obligation to provide an address, may properly be treated as a fugitive. The high threshold of oppression under section 14 of the Extradition Act 2003 is distinct from the broader proportionality assessment under Article 8 ECHR. Delay and its consequences may inform that balancing exercise, even where the requested person is a fugitive. The assessment remains intensely fact-specific. Further information may be admitted on an extradition appeal where it responds to a specific issue raised at the permission stage and admission is in the interests of justice.

The appellant appealed against an order for his extradition to Lithuania to serve almost all of a two-and-a-half-year custodial sentence imposed following convictions for fraud, theft and squandering. The extradition judge had rejected challenges based on passage of time, Article 8 ECHR and the certainty of the sentence identified in the European Arrest Warrant.

The appellant argued that he was not a fugitive, that extradition would be oppressive because of delay, that extradition would be disproportionate having regard to his family and business circumstances, and that changes in Lithuanian sentencing law made the sentence uncertain. He also sought permission to add an Article 3 ECHR prison-conditions ground, pending related litigation.

1. Appeal dismissed. The judge’s findings that the appellant had attended the Lithuanian appeal hearing, had been personally served with the dismissal and operative custodial sentence, had knowingly returned to the United Kingdom, and had failed to notify the relevant authorities of his address were unimpeachable. Those findings amply supported the conclusion that he was a fugitive. The appellate court could not substitute the appellant’s rejected account for the first-instance findings.
2. Section 14 of the Extradition Act 2003 requires the high threshold of injustice or oppression by reason of the passage of time. The appellant’s fugitivity was fatal to the statutory argument. In any event, even if he had not been a fugitive, the effects of delay and extradition would not have crossed that threshold.
3. Delay and its consequences were relevant to the Article 8 proportionality balance, notwithstanding fugitivity. The judge had undertaken a conscientious balance-sheet assessment, giving substantial weight to the son’s interests and recognising family hardship, business consequences, good character in the United Kingdom and delay. Those factors did not outweigh the strong public interest in extradition, including compliance with international obligations, preventing the United Kingdom becoming a safe haven, the seriousness of the offences and the appellant’s fugitive status. There was no material error in the judge’s evaluative conclusion.
4. The reasoning in Juszczak concerning unacceptable delay was fact-specific. It concerned circumstances in which the requested person’s whereabouts were known. There was no inconsistency with the observation in RT that authorities cannot generally be expected to discover a person whose whereabouts are unknown.
5. The further information explaining that Lithuanian sentencing-law changes did not reduce or replace the appellant’s sentence was admissible. It answered a specific concern raised at the permission stage and its admission was in the interests of justice. The answer was clear and emphatic, satisfying the challenge under section 2 of the Extradition Act 2003.
6. The application for permission to amend the appeal to raise the Article 3 prison-conditions issue was stayed pending judgment in Besan and Bazys. The appellant was required to notify the court within seven days of that judgment whether the application was maintained.

The appellant appealed to the High Court against the extradition order made by District Judge Griffiths on 18 September 2020. Permission to appeal was granted by Lane J on 20 May 2021. The High Court dismissed the three permitted grounds and stayed the proposed Article 3 ECHR ground.