Victoria Stumbre v Prosecutor General’s Office (Lithuania)(No.2)

In an extradition appeal, the forum issue requires separate consideration of the statutory first-stage and second-stage tests. The “interests of justice” assessment must address all relevant statutory factors, and practicability of evidence is not necessarily a binary question. Victims’ interests extend beyond the narrow question of giving evidence at trial.

In an Article 8 assessment involving children, their best interests must be given proper weight. Countervailing factors may outweigh those interests, but must not diminish the weight attributed to the children’s interests themselves. Where the reasoning arguably diminishes that weight, and the case is sufficiently anxious, permission to appeal may properly be granted for a substantive hearing.

The appellant was wanted for extradition to Lithuania in respect of 36 alleged offences. Extradition had been ordered by District Judge Bristow on 21 September 2022. The appellant sought permission to appeal on forum under section 19B and on the basis that extradition would disproportionately interfere with the children’s rights under Article 8 of the ECHR.

The appellant also sought to raise a new Article 3 prison-conditions ground based on a recent CPT report. The central issues were whether the forum challenge was reasonably arguable and whether the Article 8 challenge, particularly concerning the children’s care, best interests and the weight given to those interests, warranted a substantive appeal.

1. Disposition. Permission to appeal was refused on the section 19B forum issue but granted on the Article 8 issue. The proposed new Article 3 ground was not admitted and no directions were made to introduce it.
2. Forum. The statutory first-stage question was whether a substantial measure of the appellant’s relevant activity was performed in the United Kingdom. Even if that stage were arguable, the second-stage “interests of justice” assessment favoured Lithuania. Relevant considerations included the place of loss and harm, the victims’ interests, delay associated with a United Kingdom prosecution, and the desirability and practicability of connected prosecutions taking place in one jurisdiction. The court rejected the submission that practicability operated invariably as an on/off switch incapable of involving questions of degree. Wyatt v USA [2019] EWHC 2978 (Admin) was understood as recognising that victims’ interests extend beyond the narrow compass of attending trial and giving evidence. USA v Osborne [2022] EWHC 35 (Admin) did not support the contrary binary approach.
3. Article 8. The children’s circumstances had materially worsened since the earlier extradition proceedings. The judge had accepted that extradition would probably result in local-authority care, possible separation of siblings, and serious or exceptionally serious lifelong consequences for the children. Although the judgment had referred to those consequences elsewhere, the statement that the weight of factors militating against extradition was “diminished” arguably conflicted with the guidance in HH [2012] UKSC 25, [2013] 1 AC 338. Countervailing considerations should be weighed on their own side of the balance, rather than by diminishing the weight given to the children’s best interests.
4. The omission of the possibility of prosecution in the United Kingdom from the Article 8 evaluation, and the overall anxious character of the case, also made the appeal reasonably arguable. The substantive court would have to determine whether extradition constituted a disproportionate interference with the children’s Article 8 rights in all the circumstances.

• District Judge Bristow: ordered extradition on 21 September 2022.
• High Court (Administrative Court): permission to appeal was initially refused on the papers by Sir Ross Cranston on 30 January 2023.
• High Court (Administrative Court): Mr Justice Fordham granted permission in part on 14 March 2023, limited to the Article 8 issues.