Jalena Palioniene v Prosecutor General's Office, Lithuania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] EWHC 944 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3903/2018 |
| Date | 12 April 2019 |
[2019] EWHC 944 (Admin)
Mr Justice Dingemans
Case No: CO/3903/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Malcolm Hawkes (instructed by Goodall Barnett James Solicitors) for the Appellant
Hannah Hinton (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 28 March 2019
Approved Judgment
Introduction
This is the hearing of an appeal against the decision of District Judge (Magistrates' Court) Rebecca Crane (“the judge”) dated 1 October 2018 to order the extradition of the Appellant Jalena Palioniene (“Ms Palioniene”) to Lithuania in relation to the possession and supply of heroin. The extradition is sought by Deputy Prosecutor General's Office, Lithuania as issuing judicial authority (“the Prosecutor General's Office”) pursuant to a European Arrest Warrant (“EAW”) issued on 8 June 2015 and certified by the National Crime Agency on 24 June 2015.
Ms Palioniene contends that her appeal should be allowed and her discharge ordered because first there is a real risk of impermissible treatment by reason of the prison conditions in Lithuania contrary to article 3 of the European Convention on Human Rights (“ECHR”). Secondly Ms Palioniene contends that extradition would infringe her rights protected by article 8 of the ECHR. Ms Palioniene relies on the facts that: she is the sole carer for her son who was born in June 2017; the offending was not serious; and the judge had failed to make proper findings about why Ms Palioniene had left Lithuania so that the finding that she was a fugitive cannot stand.
The Prosecutor General's Office contends first that there is no real risk of impermissible treatment because an acceptable assurance has been given in respect of remand prison conditions and there is no evidence that the prison conditions for female prisoners after conviction pose any relevant risk of impermissible treatment. The Prosecutor General's Office contends secondly that extradition is a permissible interference with Ms Palioniene's article 8 ECHR rights. One of the offences involved a supply of heroin to prison and Ms Palioniene deliberately left Lithuania in breach of her bail conditions and was a fugitive. Proper arrangements for the care of Ms Palioniene's son will be made by social services.
Issues on appeal
The issues were further refined in submissions at the hearing by Mr Hawkes on behalf of Ms Palioniene and Ms Hinton on behalf of the Prosecutor General's Office and I am grateful to them for their assistance. I must therefore consider whether: (1) whether there is a real risk of impermissible treatment of Ms Palioniene in the prison conditions in which she will be held contrary to article 3 of the ECHR; (2) whether further evidence in relation to the seriousness of the offences ought to be admitted as fresh evidence and whether the offending was serious; (3) whether an addendum proof of evidence ought to be admitted as fresh evidence and whether the finding that Ms Palioniene was a fugitive was properly made; (4) whether extradition would involve an impermissible interference with Ms Palioniene's article 8 rights; and (5) whether an assurance or further information should be obtained from Lithuania in relation to the arrangements for Ms Palioniene and her son pending any trial.
Relevant factual background
I have taken the relevant background from the facts found by the judge as set out in the judgment and the terms of the EAW.
The EAW related to 4 offences. One of the offences was for the alleged possession of methadone which it was common ground did not amount to an extradition offence (because the maximum sentence was 45 days imprisonment) and Ms Palioniene was discharged in respect of that offence.
The other offences related to heroin. The first offence alleged that on a date no later than 18 June 2012 Ms Palioniene put 0.025g of heroin under a postage stamp on an envelope which was sent to a prisoner in Marijampole prison. The second and third offences related to 5 November 2012. Ms Palioniene was alleged to have purchased a white powder from a named person which was “not less than 1.2106g of powder containing 0.230g of heroin” of which she consumed part and sold part to others and “the remaining quantity – not less than 1.2106 g containing 0.230g of heroin was given” to Tatjana Rungo.
The EAW referred, among other offences, to article 260 which was headed “Unlawful possession of narcotic or psychotropic substances for the purpose of distribution thereof or unlawful possession of a large quantity of narcotic or psychotropic substances”.
Ms Palioniene was in detention from 6 to 8 November 2012 and she was served with the notification of suspicion on 7 November 2012 and 23 October 2013. Ms Palioniene was interviewed on 7 and 8 November 2012 and 25 October 2013 by the pre-trial officer or judge.
The EAW stated that Ms Palioniene then hid from pre-trial investigations and a search was announced. It appears that Ms Palioniene left Lithuania in about October 2013 and came to the United Kingdom. The date of departure must have been after the further interview on 25 October 2013. The judge found that Ms Palioniene was a fugitive.
Ms Palioniene worked after her arrival in the UK. She became pregnant with her son and was on maternity leave. She is now on universal credit. She is a single parent who is not in a relationship. Her son's father, Mr Beker, is in Lithuania.
Ms Palioniene has previous convictions in Lithuania for theft and possession and supply of drugs on dates between June 2005 and July 2007. Ms Palioniene has convictions in the UK for 9 offences of shoplifting and an offence of going equipped for theft between October 2014 and April 2016 (albeit the last of these convictions was in September 2016). Ms Palioniene was convicted in December 2017 of failing to comply with a community order which was then revoked.
Ms Palioniene gave evidence at the extradition hearing denying any involvement with the EAW offences. Ms Palioniene also gave evidence that she had made admissions to the offences in Lithuania only because she had been beaten when she was being interviewed and because threats had been made that her sister would become involved in criminal proceedings. When asked if that had had any influence on her decision to leave the country Ms Palioniene replied “immediately, I left immediately but it also had an impact on my decision, there was [no] jobs in Lithuania”. Mr Hawkes noted that there had been no cross examination before the judge of Ms Palioniene about her evidence that she had been beaten. He accepted that Ms Palioniene's evidence about the beating was not in her proof of evidence provided as evidence to the extradition hearing. Mr Hawkes had not submitted to the judge that the effect of Ms Palioniene's oral evidence about the beating meant that the finding that Ms Palioniene was a fugitive was unsound.
There is a welfare report to the Court from West Sussex County Council produced pursuant to section 7 of the Children Act 1989. This shows that social services had become involved because of earlier concerns in relation to Ms Palioniene's accommodation and Mr Beker's arrest on drugs charges. Mr Beker was in custody for part of the period and removed to Poland. Ms Palioniene had appeared to care well for her son. She had never appeared to be under the influence of drugs when seeing social services. There were some matters which social services wanted to question Ms Palioniene about, relating to a man who stayed for a while and disappeared, the relationship with the partner of a friend, and why Ms Palioniene had refused assistance with housing, but it was noted that there may be innocuous answers to those questions.
Social Services considered that the accommodation for Ms Palioniene and her son was far from ideal. However her son had consistently presented as well cared for and having a warm and trusting relationship with his mother. Her son was gaining a strong sense of identity and was achieving many of his milestones. It was felt that removing her son would cause him significant harm, and the level of distress would inevitably affect his development in many ways. The local authority was obtaining legal advice about its responsibilities to care for Ms Palioniene's son but if Lithuania had responsibility the relevant local authority would take the son into care until negotiations with Lithuania had concluded. If the local authority had responsibility her son would be placed in long term foster care. The report noted the difficulties with either Mr Beker or Ms Palioniene exercising parental responsibility for their son from Lithuania. It was noted that negotiations about the son's care were likely to be difficult and protracted which was likely to affect the son. The report noted “either way he will become a looked after child (LAC) and be cared for and protected by the LAC protocols of the county”.
Some evidence on the prison conditions and assurances about prisons
Lithuania provided an assurance in the course of the proceedings before the judge. This provided that all persons surrendered under an accusation warrant would be held in Kaunas Remand Prison, Lukiskes Remand Prison or Siauliai Remand prison. They would have not less than 3 square metres of space. Further provision was made about using refurbished parts of the prisons. Further information showed that female remand prisoners were being held separately from male prisoners in Lukiskes Remand Prison and Siauliai Remand prison.
Further information provided on 1 August 2018 showed that section 3 of the Code of Penalty Execution regulated the peculiarities of penalty...
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