THE QUEEN ON THE APPLICATION OF EINIKIS v THE MINISTRY OF JUSTICE, LITHUANIA [2014] EWHC 2325 (Admin)
[1]MR JUSTICE OUSELEY : This is an appeal against a decision of District Judge Arbuthnot on 18 March 2013. She ordered the extradition of the appellant to Lithuania on a conviction EAW in respect of two offences. The first offence was a domestic burglary committed in February 2008 in which he stole a television set. The second offence, committed a few days later, was a commercial burglary. He entered what is described as a cook house with a group of people and stole potatoes, smoked fat, ham weighing two kilogrammes, a kilogramme of smoked jowls or cheeks, a kilogramme of sausages, damaging the barn door. He was sentenced to one year three months for the domestic burglary and for the commercial burglary he was sentenced to one year seven months. Both of those sentences were suspended for two years. The conditions of suspension an obligation to pay compensation within three months for the domestic burglary and to commence employment or to be registered for employment within three months. The sentences were imposed in June and April 2008. The total aggregated was one year seven months.[2]The appellant sought and obtained permission to come to the United Kingdom for work, but he was required to return to Lithuania within the period of three months at least to report on how he was doing. However, he did not return as required. He had endeavoured to pay the compensation but that could not be paid because he was seeking to pay from the United Kingdom rather than in Lithuania. He had some offences in the United Kingdom not long after his arrival for which he received cautions.[3]He was 19 at the time of the offences. He is now 24. He is also now married to a Lithuanian and they have a son, born in February 2012. He has employment in this country, as does his wife, although she has medical problems which she associates with the birth of the child.[4]The District Judge was concerned about their well being. The appellant was not represented before her. The District Judge was told that they received child benefits but had not approached anyone about housing benefit and he had not been to social services. The court gave them social service contact details.[5]The court concluded that he was a fugitive because he had not fulfilled the obligations of the suspension of the sentence. Whether the District Judge appreciated that it was the failure to return as opposed to the departure from Lithuania which was the cause of activation is not clear.[6]The District Judge's decision recognised that without him his partner and child would have to approach the state for help and they would be unlikely to return themselves to Lithuania. The District Judge accepted that he and his partner had been unable to face the extradition proceedings, they had just hoped that something would come up and had given no thought to what would happen were there to be extradition. They were just unable to help themselves.[7]The judge was conscious that the order for extradition would cause great hardship to this family. In essence, the concern is that not merely would the father lose contact with the son and vice-versa while such period of the one year seven months required to be served was served, with the limited contact available in custody in Lithuania -- no more, it appears, that 15 minutes' telephone contact unless the partner and child were to go to Lithuania for the opportunity of face to face visits on a monthly basis or for shorter visits on a weekly basis -- but it also appears that the partner's job could be in jeopardy because of the need to provide child care, and the loss of the father's income would mean that paid for child care could not be afforded. The accommodation would also be in jeopardy. These are all sad circumstances to follow from the failure of the appellant to comply with the terms upon which the order for imprisonment was suspended. Of course, the order for activation was imposed in 2008 at a time well before the child was born.[8]The appellant puts some weight on the delay between the activation of the suspended sentence and the issue of the EAW and then the issue of the EAW in 2010 and its certification in 2012.[9]To my mind a more important point is what has happened during that period and in particular the gainful employment and the birth of the son. None of that could have been known to the activating court because it had not occurred.[10]The appellant has also been subject to an electronically monitored curfew since 5 November 2012. There have also been reporting conditions requiring reporting three times per week to a police station. Those conditions have endured since September 2012 to date; approximately one year and seven months. The reason, or one of the main reasons, for the delay has been waiting to see what the outcome would be of decisions concerning whether or not Lithuanian authorities were judicial authorities and whether the prison conditions were in breach of Article 3. But it all adds up to a period of nearly six years since activation.[11]Miss Westcott submits that in those circumstances extradition would be disproportionate in its effect on the child, the partner and indeed on the father.[12]Mr Hearn submits that the interests in upholding extradition arrangements, enforcing court orders and in sustaining compliance with the terms upon which sentences are suspended outweighs that significant disruption, or profound effect, as Miss Westcott put it. He contests the point that the sentence of one year seven months of itself is to be seen as disproportionate by United Kingdom standards. I do not put weight on the fact that United Kingdom sentences for these offences might have been less.[13]There is always a problem when a sentence is suspended or a person is released upon conditions and those conditions are not complied with. Those who benefit from conditional release or from the suspension of a sentence are expected to comply with those conditions. There is an important public interest in supporting extradition in order that the orders that the court makes are not set at nought by evasion followed by change of circumstances.[14]Nonetheless, I have to recognise that the prison sentence was suspended; that the appellant was permitted to come to this country in order to obtain employment, one of the conditions of the suspension; I have to bear in mind that the appellant has undergone a degree of deprivation of liberty through the curfew between 21.00 hours and 05.00 hours over the period of one year seven months, even though not itself qualifying as a period to be deducted from sentence, and I have to take into account the element of restriction imposed by the reporting of three days a week over a similarly extended period. The disruption to the well being of the child and to the family circumstances would be very significant.[15]It is not an easy case in which to judge whether the return would be disproportionate. I have of course given very considerable weight to the careful judgment to which District Judge Arbuthnot came and as at that date I would have been of the same mind. But what in my judgment tips the balance here -- and it may be that it is a generous view -- is the passage of time during which this issue of extradition has been hanging over the family with the stress and anxiety that that would inevitably cause and the extent to which, although not equivalent of a prison sentence, the appellant has been subject to curfew and reporting, which has been a reminder to him of the problems created by his failure to comply with the court requirements, and the increasing length of time, therefore, from the point at which the offences were committed.[16]All of these cases turn on their individual facts and require an individual judgment which cannot be usefully compared, despite the forensic appeal to some advocates of doing so, with the facts of other cases.[17]With some anxiety, I have to say, I have come to the conclusion that for the reasons I have given extradition would now be disproportionate and accordingly I allow this appeal. I should emphasise that I do so by reference to Article 8 only. I do not do so by reference to anything which is said by the European Commission. The European Commission's undoubtedly real concern about the extent to which the European Arrest Warrant is used too frequently is not a proper basis for a bar to extradition or for the erection of some further factor of EU law proportionality. The Extradition Act giving effect to the Framework Decision does not permit account to be taken of that report, which does not itself either purport to set out a proportionality test for courts to consider. Proportionality is only relevant under Article 8. I have made that point on a number of occasions.[18]MISS WESTCOTT : My Lord, if it would assist, my learned friend and I can draft the order and send it to the associate.MR JUSTICE OUSELEY : Yes.
Cited in 13 later judgments
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