Miklis v Deputy Prosecutor General of Lithuania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Mr Justice Tugendhat |
| Judgment Date | 11 May 2006 |
| Neutral Citation | [2006] EWHC 1032 (Admin) |
| Docket Number | Case No: CO/1489/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 May 2006 |
[2006] EWHC 1032 (Admin)
Lord Justice Latham and
Mr Justice Tugendhat
Case No: CO/1489/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Ben Cooper (instructed by Hodge, Jones & Allen) for the Appellant
Brian Gibbins (instructed by the CPS) for the Respondent
This is an appeal pursuant to Section 26 of the Extradition Act 2003 (the Act) against an extradition order made at Bow Street Magistrates Court on the 13 th February 2006 by District Judge Anthony Evans. He ordered the appellant to be returned to Lithuania to face trial for two offences of theft and one offence of burglary. It is accepted by the appellant that these offences are extradition offences pursuant to Section 64(3) of the Act. But he submits that the District Judge should not have made the order that he did because on the evidence before him he should not have been satisfied as he must under Section 21(1) of the Act, that extradition would be compatible with the appellant's convention rights within the meaning of the Human Rights Act 1998, and that, again on the evidence, it would be unjust or oppressive to extradite the appellant by reason of his mental condition so as to require his discharge pursuant to section 25 of the Act. Alternatively, it is submitted that the District Judge would have come to a different decision on these two issues had he had before him evidence now provided to this court, firstly as to treatment of offenders in Lithuania, and second as to the appellant's health, pursuant to section 27 (2) and (4)(a) of the Act.
As far as the new evidence is concerned, this consists of an expert report from Doctor Brad Blitz exhibiting thirteen reports relating, in particular, to the conduct of the police and conditions in prisons in Lithuania, and a psychiatric report from Dr Olumoroti dated the 29 th March 2006. None of this material was before the District Judge. Mr Cooper on behalf of the appellant accepts that this material should, ideally, have been before him. He explained that as far as the material relating to conditions in Lithuania was concerned, there had been substantial difficulties in collating it which had not only been experienced by him and his instructing solicitors, but also by others instructed on behalf of Lithuanians in respect of whom extradition has been sought. I hope that the material provided by Dr Blitz means that this will no longer be a problem in Lithuanian cases. It is not only important that a District Judge, who has the task of assessing the credibility of any oral witnesses, as well as evaluating objective material such as that obtained by Dr Blitz, should have all of the material before him in order to carry out that exercise properly.
It should be remembered that Section 27(4) of the Act, dealing with new evidence, refers to evidence at the appeal "that was not available at the extradition hearing". The word "available" makes it plain that, whilst I would not consider that the requirements of Ladd –v—Marshall [1954] 1WLR 1489, had to be met where not only the liberty of the individual, but also matters relating to human rights are in issue, nonetheless the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the appellant "keeping his powder dry" he must expect the Court to view any application to rely on such evidence with some scepticism. In the present case, I am prepared to accept that the material provided by Dr Blitz could not have been obtained in time for the hearing before the District Judge. I am less convinced that the medical evidence could not have been. Nonetheless, in the circumstances of this case, we have read and are prepared to admit that evidence as part of the material upon which we should determine this appeal.
The evidence before the District Judge included oral evidence from the appellant. The salient parts of his evidence were that he was involved in the drugs culture. He had served five years imprisonment for an offence involving drugs. After his release he continued to sell drugs. According to the findings of the District Judge, some time in the winter of 2004 he was seized in the street by a group of police officers, bundled into a van and taken to the police station. He was subjected to violence in the van and at the police station when he arrived there. He agreed to work for the police, in other words to act as an informer. As a result, a number of those with whom he had worked were convicted and jailed. He then broke up with his girlfriend who by way of reprisal, it would appear, told his friends that he had been acting as an informer. He then told the police that he did not wish to work for them any longer. His evidence was that sometime after that, which he did not identify, he was attacked in the street by men wearing masks and was stabbed, as a result of which he was in hospital for three weeks. He could not remember whether he had reported this matter to the police. Eventually, in June 2005, he came to this country.
The District Judge, having referred to Osman –v—UK (1998) 29 EHRR 245, and Soering –v—United Kingdom in (1989) 11 EHRR 439, concluded that the test in relation to a breach of Article 2 of the European Convention on Human Rights was whether there was "an almost certainty" of the applicant being killed. This was accepted by the appellant, who did not pursue that point. As far as Article 3 of the Convention was concerned, the District Judge identified the test as requiring substantial grounds for believing that there would be a real risk of the appellant being tortured or subjected to inhuman or degrading treatment on his return. He concluded that there was no such risk, but in doing so put his findings in the following terms;
"The evidence given by him is not up to the appropriate standard i.e. on the balance of probabilities, that he would be in danger if returned, nor (sic) kept in inappropriate conditions."
The appellant further submitted that there was a real risk of his being deprived of a fair trial, contrary to Article 6 of the Convention. The District Judge, having reviewed the evidence in that respect concluded that the appellant had not made out his case, and rejected his arguments. There is no appeal against the District Judge's decision in that regard.
As far as Section 25 is concerned, that is the argument that it would be unjust or oppressive to extradite him, the evidence of the appellant was that on two occasions, on the 14 th and 16 th of October 2005, he had cut his wrists, on the latter occasion twice and on the final occasion deeply. He was taken to hospital for the wound to be sutured. In his evidence he said that in the first instance he wanted to die, but on the second occasion he did not really want to die. The District Judge concluded that his actions were merely attention seeking and no more. He noted that the appellant was not on suicide watch. There has been no indication that the appellant has taken any steps by way of self-harm since then.
As far as Section 21 is concerned, that is the argument that the District Judge could not be satisfied that extradition would not be contrary to the appellant's human rights, the appellant further relied upon four reports, two produced by the Human Rights Monitoring Institute in 2004 and 2005, a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and an Amnesty International Report of 2002. The District Judge acknowledged that these raised questions about the reliability of justice in Lithuania, and the ability of the authorities to provide satisfactory protection. This was of importance in the context of the appellant's argument that he would be seen as an informant if he were to be returned to Lithuania, which would expose him to the risk of reprisals in prison. The District Judge was not impressed by this material. As far as the European Committee Reports and the Amnesty International Report were concerned, they related essentially to visits in February 2000. As far as the reports of the Institute were concerned, the District Judge considered that, since it had been set up specifically to look at the question of human rights in Lithuania, "caution must be exercised in considering these reports in view of the agenda of the reporting body". He did not consider that any of these reports raised sufficient concerns to justify the conclusion that he should not order extradition.
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