Prosecutor General's Office (Lithuania) v Michail Michailov

Hearing date: 24 June 2025

Approved Judgment

This judgment was handed down remotely at 10.30am on 11 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is the Judicial Authority's (“JA's”) appeal from an order for the discharge of the Respondent requested person (“RP”) made on 15 November 2021 by District Judge Callaway, sitting at the Westminster Magistrates' Court. The District Judge held that the extradition of the RP would be contrary to Article 3 of the European Convention on Human Rights (“ECHR”) given certain mental and physical conditions from which he suffers. He considered that there was a real risk that, by reason of these conditions, the RP would be subjected to inhuman and degrading treatment in the Lithuanian prison system because the facilities and the care available to him would be inadequate. Such assurances as were before him were generic in nature and he did not consider that there was any further information which the JA might provide which would allay his concerns.

At a rolled up hearing on 18 October 2024, Sir Peter Lane held that the District Judge's view that, in effect, there was no assurance which the JA could give which would satisfy Article 3 ECHR, was irrational. Given his view that the assurances which had been provided were generic, the District Judge should have sought further, specific, information before coming to a decision in relation to Article 3. Sir Peter's reasons are set out in a helpful judgment under neutral citation number [2024] EWHC 3001 (Admin).

Sir Peter therefore gave the JA permission to appeal and directed that the parties agree a list of questions to be put to the Lithuanian Prison Service which he then approved. On 10 December 2024, Mr Linas Nanartavicius, Deputy Head of the Lithuanian Prison Service, then provided a response to these questions. On 5 February 2025, the RP's representation order was extended administratively to provide for a medical report by Dr Mark Burgin (General Practitioner and Disability Analyst), and a timetable for the provision of further information and evidence was directed, without prejudice to any objection to the admissibility of such materials.

In the event, neither party objected to me taking into account any of the evidence and information relied on by the other party. In the light of Sir Peter Lane's conclusion as to the rationality of the District Judge's decision, and his order that further information be sought, it was common ground that I am required to make a fresh decision on the Article 3 ECHR point. The issue in the appeal is whether, in the light of the evidence which is currently available and the further information provided, the District Judge's decision was wrong.

The Requested Person

The RP is a Lithuanian national whose date of birth is 28 May 1969. He says that he served in the Soviet Army including in Afghanistan in 1988–1989, as a result of which he suffers from post traumatic stress disorder (“PTSD”). He has various other conditions and impairments to which I refer below.

The RP has five convictions for six offences in Lithuania and the Netherlands: four offences against the person and two public order offences. The offences against the person include an attempted murder committed in the Netherlands in July 2012, for which he received a custodial sentence of 3 years.

The Arrest Warrant

The arrest warrant (“AW”) which is the subject of these extradition proceedings is an accusation warrant which was issued on 22 January 2020 and certified by the National Crime Agency on 5 April 2021. The RP is accused of three offences, two of which are offences against the person. The third is a public order offence. In summary, the allegations are that, on 3 April 2017, whilst drunk and in the communal area of shared accommodation, he stabbed another person in the back of the head with a knife and caused a wound which corresponded to slight bodily injury. The next day, he stabbed the same person in the head again and caused further injury. This incident is also charged as an affray. The offences against the person carry a maximum sentence of 2 years' custody and the public order offence carries a maximum of 5.

The hearing before the District Judge and his decision

The RP was arrested on 6 April 2021 at his home address near Bognor Regis and was bailed after his first appearance on 7 April 2021.

The extradition hearing before District Judge Callaway took place on 10 September 2021. Until the day before the hearing, the RP's objections to extradition were based on section 14 of the Extradition Act 2003 (passage of time) and section 25 (the physical or mental condition of the person in respect of whom the warrant is issued is such that it would be unjust or oppressive to extradite him), as well as section 21/Article 8 of the ECHR. However, the Article 3 argument was then raised after Ms Hinton for the JA had filed her Opening Note. The District Judge therefore asked for post hearing written submissions on this issue.

At the hearing before the Magistrates' Court, the RP gave evidence with the assistance of an interpreter. His evidence included that he had made a number of suicide attempts and he showed the District Judge scarring on his arms as evidence of this. The RP also relied on a statement from his partner which supported his evidence as to his mental and physical health, and said that she assisted him with his daily needs. In particular, she supported his evidence that he had suffered a knee injury in a cycling accident around 2 years earlier which left him with constant pain and affected his mobility, as well as giving rise to issues with his lower back.

The District Judge also had before him a telephone assessment report from a Dr Petra Makela dated 10 July 2020, and a psychiatric report prepared by a Dr Krishna Balasubramaniam dated 19 October 2020. And there were more up to date reports from Dr Liliya Korallo, a psychologist, dated 27 August 2021, and Ms Margaret Ellis, an occupational therapist, dated 7 September 2021. Dr Korallo and Ms Ellis, both gave evidence. The District Judge noted that Dr Korallo's evidence was that:

“I would conclude that (the RP) suffers from mild General Anxiety Disorder and moderately severe depression, with PTSD emerging only under severe acute stress. … there are several important factors, in combination, that would be likely to provoke suicide were (the RP) to be returned to (the JA).”

He also noted Dr Korallo's evidence that the RP tended to minimise the impact of his combat experiences.

Ms Ellis recorded the RP's physical issues arising out of his cycle accident, and that he was walking with the assistance of one elbow crutch. The District Judge noted her evidence that:

“The Three Standardised Assessments which I have undertaken… demonstrate a general weakness and inability of independence of this man. He is highly dependent on his partner and on physical and mental support she constantly provides him every day and night.

There is no doubt that since his accident (the RP) has become totally dependent on his partner for most of his physical and mental functions.”

On the basis of the evidence as it then stood the District Judge held that, notwithstanding the issues in relation to the RP's mental health and the evidence as to the risk of suicide, it would not be unjust or oppressive to extradite the RP for the purposes of section 25 of the Extradition Act 2003. The RP's objection based on section 25 failed accordingly. However, he did not take the RP's physical health into account in coming to this conclusion. The objections under section 14 and Article 8 ECHR were also rejected.

In relation to Article 3 ECHR, however, the District Judge held that the RP was “far from being able bodied”, that he had “significant disabilities as reflected in the unchallenged evidence of Ms Ellis”, and that factoring in the psychological evidence as well, the RP was “exceptionally vulnerable not only in a general sense, but also within the context of a prisoner (sic) and whether on remand or serving a sentence”. The JA had provided two assurances dated 3 April 2020 which dealt with the treatment of all people extradited to Lithuania by the United Kingdom and provided guarantees as to, for example, minimum space in a specified remand prison (Siauliai). But the District Judge noted that these assurances did not deal with the individual circumstances of the RP's case, the issues with his health, and the type and quality of the care which he would receive in prison in Lithuania. He therefore considered whether to request further information from the JA pursuant to Criminal Proceedings against Aranyosi [2016] QB 921 and said the following at [46]:

“46. I am mindful that proceedings need to be resolved within a reasonable time scale. Necessarily, for the court to seek further information will, a fortiori, delay the conclusion of the application, what should the court do in this instance? In my judgment, the generic nature of these assurances are deficient, and are incapable of rectification in this particular case whatever information is sought from this JA. It is clear that this JA is unable to detain this RP in such a way as to secure his Art. 3 rights. Any requests for further information would be unlikely to assist this question and...