Guy Jane v Prosecutor General's Office, Lithuania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Dingemans |
| Judgment Date | 16 October 2018 |
| Neutral Citation | [2018] EWHC 2691 (Admin) |
| Docket Number | Case No: CO/5183/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 2018 |
[2018] EWHC 2691 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Dingemans
Case No: CO/5183/2017
Mark Summers QC and Mary Westcott (instructed by Dalton Holmes Gray Solicitors) for the Appellant
James Hines QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 27 th September 2018
Introduction
On 25 April 2018 Hickinbottom LJ and I sat as a Divisional Court, and heard an appeal against the Order of Deputy Senior District Judge Ikram (“the DSDJ”) dated 3 November 2017. The DSDJ had ordered that the Appellant Guy Jane (“Mr Jane”) should be extradited to Lithuania to face a trial for alleged criminal conduct. For the reasons contained in our judgments dated 15 May 2018 ( [2018] EWHC 1122 (Admin)), we found that: (1) there was a real risk that Mr Jane would be subjected to treatment contrary to the right in article 3 of the European Convention on Human Rights (“ECHR”) by reason of conditions in the Lukiskes remand prison, which the evidence showed was where he was likely to be held in custody on remand; (2) it was appropriate to give the Lithuanian authorities an opportunity to consider whether to provide an assurance sufficient to dispel the real risk of impermissible treatment. The appeal was stayed to give Lithuania an opportunity to provide suitable assurances.
After that judgment seven further assurances, in addition to assurances which had been provided in the course of the proceedings, were provided on behalf of the Prosecutor General's Office in Lithuania between 21 and 26 June 2018. It was submitted on behalf of Mr Jane, but disputed by the Prosecutor General's Office in Lithuania, that the assurances did not dispel the relevant risk. The matter was set down for hearing on 31 July 2018 but the parties were inadvertently notified that the hearing was for directions only. This meant that neither Mr Summers QC nor Mr Hines QC were available for the hearing, and it was necessary to adjourn the hearing until Thursday 27 September 2018. Following the adjournment on 31 July 2018 the Prosecutor General's Office in Lithuania provided a further assurance dated 7 August 2018, but there remained a dispute between the parties about whether the assurances were sufficient to dispel the real risk of impermissible treatment to Mr Jane.
The assurance dated 7 August 2018
It was common ground between the parties that the assurance dated 7 August 2018 was the relevant assurance, on the basis that, if that assurance did not dispel the real risk of impermissible treatment, then the seven earlier assurances would not do so. It was also common ground that the assurance dated 7 August 2018 needed to be considered in the light of all the relevant evidence and the previous assurances.
The assurance dated 7 August 2018 was given by the Prison Department of the Ministry of Justice of the Republic of Lithuania. It provides:
“The Director General of the Prison Department under the Ministry of Justice of the Republic of Lithuania hereby assures and guarantees that the below stated conditions will be applied to all persons surrendered to the Republic of Lithuania from the United Kingdom on the grounds of the European Arrest Warrant (“EAW”) for the purpose of a criminal prosecution or execution of a sentence of imprisonment during their detention.
1. All persons surrendered under an accusation warrant from the United Kingdom will be held in Kaunas Remand Prison, Lukiskes Remand Prison – Closed prison or Siauliai Remand Prison, whereby they will be guaranteed a minimum space allocation of no less than 3 square metres per person in compliance with article 3 of the European Convention on Human Rights.
2. Persons surrendered under a conviction warrant that may spend a maximum of 10 days at one of the remand centres set out in clause 1, will be subject to the same guarantees and will be housed in cells with a minimum space allocation of no less than 3 square metres per person in compliance with article 3 of the European Convention on Human Rights.
3. All persons held in Lukiskes Remand Prison – Closed Prison or Siauliai Remand Prison as per clause 1 and 2 above, will only be held in the refurbished or renovated parts of the prisons and in compliance with article 3 of the European Convention on Human Rights.”
Issues about the assurance
Mr Summers QC on behalf of Mr Jane submitted that the assurances were not sufficient because: (1) it was apparent that Lithuania considered that the conditions in Lukiskes were compliant with the ECHR, when the court had determined that there was a real risk of impermissible treatment; (2) that Mr Jane might be held in Siauliai where there was less evidence about the effect of the cell renovations; (3) that the assurance dated 7 August 2018 was vague and unspecific and given that the evidence showed that many cells had been renovated over a long period of time, remand in a renovated cell might still give rise to a real risk of impermissible treatment.
Mr Hines QC on behalf of the Prosecutor General's Office submitted that: (1) Lithuania had not ignored the judgment of this Court and had responded appropriately to the judgment and points taken on behalf of Mr Jane in relation to the seven assurances; (2) that Mr Jane was likely to be held in Lukiskes; (3) the assurance was sufficiently specific, that there was no proper criticism to be made about the renovated cells, and there was no real risk of impermissible treatment.
Further case law on assurances
The relevant principles applicable to proposed assurances in the extradition context were summarised in our earlier judgments, and it is not necessary to repeat them here. Since that date the Divisional Court has given judgment in Giese v Government of the United States of America [2018] EWHC 1480 (Admin); [2018] 4 WLR 103. At paragraph 38 Lord Burnett LCJ said “whilst there may be states whose assurances should be viewed through the lens of a technical analysis of the words used and suspicion that they will do everything possible to wriggle out of them, that is not appropriate when dealing with friendly foreign governments of states...
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