Antonov & Anor v Prosecutor Generals Office Lithuania [2015] EWHC 1243 (Admin)

Case No (1) CO/336/2014 & (2) CO/328/2014[2015] EWHC 1243 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/05/2015
Before
LORD JUSTICE AIKENSMR JUSTICE SIMON
Between
VLADIMIR ANTONOVAppellantsRAIMONDAS BARANAUSKASAppellantPROSECUTOR GENERALS OFFICE LITHUANIARespondent
Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner Solicitors Ltd) for 1 st AppellantJohn Jones QC and Aaron Watkins (instructed by Dalton Holmes Gray Solicitors) for 2 nd AppellantJohn Hardy QC and Ben Watson (instructed by CPS) for RespondentHearing Hearing dates: 11 & 12/02/2015
JUDGMENTLord Justice Aikens :
[1]This is the judgment of the court to which both of us have contributed. Both before the District Judge and before us, one of the issues involved sensitive material and evidence. Like the District Judge, we have therefore issued two judgments. This, the “open” judgment, is the principal one. The sensitive matters are dealt with in a “closed” judgment. The “closed” judgment will be available only to certain representatives of the parties, as agreed by the court.

Synopsis

[2]There are two appeals before the court from the orders of District Judge Zani (“the DJ”) made on 20 January 2014 whereby he ordered the extradition of Vladimir Antonov and Raimondas Baranauskas (respectively “VA” and “RB” and together “the appellants”) to Lithuania to face criminal prosecutions in respect of four alleged offences as set out in two European Arrest Warrants (“EAWs”) which were issued on 1 June 2012. Lithuania is designated as a territory to which Part 1 of the Extradition Act 2003 (“the EA”) applies. The EAWs were issued by the respondent Lithuanian judicial authority (“the JA”) and they were certified by the Serious Organised Crime Agency (“SOCA”) on 5 July 2012. Because the two EAWs seek the surrender of the appellants to face prosecutions in Lithuania, they are what is commonly called “accusation” EAWs. The two appellants were arrested in the UK on 6 July 2012. Both have been on conditional bail throughout the protracted extradition proceedings.[3]There were challenges to the EAWs on the grounds that that the Prosecutor General’s Office was neither a “judicial authority” for the purposes of Part 1 of the EA nor a judicial authority with the function of issuing domestic warrants in Lithuania, so that SOCA had acted unlawfully or irrationally in certifying them under section 2 of the EA. Both challenges were subject to protracted court proceedings up to the Supreme Court and were rejected. These and other preliminary objections delayed the main extradition hearing.[4]The extradition hearing began before the DJ on 26 September 2013 and was held over 14 days. The DJ heard extensive factual and expert evidence from 19 witnesses (11 factual, 8 expert) on 13 of those days, although neither of the appellant’s gave oral evidence. The DJ received evidence from a further 12 witnesses (6 factual, 6 expert) who were not required to be called by the respondents. The parties provided the DJ with copious written submissions and he handed down his reserved Ruling on 20 January 2014 in the form of “open” and “closed” judgments.[5]Each of the EAWs sought the surrender of each of the appellants for the following four alleged offences:(1) abuse of office, contrary to Article 228 of the Lithuanian Criminal Code, punishable with up to 6 years imprisonment;(2) theft, contrary to Article 183 of the Code, punishable with up to 10 years imprisonment;(3) forgery, contrary to Article 300, punishable with up to 6 years imprisonment; and(4) fraudulent management of accounts, contrary to Article 222, punishable with up to 4 years imprisonment.[6]The charges are based on allegations of wrong-doing by the two appellants in relation to Snoras Bank, (“Snoras”) which was, until its nationalisation in November 2011, the fifth largest bank in Lithuania and the largest in private ownership in Lithuania. VA, who is a Russian national, owned Conversbank, a Russian commercial bank. In 2006, VA indirectly became a major shareholder of Snoras as a result of the purchase by Conversbank of 49.9% of Snoras’s share capital. RB, who is a Lithuanian national, was Snoras’s Chief Executive Officer and chairman of the Board of Management from 1994. At the time of the Conversbank purchase of Snoras shares, RB owned only 0.2% of the shares in Snoras. However, after a re-organisation of Snoras’ share-structure in 2006 (authorised by the Lithuanian Central Bank), VA came indirectly to hold 68.1% of the Snoras shares (via Conversbank’s shareholding in Snoras) and RB 25.31% of the Snoras shares, and VA became the Chairman of the Supervisory Board of Snoras. Snoras had expanded during the 1990s and particularly after Lithuania acceded to the EU. By 2006/7 it had offices in countries both within and outside the EU, and had assets of 4.2 billion Lithuanian Litas (approximately €1.2 billion). The last audit before Snoras was nationalised in November 2011 indicated that, as at December 2010, Snoras had assets of 7.6 billion Litas. During the period 2007 to 2011, Snoras owned a minority stake (34%) of the shares of a company that published a Lithuanian daily newspaper, Lithuanian Morning or Lietuvos Rytas. It was said that this newspaper tended to be critical of the government of the day.[7]The two EAWs allege that VA and RB were responsible for the management of Snoras’ assets together with Mr Naglis Stancikas (Deputy Chairman of the Board and First Vice-President of Snoras) and Mr Remigijus Bartaska (Deputy Director, then Director of Investment Business Services of Snoras). It is said that during the period 2008 to 2011 the four conspired to transfer substantial cash and assets, the property of Snoras, to accounts under the control of VA and RB in two Swiss banks, Banque SYZ and Co SA, and Bank Julius Baer & Co Ltd. The EAWs allege that VA and RB instructed Mr Stancikas and Mr Bartaska to transfer sums in 33 specific transfers, which are identified in the EAWs. It is alleged that the total sums transferred from Snoras in this way are: securities worth €237 million (or Lithuanian Litas – “LT” - 821 million); €241.6 million (or LT 834 million) and US$ 10.6 million (or LT 26 million). The total sum is approximately LT 1.7 billion. It is also alleged that VA and RB procured forged SWIFT messages to be sent by the two Swiss banks to Snoras, which falsely stated that very large sums were on deposit for the account of Snoras at their banks; and, further, that VA and RB arranged for this false information to be provided to the Credit Institutions Supervision Department of the Bank of Lithuania.[8]From 2009 there was concern about the solvency of Snoras by various UK and international agencies. By mid 2011 the Lithuanian Central Bank was anxious about the liquidity of Snoras and there were discussions about restructuring the bank. From 19 September 2011, inspections by the Lithuanian Central Bank uncovered evidence that suggested serious fraud and mismanagement at Snoras which threatened its solvency. The Central Bank reported what it regarded as grave irregularities to the Lithuanian Prosecutor General’s Office on 9 November 2011, concluding that there was a “possibility” that serious offences had been committed at Snoras, which could possibly have serious consequences for the financial system of Lithuania. The Prosecutor General’s Office launched a criminal investigation immediately.[9]On 15 November 2011, Lietuvos Rytas ran a story that searches were about to be performed on one of four independent Lithuanian banks, including Snoras, allegedly at the instigation of the office of the President of Lithuania. There was a run on Snoras whose reserves with the Central Bank were rapidly depleted. On 16 November 2011, the Central Bank decided to impose a moratorium on Snoras’ operations and to “take over Bank Snoras for public needs”, that is to nationalise the bank. On the same day, the Central Bank appointed Mr Simon Freakley as the Temporary Administrator of Snoras. He is a qualified accountant and a licensed Insolvency Practitioner in England and Wales. At the time he was the Chief Executive Officer of Zolfo Cooper LLP, and he had 29 years experience specialising in the development and implementation of business recovery strategies. On 7 December 2011 the Vilnius District Court made an order initiating bankruptcy proceedings in respect of Snoras and Mr Neil Cooper of Zolfo Cooper LLP was appointed bankruptcy administrator of the bank. Mr Freakley’s position as Temporary Administrator thereby terminated.[10]Meanwile, domestic arrest warrants in respect of VA and RB were granted to the prosecutor on 22 November 2011. On 24 November 2011 two EAWs for the arrest and extradition of VA and RB from the UK were issued by the Central Prosecutor’s Office. These were not processed. Following further investigations, a second set of two EAWs was issued in May 2012. However, following further investigations a further set of domestic arrest warrants was issued, following a challenge in court, on 9 July 2012. The third and current set of EAWs was issued on 5 July 2012. The grounds of challenge to extradition.[11]Before the DJ, both VA and RB raised eight grounds of challenge to their extradition. The DJ rejected them all. Before this court the appellants appeal the DJ’s rejection of the grounds of challenge based on sections 13 (a), 13(b) and section 21 Section 21 was amended by the Anti-Social Behaviour, Crime and Policing Act 2014, which came into force on 21 July 2014. The effect of the amendment is that section 21 now relates only to Convention Rights being a bar to extradition in the case of “conviction” EAWs, not in the case of “accusation” EAWs, where the issue is now dealt with in section 21A(1)(a). Counsel agreed, and we accept, that we should deal with the matter under section 21. The 2014 amendment has made no substantive change to the law on this particular point. of the EA. In addition, it is argued that the DJ erred in relation to a procedural matter during the course of the extradition hearing and also that he failed to make a proper analysis of the evidence or give proper reasons, so that his decision overall is vitiated. It is submitted that all these issues can be raised on appeal by virtue of section 26 of the EA. It is argued that the DJ ought to have decided the relevant questions differently and that the consequence of him doing so would have been that he would have been required to order the discharge of both of the appellants. We have set out the relevant statutory provisions of the EA in an Appendix to this judgment.[12]Mr John Jones QC, who represented RB, made the arguments on the section 13(a) challenge on behalf of both appellants. Mr Edward Fitzgerald QC, who represented AV, adopted Mr Jones’ arguments. Mr Fitzgerald presented the appeals on the section 13(b) challenges on behalf of both appellants, which Mr Jones adopted on behalf of RB. Mr Fitzgerald also dealt with the ECHR challenges under section 21. These concerned Articles 2 and 3, although Article 2 only concerned VA. Mr Jones also dealt further with the Article 3 argument on behalf of RB. He advanced the arguments based on procedural irregularities in the course of the extradition hearing and the alleged failure of the DJ to analyse the evidence or give proper reasons. Mr Fitzgerald adopted those arguments on behalf of VA. Mr John Hardy QC responded on behalf of the JA to all the arguments raised. We elaborate each appellant’s grounds of appeal in the next succeeding paragraphs. The hearing before us consisted of “open” and “closed” sessions over 2 days and we reserved judgment.[13]Vladimir Antonov: Mr Fitzgerald’s first argument is that the steps taken against VA and indeed against Snoras have been motivated by political hostility towards him because he is a Russian national, has links with the Social Democrat Party in Lithuania (which was in opposition in 2011 but is now in power) and the fact that Snoras bank had a 34% shareholding in the company that published Lietuvos Rytas. He submitted that if the DJ had properly analysed the evidence he would have been bound to conclude that the EAW for VA’s extradition was in fact issued for the purpose of prosecuting him on account of his Russian nationality and his political opinions which did not accord with those of the government of the day. Therefore VA’s extradition is barred by virtue of section 13(a). His second argument is that if VA were to be extradited he would be “prejudiced” because he would not obtain a fair trial because of his nationality and political opinions. Again, Mr Fitzgerald submitted that the DJ had not properly analysed the evidence which demonstrated that there was a risk of political interference, or at least influence, in the trial or in relation to the judiciary of Lithuania. Therefore, VA’s extradition is barred by virtue of section 13(b).[14]Mr Fitzgerald’s next argument was that the judge had erred in concluding that there were not substantial grounds for believing that there would be a real risk of VA being assassinated or seriously injured by the deliberate actions of others were he to be extradited to Lithuania. Therefore, the extradition of VA is barred because it would be contrary to his Article 2 or Article 3 ECHR rights. The evidence on this topic was and is sensitive and was the subject of submissions in a “closed” session of the appeal. Lastly, in relation to Article 3, Mr Fitzgerald’s submission was that there were substantial grounds for believing that there was a real risk that if VA were extradited there would be breaches of his Article 3 rights in relation to the conditions in which he would be held prior to trial. Mr Fitzgerald concentrated on the fact that VA would be held in police detention upon his arrival in Lithuania and from time to time thereafter. He submitted that although in the past the Lithuanian authorities had given assurances to the English courts about where those extradited from the UK would be held, they had been broken in relation to prisons and the Lithuanian authorities did not appear to recognise that there were problems with conditions in police detention.[15]Raimondas Baranauskas: Mr Jones concentrated first on the submission that the DJ had failed to analyse sufficiently the evidence that was before him and had failed to give adequate reasons for his conclusions, particularly in relation to the challenges to extradition made under section 13(a) and (b). Mr Jones submitted that RB’s extradition was politically motivated because the prosecution against him was being brought in order to justify, after the event, the unwarranted nationalisation of Snoras. Mr Jones submitted that the failure of the judge to analyse properly the evidence about the events leading to the bank’s nationalisation and the judge’s failure to give proper reasons meant that his decisions on the section 13(a) and (b) questions were untenable. If he had addressed the evidence correctly and given fuller reasons he would have reached a different conclusion on each of those arguments in RB’s case.[16]Mr Jones had a separate argument in relation to one particular procedural aspect of the extradition hearing. On 25 October 2013 Mr Darius Stankevicius, a senior prosecutor in the Lithuanian Prosecutor General’s Office and the prosecutor in charge of the case against VA and RB, gave evidence on behalf of the JA. Mr Jones had asked Mr Stankevicius whether he was aware that a temporary restraint had been placed on all the assets in Lithuania of RB and his wife, so that they had no access to funds for living or their legal defence. Mr Stankevicius started to answer the question when it became apparent that he was consulting notes in documents in front of him in the witness box and on a computer that he had with him. He did so in order to find figures about “the amount of money that has to be paid to [RB]”. Mr Jones asked the witness what was on the computer screen to which Mr Stankivicius referred when answering that particular question. The witness said that he could not say because he was not permitted to disclose that material which was “material on the case”. The DJ ruled that if the material to which the witness was referring was “information which you say professionally you are not able to release” then the witness must “close the laptop”. Mr Jones submitted to the DJ that he should be entitled to examine the material to which the witness had been referring. The DJ ruled that he would not permit Mr Jones to look at the material on the computer in that form, because it included information that the witness was “professionally not allowed to put in the public domain”. However, there might be alternative ways by which certain materials could be produced at a later stage in the hearing. The DJ also ruled that the witness could not refer to any other documents that he had with him which were not in the court bundles for the hearing, because those documents had not been disclosed and neither the judge nor the advocates could see what the witness might be referring to in those documents.[17]Mr Jones informed us that he made a subsequent application in relation to relevant non-privileged material on the computer or in hard copy. Before us he submitted that the DJ was wrong to rule that counsel could not see what was, essentially, “memory refreshing” material to which the witness referred, whether or not the document was confidential. Therefore, he argued, the DJ had made an error of law which vitiated his decision on the section 13(a) and (b) questions.[18]On behalf of the JA, Mr Hardy submitted that:(i) there was no credible evidence that the EAWs were issued for the purpose of prosecuting either appellant on account of his nationality or political opinions;(ii) if extradited there would be no “prejudice” to either appellant by reason of his nationality or political opinions because each would be prosecuted fairly and in accordance with Article 6 of the ECHR;(iii) there were not substantial grounds for believing that the extradition of VA would result in a real risk of a breach of his Article 2 or Article 3 rights; and(iv) in relation to both VA and RB, there were no substantial grounds for believing that extradition would result in a real risk to a breach of the appellants’ Article 3 rights by reason of conditions in detention facilities, whether in prison or in police custody.[19]We will refer to these various grounds of appeal as, respectively:(1) the section 13(a) ground;(2) the section 13(b) ground;(3) the Article 2 and 3 ground, which concerns VA only and the detail of which will be dealt with in the “closed” judgment;(4) the Article 3 prison/police station detention conditions ground; and(5) the lack of reasons and procedural defect ground. Grounds (1), (2), (4) and (5) apply to both appellants; ground (3) only affects VA. Ground (1): section 13(a).[20]Section 13 of the EA does not reflect any provisions of the European Arrest Warrant Council Framework Decision of 13 June 2002 (the “FD 2002”). Instead, section 13(a) and (b) are in very similar terms to section 6(1)(c) and (d) of the Extradition Act 1989. The principal difference is that two new “extraneous considerations” have been added to the EA 2003, viz. “gender” and “sexual orientation”. The 1989 Act provisions are themselves based on those in section 4 of the Fugitive Offenders Act 1967. Section 13(a) is concerned with something that has already happened, viz. the issue of the EAW that is being challenged. The requested person’s extradition is barred if “it appears that” the EAW was “in fact issued” for one of the stated purposes. In Hilali v Central Court of Criminal Proceedings No 5 of the National Court of Madrid [2006] EWHC 1239 (Admin) Certain aspects of the decision are reported at [2007] 1 WLR 768 but not the part of the judgment of Scott Baker LJ which deals with the interpretation of section 13. This is a pity; it should have been. , Scott Baker LJ stated, at [62], that the burden was on the requested person to show a causal link between the issue of the EAW and the particular “extraneous consideration” relied on. That is, with respect, obviously correct because of the way the section is worded. It has to “appear” to the court that the issue of the EAW is, “in fact…for the purpose of prosecuting or punishing” the requested person “on account of” the extraneous considerations that are identified. Section 13(a) requires the court to assess the state of mind of the judicial authority at the time that the extradition request was made, so as to establish whether its purpose was to prosecute or punish for one of the “extraneous” reasons: see Slepcik v Governor of HMP Brixton [2004] EWHC 1224 (Admin) at [24] per Maurice Kay LJ.[21]This burden on the requested person must be one on the balance of probabilities, to enable the court to find that “it appears” that the reason for the issue of the EAW was for the purpose of punishing him on account of one of the “extraneous considerations” that are identified in section 13(a). In Hilali, Scott Baker LJ went on to say, at [63], that “it had long been established, (since Schtraks v Government of Israel [1964] AC 556) that the Court in considering these matters is not bound by the ordinary rules of evidence; [the requested person] may rely on any material in support of a submission based on section 13”. Thus the relaxation applies in relation to evidence on both section 13(a) and 13(b) issues. In the recent decision of the Supreme Court of R(B and others) v Westminster Magistrates Court and others [2014] 3 WLR 1336, Lord Mance (giving the majority judgment) stated that it was common ground amongst the advocates that, “as a matter of established practice”, the normal rules of evidence were relaxed in extradition cases “on issues arising under the heads of extraneous considerations, human rights and abuse of process” and that the root of that practice was the House of Lords’ decision in Ex P Schraks [1964] AC 556: see [21]. Lord Mance noted that the legislation had changed since the Schtraks decision, but “it was unnecessary on this appeal to say anything more about the established practice on which the parties are agreed”: see [23]. We too, will follow the established practice as agreed between the parties in these appeals.[22]In the cases of VA and RB, the requested persons took full advantage of this latitude to call a large number of witnesses whose evidence covered a wide range of topics. This evidence appears to have been aimed at showing that Snoras was solvent at the time that it was nationalised; that the Lithuanian Central Bank interfered unduly with Snoras’s ability to operate effectively as a bank and that the motives of the Lithuanian government and authorities for nationalising Snoras were political. In particular the evidence asserted that there was an “anti-Russian ownership” dimension to the nationalisation and also a desire to ensure that Snoras divested itself of its shareholding in the company that printed Lietuvos Rytas, because that newspaper had been critical of successive Lithuanian governments. Thus, for instance, Mr Rimvydas Valatka gave evidence that investment in the newspaper’s owning company by Snoras in 2009 had enabled the paper to carry on being published and that this may have influenced the decision of the government to nationalise Snoras. It was asserted that the reason for the prosecution of VA and RB was to try and justify what was, in fact, an unjustified nationalisation of Snoras.[23]These extradition proceedings are not and must not be concerned with whether the nationalisation of Snoras was justified or what, if any, were the motives for its nationalisation. The facts are complex and many are in dispute and their resolution is not needed to deal with the challenge to the extradition generally or this current ground in particular. The sole and narrow question is whether the EAWs against VA and RB were issued for the purpose of prosecuting the two appellants on account of either their nationality or political opinions. What evidence is there that the EAWs were issued for the purpose of prosecuting VA on account of his nationality? There is none. There is simply no evidence, direct or indirect, from which it can be established, directly or by inference, that there was a causal link between the issue of the EAW to prosecute VA and his Russian nationality. Even if it could be demonstrated that the motive for nationalising Snoras was that it was pursuant to an “anti-Russian ownership” campaign by the Lithuanian government (which we are satisfied it cannot), that would not provide the necessary causal link between the decision to issue the EAW to prosecute VA and his Russian nationality.[24]Is there any evidence that the EAWs were issued for the purpose of prosecuting VA or RB because of their political opinions? We are prepared to accept that the words “political opinions” in section 13, as in section 6 of the 1989 Act, are not confined to concepts of a belief in a particular political policy but have a broader ambit. (See: Glay Asliturk v Government of Turkey [2002] EWHC 2326 (Admin) at [26] per McCombe J with whom Kennedy LJ agreed). In these cases, however, there was no evidence of any particular political stance or belief on the part of either appellant. VA did not give evidence. There was no other evidence of him having any particular political opinions at all. The fact that VA was the owner of the shares in a Russian bank that had a 68.1% shareholding in Snoras which itself had a 34% shareholding in a company that published a daily newspaper that expressed views that were contrary to the Lithuanian government of the day is wholly insufficient to demonstrate the necessary causal link between the issue of the EAW against VA and the reason for his prosecution being his “political opinions”.[25]RB’s argument that the decision to prosecute him was because of his “political opinions” and his close association with VA is based on the assertion that the prosecutions were brought to justify the nationalisation of the bank. That will not do. A vague argument that there was a political decision to prosecute in order to justify a nationalisation which was itself ordered on political grounds is not enough to establish the necessary causal link. Once again, RB did not give evidence and there is nothing to establish that he had any particular political opinions at all, let alone that the EAW against him was issued for the purpose of prosecuting him on account of his political opinions.[26]This ground is wholly without merit, and we reject it. Ground (2): section 13(b).[27]Section 13(b) is concerned with predicting what facts may occur in the future if the requested person is extradited and the legal consequences that flow from them.

(c) of the 1967 Act provided:

“(1) A person shall not be returned under this Act to a designated Commonwealth country, or committed to or kept in custody for the purposes of such return if it appears t the Secretary of State, to the court of committal or to the High Court of High Court of Justiciary on an application for habeas corpus or for review of the order of committal - … (c) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his persona liberty by reason of his race, religion, nationality or political opinions”. a forerunner of section 13(b), that the section called upon the court “to prophesy what will happen to the fugitive in the future if he is returned”
. Because of the consequences of the court’s expectation of what would happen being falsified one way or the other, the standard that had to be established was that there was a “reasonable chance” or “a serious possibility” or that there were “substantial grounds for thinking” that the eventualities set out in section 4(1)(c) would occur: see 994H. Those expressions, which Lord Diplock regarded as expressing the same test, were adopted in relation to section 13(b) in the Hilali case: see [63]. However, the requested person must establish that there is the necessary causal link between what it is said that there will be a “serious possibility” of happening, such as prejudice at his trial if extradited, and the extraneous consideration relied upon. Thus, for example, the requested person must establish that there is a “serious possibility” that, if extradited, he will be prejudiced in his trial on account of his nationality or his political opinions. In short, the “serious possibility” test applies to both what might happen and the reason for it happening.[28]It is important to note that section 13(b) is only concerned with the possibility of certain specific “extraneous considerations” causing prejudice at the requested person’s trial, or his punishment, detention or restriction in his personal liberty. Other causes of those consequences, such as, for instance, a lack of judicial independence, or corruption, are irrelevant, unless that cause itself results in one of the identified “extraneous considerations” causing one of the consequences identified in section 13(b). To take an example, if a requested person could demonstrate that there was a “serious possibility” that political pressure would be put upon a judge to take certain decisions in a trial because the defendant was of a certain nationality or political opinion, then that could come within section 13(b). But beyond that, there is no scope for extending the meaning of the words “nationality” and “political opinion” as Mr Fitzgerald submitted. Those words should be given their ordinary meaning and no more.[29]The other causes of consequences such as “prejudice at trial” or detention” or restriction in personal liberty are covered by what are now sections 21(1) and 21A(1)(a): viz that the extradition of the requested person would not be compatible with one of his ECHR rights, in particular those under Articles 5 (right to liberty and security) and 6 (right to a fair trial). It is, of course, very well established in the ECtHR’s case law that there will only be a bar to extradition or expulsion if there are substantial grounds for believing that there is a real risk that the requested person would suffer a “flagrant denial” of justice in the requested state. The term “flagrant denial of justice” has been treated as synonymous with a trial which is manifestly contrary to the provisions of Article 6 and the principles expressed in it: see Othman (Abu Qatada) v UK [2012] EHRR 1 at [258] and [259] in particular. It is, we think, important that the boundaries of the subject matter of section 13(b) are strictly observed, so that there is no conflict with the principles that have been set out in relation to breaches of Article 6 giving rise to a bar to extradition.[30]As already noted, in relation to section 13(b) as with section 13(a), the court is not bound by the ordinary rules of evidence when deciding these matters. A requested person may rely on any material in support of a submission based on section 13(b): see Hilali at [63]. No distinction was made between the two subsections in either Hilali or by Lord Mance when making his comments in R(B and others) v Westminster Magistrates Court [2014] 3 WLR 1336.[31]Both Mr Jones and Mr Fitzgerald pointed out, forcefully, that the DJ did not actually make a finding in relation to the section 13(b) argument, because in the relevant paragraphs of the Open and Closed judgments (279 and 307) he refers to the wording of section 13(a) but not that of 13(b). This is correct, but it is clear, if only implicitly, from the wording of the DJ’s ruling that he rejected the section 13(b) arguments. Moreover, the DJ dealt at length with points that were raised by the appellants under the heading of Article 6 of the ECHR, which were based on arguments that the appellants would not have a fair trial because of their political views, “prejudicial comments” of the President and Prime Minister and others and political influence on the trial judge. All the findings and conclusions that the judge made under the Article 6 heading are equally applicable to the arguments raised under section 13(b) and the DJ rejected them all.[32]Was he correct to do so? The argument on behalf of VA and RB on appeal, which was a refinement of that made below, was that they would be “prejudiced” in their trial by reason of their nationality or political opinions. The thrust of the evidence adduced on behalf of VA and RB was that the Lithuanian judiciary is not entirely independent, that there is some political influence in the appointment of judges, that there are problems of corruption and that there is a prospect of political interference with trial processes in certain types of case which have a political “dimension”. Before the DJ, Dr Patricia Streeter and Dr Gintautas Sulija in particular gave evidence to this effect on behalf of the appellants, but there was also evidence on those topics from Mr Rolandas Tilindis. In the course of the appeal our attention was drawn to paragraphs in Dr Sulija’s report in which he quoted remarks by the President and Prime Minister of Lithuania on the nationalisation of Snoras, the possibility that criminal acts had been carried out within Snoras and a suggestion that there might well have been accomplices of VA and RB in the bank. There was a vague hint of xenophobia. Mr Fitzgerald also stressed that Professor Nekrosius, the expert on the Lithuanian legal system called by the JA, had accepted in his report that the Lithuanian judiciary was susceptible to being influenced, that judges sometimes “take the stance of the prosecution more actively” and that there is a general trend of distrust in courts and judges, in common with many other former soviet-bloc states. However, overall, Professor Nekrosius concluded on the evidence available that the principle of independence of the courts in Lithuania was implemented and that the right to a fair trial was safeguarded, particularly in what might be regarded as “high-profile” trials, such as the trial of VA and RB might be. (See para 178 of his report).[33]Is there any cogent evidence to establish that there is a serious possibility that the appellants would be prejudiced in their trial on account of either nationality or their political opinions? In our view there is none. This court has to start with the presumption that the Lithuanian courts and judiciary will, as institutions in an EU and Council of Europe state, uphold their ECHR obligations, unless there is cogent evidence to demonstrate that is not so. In the case of Lithuania the highest that VA and RB’s case can be put is that the judiciary may not always be utterly independent and that there may remain an element of being more favourable to the prosecution as in the old soviet-bloc days. However, there is nothing to show that the judiciary are, in general, biased against Russian nationals or those who are associated with them or that the judges who would be involved in the trial of VA and RB would be biased against them or there would be some other kind of prejudice at their trial on account of their nationality. As we have already said, neither of the appellants have indicated any political opinions in either the narrow or broader sense. So it is impossible for them to show that there is a serious possibility that they would be prejudiced at their trial on account of their “political opinions”.[34]We must therefore reject this ground of appeal. Ground 3: Article 2 and 3: VA only.[35]For reasons that are set out in the closed judgment, we reject this ground. Ground 4: Article 3 prison conditions: VA and RB.[36]Article 3 of the ECHR provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.[37]The basis for this ground of appeal is that there are substantial grounds for believing that conditions in Lithuanian prisons, detention centres and police stations where defendants are detained pending trial or during trial are so poor, by virtue of over-crowding, lack of facilities or uncontrolled inmate violence, that to extradite VA and RB to Lithuania would result in a real risk of a breach of their Article 3 rights. Moreover, although the Lithuanian authorities have given assurances in the past as to where and in what conditions those extradited from the UK will be kept in detention pending trial, so that there would be no breaches of Article 3, those assurances have been broken so many times that they cannot now be relied on. Therefore, the appellants’ extradition should be barred pursuant to section 21 of the EA.[38]The legal principles in relation to breaches of Article 3 by reason of prison overcrowding, lack of facilities and so forth in Category 1 EU states and the status and applicability of assurances by the receiving state in this context have been discussed at length in a number of recent cases. That analysis was not challenged before us, so that there is no need to repeat it again here. For the latest exposition see the judgment of the court in: Antonia Ilia v Appeal Court in Athens (Greece) [2015] EWHC 547 (Admin) at [30] to [40].[39]The JA’s “Skeleton Argument” dated 1 July 2014 stated at paragraph 95 that the respondent had been content before the DJ and before us to proceed on the basis that if the particular assurances given in these proceedings are not adhered to, then it would be established that there are substantial grounds for believing that there is real risk that the appellants’ Article 3 rights would be breached if extradited to Lithuania.[40]Subsequently, the appellants produced “fresh evidence” in two affidavits sworn by Ingrida Botyriene, dated 24 October and 15 December 2014 and an affidavit sworn by Arunas Gernys dated 23 October 2014. The JA objected to that evidence being used on the appeal. But, if the court should permit it to be used, then , in response to that material, the JA produced two letters from the Lithuanian Prosecutor General’s Office dated 24 November 2014 and 29 January 2015.[41]Both parties accepted that the Article 3 and assurances issues had to be considered in the light of the decisions of this court in Aleksynas and others v Ministry of Justice, Republic of Lithuania [2014] EWHC 437 (Admin) (“Aleksynas”)and Astraskevic v Prosecutor General’s Office Lithuania [2015] EWHC 131 (Admin) (“Astraskevic”). Both cases dealt with the issue of extradition, possible breach of Article 3 by reason of poor prison conditions, Lithuanian assurances and their possible breach. In the judgment of the court in Astraskevic, at [52], the conclusions of Jay J in Aleksynas on these topics were summarised and there is no need to repeat them here. The key conclusions were that on the evidence there was no real risk of Article 3 violations in the event of person extradited from the UK being detained in police stations in the districts of Kaunas and Alytus or in other districts of Lithuania and that the assurance given by Lithuania that all those extradited from the UK would be kept in Kaunas remand prison was sufficient and reliable.[42]In Astraskevic, the affidavit of Mr Arunas Gernys, which had been prepared for the present appeal, was before the court. Mr Gernys had been surrendered to Lithuania in March 2014 in order to stand trial on various different charges following a “no issues” extradition hearing. He had abandoned his Article 3/prison and detention conditions argument following an assurance that he would be remanded in the Kaunas remand prison during his detention prior to and during his trial for the extradition offences. Eventually, on 6 June 2014 Mr Gernys was released by the court and he returned to the UK on 20 June 2014. Mr Gernys’ complaint was that, contrary to the assurance given, he had been kept in the Kaunas remand prison, the one identified in the assurance, for only two weeks out of the time he was in detention in Lithuania between 9 April and 20 June 2014.[43]The question in Astraskevic was whether the conclusion reached in Aleksynas was “fundamentally altered” by Mr Gernys’ affidavit. For the reasons set out at [64] of the judgment, this court held that it was not. We need not repeat that paragraph here. Neither Mr Jones nor Mr Fitzgerald challenged that conclusion but argued that the facts had moved on. They concentrated on the fact that the appellants would have to be detained in police stations where there was, according to the evidence of the expert report of Dr Silvia Casale, a ‘congenital’ risk of ill-treatment because, in her view, ill-treatment in police custody during the investigation period (and even after it) is seen as a method of obtaining “reliable evidence for combating crime” and this fact is attested to in various international reports. Her evidence was that the low level of staffing in prisons in Lithuania had had an impact on the degree to which prisoners are protected from inter-prisoner violence. Further, in relation to detention in police stations the risk of intimidation and ill treatment was greatest in the first 48 hours although it also continued after the first appearance before the court. In this regard, Mr Fitzgerald also relied on the evidence of the 2014 report on Lithuanian prisons and detention in police stations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”). This stated that there was a high-level risk of inter prisoner violence in certain Lithuanian prisons.[44]In this regard they relied on the affidavits of Ms Ingrida Botyriene of I.Botyriene & R Kucinskaite, Vilnius Law Firm. The essence of her evidence in the first affidavit is that Mr Gernys and 5 other “extraditees” from the UK to Lithuania who had been returned pursuant to assurances that they would only be held in Kaunas remand prison had, in fact, not all done so. One had been transferred to Alytus police station. In the second affidavit further details of her investigations are given.[45]Mr Fitzgerald had prepared a chronology of the locations of Mr Gernys and another extradited person, Mr Edgaras Jovaisis, which was agreed between the parties. In Mr Jovaisis’ case, during the period from April to June 2014 he was brought to and kept in police detention for one period of 7 days, one period of 2 days and one period of 1 day. There were no details of the conditions in which he was actually kept in the police station.[46]In the present case the specific assurance given to both VA and RB dated 15 May 2013 was that they would both be held in Kaunas remand prison; that each would be “kept alone in a cell of [the] remand prison” of at least 3.6 square metres; and that each would be isolated or protected from other “arrested persons during the time of walking in the yard or other cases of leaving the cell”. Mr Fitzgerald’s submission was that it was inevitable that the appellants, if extradited, would spend at least the first 48 hours in police detention. The risk of an Article 3 breach there was high because of a general tendency to violence (he relied on the evidence of Ms Streeter) and there was also a possibility of corruption of police officers which could lead to injury to the appellants, given the nature of the alleged offences and high xenophobic sentiment in certain quarters in Lithuania.[47]Even assuming, for the present, that the evidence in Mr Gernys’ affidavit and those of Ms Botyriene should be received, they do not go near establishing that there are substantial grounds for believing that there is a real risk of a breach of the appellants’ Article 3 rights. Whilst we agree with Mr Fitzgerald’s submission that we cannot blindly accept all assurances just because they are made by or on behalf of an EU judicial authority; and that there may come a time when continued serious breaches of assurances by an EU state could lead to the conclusion that they are not to be trusted, that is not the current position. Evidence of breaches is sparse and there is no evidence that, as a consequence, Article 3 rights have been infringed. Therefore the assurances, which are specific to these appellants and identify a specific prison, should be accepted. There will be occasions when the appellants, if extradited, will have to be detained in police cells. But, as the ECtHR and English case law has emphasised, whether there is a breach of Article 3 by reason of overcrowding or other poor conditions in prisons depends on the nature of the problem, its duration and the circumstances of the individual concerned. There is no evidence that there is a real risk that the relevant threshold would be reached in these cases.[48]We dismiss this ground of appeal. Ground Five: lack of reasons and the “lap top incident”: procedural defect.[49](1) Lack of Reasons: In relation to the failure to give proper reasons argument, Mr Jones relied on well known principles, stated in the Court of Appeal, that a tribunal must give sufficient reasons to enable the parties to know why they won or lost; that it is insufficient for a tribunal which is drawing conclusions based on the evidence of expert witnesses simply to say that it “prefers” the evidence of one expert over the other and that it should explain why it has done so: see in particular English v Emery Reimbold & Strick Limited [2002] 1 WLR 2409 at [17] to [21] in the judgment of the court; R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at [80]-[81] per Dyson LJ, with whom Mummery and Simon Brown LJJ agreed. Mr Jones argued that a District Judge was obliged, in a reasoned Ruling dealing with a contested extradition, to explain why the evidence of one witness of fact was accepted or that of another was not. He submitted that this court should construe section 27(3) of the EA broadly and consistently with the common law requirement to give reasons. If necessary, on an appeal to the High Court, if it is not apparent why the judge reached the conclusion he did on a particular aspect of the evidence, then, Mr Jones submitted, the High Court has to re-evaluate the evidence for itself and reach its own conclusions and give reasons for it.[50]We accept that a DJ who gives a Ruling in a contested extradition case must give reasons for his conclusion in relation to each of the “questions before him”, to use the wording of section 27(3). The “questions” before him will constitute the grounds on which it is argued that the extradition of the requested person is said to be barred. If, in order to reach a conclusion on a particular “question”, the DJ has to decide on whether he regards the evidence of a witness (whether of fact or expert) as credible, he should state, very briefly, why he reaches his conclusion on credibility. If there are two or more conflicting witnesses of fact and there is a dispute on the oral evidence, it may be that the DJ can say little more than X appeared more credible than Y, but if there are other reasons (such as that X’s evidence was consistent with contemporaneous documents) this should be stated. Where there is conflicting expert evidence, the DJ should, very shortly, indicate why he prefers the evidence of one witness over the other’s. In the English case, at [20], Lord Phillips of Worth Matravers MR gave some examples of the reasons why a judge might decide to prefer one expert’s evidence over that of another.[51]We accept that this reasoning process could, if taken to extremes, go on indefinitely so that a judge would be giving reasons for his reasons ad infinitum. That is obviously not the correct approach. A concise statement (for example) that expert witness A’s evidence was preferred to that of expert witness B because he was better qualified, or he had more carefully analysed the facts, or his explanation accorded better with the facts found, or he appeared more experienced or better able to deal with difficult questions, is all that is needed.[52]An appeal to the High Court from a decision of the “appropriate judge” in a Part 1 extradition case can be made on a question of fact or law: section 26(3). However, assuming no question of “fresh evidence” arises, the appeal will only be allowed if the High Court is satisfied that the “appropriate judge” should have decided a “question” before him at the extradition hearing differently and that this different decision would have led to the requested person’s discharge: section 27(3). If it is not apparent why the DJ reached a view about the evidence of a particular witness, which resulted in it not being clear why the DJ reached a particular conclusion in relation to one of the “questions” before him (ie. one of the grounds said to bar the requested person’s extradition), then the High Court will have to investigate. If a DJ’s conclusion on the evidence of a witness is being challenged on the ground that he gave no reason for his conclusion on whether it was credible or not or why that witness’s evidence was preferred to that of another, this could give rise to an appeal on a question of fact and law: the first because the fact of the conclusion was being challenged; the second because the law requires that the judge should give short reasons for his conclusion on the evidence of witnesses.[53]What is the position in this case? Mr Jones criticised the DJ’s reasons for accepting or preferring or rejecting the evidence of ten of the 19 witnesses who gave oral evidence at the extradition hearing. There is, in general, no criticism of the way that the judge summarised the evidence of the witnesses. It is said that the judge gave no or no adequate reasons for rejecting or accepting the evidence of the witnesses identified. We will have to examine each one briefly.[54]Romasis Vaitekunas gave evidence on behalf of RB. He had occupied a senior post in Snoras and his evidence was that there was no economic or financial need to nationalise Snoras but the decision had been purely political. The DJ stated, at [96], that he preferred the recollection of events of Mr Freakley (the Temporary Administrator) to that provided by Mr Vaitekunas, where there was any conflict. The DJ concluded that Mr Vaitekunas “appears to harbour certain feelings of animosity at the unfair way that he believes that he was treated by [Mr Freakley] and this appears to me to have coloured his interpretation and/or recollection of certain events (particularly those of mid-November 2011)”.[55]In our view the reasons given by the DJ are perfectly adequate. He states why he will prefer Mr Freakley’s evidence if there is a conflict with that of Mr Vaitekunas. In fact, the evidence of Mr Vaitekunas on the reason why Snoras was nationalised is largely irrelevant to the two key questions the DJ had to answer in relation to the section 13 issues: viz. whether the reason that EAW was issued against RB was so that he could be prosecuted on account of his political opinions or whether, if surrendered, the trial of RB would be prejudiced on account of his political opinions. So, even if we had concluded that the DJ’s reasons for not relying on Mr Vaitekunas’ evidence were flawed, that could not lead to a conclusion that the DJ ought to have reached different conclusions on the section 13(a)and (b) questions.[56]Next, Mr Jones criticised the fact that the DJ summarised the evidence of the expert accountants Malcolm Cohen and Andrew Caldwell, who had been called on behalf of VA. Their report questioned the reasons given for the appointment of the Temporary Administrator. Mr Jones pointed out that after the DJ had summarised their evidence, he did not indicate whether he accepted it or not. Despite the fact that Mr Jones asserted that their evidence was “extremely important” in relation to the section 13(a) argument of both appellants (and an abuse of process argument, now abandoned), we think that their evidence was largely irrelevant. The DJ did not reject their evidence. It could not have affected his conclusion that the appellants had not proved their case on section 13(a).[57]Mr Jones also submitted that, in connection with the section 13(a) issue, the DJ failed to give adequate reasons for preferring the evidence of Mr Freakley to that of witnesses called by the appellants on that issue. The DJ noted that Mr Freakley had been called on the “abuse of process” and Article 6 issues and, to that extent, they are irrelevant to this appeal because neither of those grounds of resistance to extradition is now maintained. However, we accept that his evidence might possibly have been relevant to the section 13(a) issue. Mr Freakley’s conduct as Temporary Administrator was criticised by the appellants’ counsel when he was cross examined and the DJ summarised those criticisms and Mr Freakley’s evidence in response at some length. Mr Freakley’s evidence was evidence of fact, not that of an expert. The DJ noted that Mr Freakley was a qualified accountant with 29 years experience in dealing with “high profile business restructuring cases” and that he had been the CEO of a leading international corporate investigation and risk consultancy organisation. The DJ had to assess the evidence of Mr Freakley against that background. In our view the DJ was entitled, against that background and based on his performance in the witness box, to conclude that Mr Freakley was a “very impressive, confident and credible witness”. Having reached that conclusion, the DJ was therefore entitled to use that conclusion as the reason for the further conclusion that “where there has been a difference of opinion, or recollection of events between [Mr Freakley] on the one hand and witness called by [the appellants] on the other”, he had no hesitation in preferring the evidence of Mr Freakley. That is sufficient reasoning.[58]Mr Jones criticised the DJ’s assessment of the evidence of Mr Darius Stankevicius, who was the prosecutor in charge of the investigation into the demise of Snoras and the prosecution of VA and RB. The DJ noted that Mr Stankevicius had been called by the JA to deal with Article 6 and “abuse of process” issues. The main complaint of Mr Jones is that the DJ failed to give any reasons for rejecting the challenges made to Mr Stankevicius’ credibility when he gave evidence, so that the DJ failed to justify his conclusion that Mr Stankevicius was an “impressive and credible witness” who appeared “committed not only to act thoroughly professionally but also to seek to ensure that he [would] do all that is in his power so that both VA and RB, if returned will have a fair trial and that they will not suffer Human Rights abuses”. Mr Jones identified seven specific challenges to Mr Stankevicius’s credibility. (We will deal with the “lap top incident” separately below).[59]It is true that the DJ does not deal with each of these seven specific challenges in turn in his Ruling. In our view there was no need for him to go into such particular detail before reaching his conclusion on credibility. The DJ did go through each of the main areas on which the witness gave evidence. He was entitled to reach the views on credibility that he did and there is sufficient reasoning to justify his conclusion.[60]Mr Jones’ next criticism is that the DJ did not appreciate the nature of the expert evidence given by Dr Patricia Streeter or rejected it without adequate reasons. Dr Streeter’s evidence concerned the question of the impartiality of the Lithuanian judicial system and the possibility of political interference with judicial decisions. Mr Jones noted that the DJ referred to Dr Streeter making “further disparaging remarks” , which he submitted was an error. We disagree. Dr Streeter’s comments were very critical of the independence and impartiality of the Lithuanian justice system. In that sense she was, indeed, making “disparaging remarks”.[61]The DJ’s assessment of Dr Streeter’s evidence was that she had given insufficient credit to the Lithuanian authorities for the changes that they had brought about since independence 24 years ago. The DJ said, in the same paragraph, that he found Professor Nekrosius to have been “a very compelling witness” whose evidence he preferred on these topics. The DJ gave a good reason for preferring Professor Nekrosius’ evidence over that of Dr Streeter on this topic: viz. she had not given enough credit for the progress made. Given that Dr Streeter had accepted that it was possible to receive a fair trial in Lithuania, even if that was less likely in high-profile cases, the issue was how much progress had been made, not whether any had been made at all. The judge preferred the view of Professor Nekrosius because he was a more compelling witness. That was reason enough.[62]Next, Mr Jones attacked the DJ’s assessment of the evidence of Dr Gintautas Sulija, who gave evidence on behalf of the appellants on the Lithuanian judicial system and the reasons for nationalising Snoras. Dr Sulija is clearly well qualified, but that is not of itself sufficient reason why his evidence had to be accepted. Dr Sulija’s evidence, as summarised by the DJ, went nowhere to support the proposition that the EAWs were issued in order that the appellants could be prosecuted on account of their political opinions (or nationality) or that they would be prejudiced in their trial on account of their political opinions (or nationality). Although, in our view, the DJ was wrong to suggest that retroactive legislation directed exclusively at Snoras would lend support to the assertions that the prosecution of the appellants was “politically motivated and an abuse of process”, it does show that the judge had, indeed, taken the opportunity to reflect on the evidence of Dr Sulija and saw some force in part of it.[63]In order to see whether the DJ gave adequate reasons for preferring the evidence of Professor Nekrosius over that of Dr Sulija, it is necessary to look at the DJ’s comments on the latter witness after the summary of his evidence. The DJ recorded that Professor Nekrosius is a “highly experienced academic who gave persuasive and authoritative evidence”. That is reason enough to prefer his evidence over that of another expert witness, such as Dr Sulija. The DJ compared the two and made a choice. Unless that choice can be shown to be irrational or unreasonable in the light of the evidence given, then the choice is unimpeachable.[64]Mr Jones effectively did assert that this choice was unreasonable because, he submitted, the DJ failed to take account of the fact that Professor Nekrosius was challenged in cross-examination about what was characterised as his reluctance to condemn comments by the President and Prime Minister on the innocence/guilt of VA and RB, foreign nationals and the Lithuanian judiciary. However, the DJ recorded that Professor Nekrosius was “unwavering in his firm view that judges in Lithuania act independently” and that he did acknowledge in evidence that there “had been occasions where certain politicians had made comments in the media which could be interpreted as endeavouring to put the judiciary under pressure”, but the judges had not succumbed. The DJ also noted that Professor Nekrosius was “ adamant” that the court system and structure in Lithuania was independent. The way that these matters are recorded indicates that the DJ was perfectly aware that Professor Nekrosius was being firm in maintaining his opinion despite repeated challenges in cross-examination and, also, that the witness had conceded some issues as a result of questions posed.[65]These findings are reflected in the conclusions that the DJ made on the arguments that the appellants would not obtain a fair trial and so suffer infringements of their Article 6 rights. In that section of the judgment the DJ compares the evidence of Professor Nekrosius and Dr Sulija. The conclusions based on his preference of the former’s evidence cannot be regarded as either ill-founded, irrational or unreasonable.[66]Mr Jones criticised the DJ’s “assessement” of the evidence of Dr Silvia Casale, the expert on prison conditions called by the appellants. Mr Jones submitted that the DJ did not “engage” with the serious concerns raised by Dr Casale. We disagree. The basis on which the DJ was considering the issue of the assurances that had been given by the Lithuanian authorities must have been that there was a plausible argument that there were substantial grounds for believing that there was a real risk of a breach of the appellants’ Article 3 rights without satisfactory assurances being given. In the light of that, the DJ had to consider the specific assurances given, including those relating to detention in a police station. He concluded they were sufficient.[67](2) The lap top incident: procedural defect. As already noted, this ground relates to the judge’s ruling when Mr Stanevicius gave evidence and was consulting notes on a computer and documents in front of him in the witness box. We have already set out the circumstances in which the issue arose. The particular question that Mr Jones had asked was peripheral to the issues before the DJ: viz. whether Mr Stankevicius was aware that there was a temporary freezing order on the Lithuanian assets of RB and his wife. The witness was trying to find information about what money RB and his wife were entitled to have under the terms of the freezing order.[68]Mr Jones submitted that it was clear that the witness was relying on or even reading from documents in front of him when answering the question about the temporary freezing order; therefore counsel cross-examining should have been permitted to see the document that the witness was consulting and the DJ was wrong to refuse both that request and a subsequent request for discovery and production of relevant, non-privileged documents.[69]In our view far too much has been made of this small incident which took place during a very long hearing before the DJ. He dealt with the matter perfectly properly. First, this was a peripheral matter. Secondly, the DJ dealt with the matter as soon as it was raised by counsel and told the witness, correctly, that he could not refer to documents on the lap top whilst being cross-examined unless they were in the court bundle, which the witness accepted. Thirdly, the judge also told the witness that he could not refer to hard copy notes whilst being cross-examined and the witness accepted that too. Fourthly, this is not a typical case of a witness using a witness statement or other document to refresh his memory in order to be able to answer a question in cross-examination. The document on the lap top that the witness apparently consulted was a part of what the witness called “ the materials on the case” in the proceedings in Lithuania and the witness said that he was not permitted to disclose those. The position was, effectively, that under the procedural law of Lithuania, these documents were confidential because they were “materials in the case”. We accept that there will be circumstances where the fact that a relevant foreign procedural law forbids disclosure of such a class of documents will not prevent an order for disclosure and production of those documents in an English court. Nonetheless, in all cases the judge must retain a discretion on whether to order disclosure of such documents, depending on the particular circumstances. (See by way of analogy, the discretion retained by a judge to refuse disclosure of confidential documents produced in the course of one arbitration, which are sought as relevant documents in subsequent arbitration proceedings: Dolling-Baker v Merrett [1990] 1 WLR 1205). Given the peripheral nature of the issue that was being pursued when this point arose, the judge was entitled, in the circumstances, to refuse to order any disclosure or production of the document being consulted by the witness. Lastly, the fact that a witness had consulted a document on one point does not entitle the cross-examining party to obtain production of all other documents in the possession of the witness, whether confidential or not. There was no justification for any further disclosure or production.[70]We reject these two aspects of of this last ground of appeal.

Disposal and a post script

[71]We have rejected each of the grounds of appeal by VA and RB. The appeals must therefore be dismissed.[72]As we have already noted, the hearing before the DJ lasted 14 days and 19 witnesses were called and there was written evidence from many more before him. The DJ had a very large amount of material to deal with. We appreciate that these extradition hearings were very important to the appellants and we understand why they and their lawyers wished to ensure that all relevant materials were before the DJ. However, as will be apparent from this judgment, it is our view that a great deal of irrelevant factual and “expert” material was put before the DJ and, as a result, an undue burden was placed upon him. There was also duplication of expert evidence.[73]We know that there are case management hearings for contested extradition hearings before a DJ. The issues need to be very carefully identified and formulated at that stage. The question of what evidence, both factual and expert, is to be called in relation to each issue, should be addressed. Only relevant evidence can be called. Expert evidence should be permitted only if it is necessary for the proper determination of particular issue to which it is addressed. There should be no duplication of experts.[74]The court has case management powers under Part 3 of the Criminal Procedure Rules. These should be rigorously used in contested extradition cases. We suggest that the Criminal Rules Committee considers new specific rules for contested extradition hearings, which could be added to Part 17 of the CPR. Appendix: sections 11, 13, 21 and 26 of the Extradition Act 2003.[11]Bars to extradition (1). If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of—(a) the rule against double jeopardy;(b) extraneous considerations;(c) the passage of time;(d) the person’s age;(e) hostage-taking considerations;(f) speciality;(g) the person’s earlier extradition to the United Kingdom from another category 1 territory;(h) the person’s earlier extradition to the United Kingdom from a non-category 1 territory.(i) the person's earlier transfer to the United Kingdom by the International Criminal Court. (2). Sections 12 to 19A apply for the interpretation of subsection (1). (3). If the judge decides any of the questions in subsection (1) in the affirmative he must order the person’s discharge. (4). If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20. (5). If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 21. .………………………………………………………………………………………….[13]Extraneous considerations (a). the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or (b). if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions. …………………………………………………………………………………………..[21]Human rights (1). If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2). If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3). If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued. (4). If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory. (5). If the person is remanded in custody, the appropriate judge may later grant bail. …………………………………………………………………………………………..[26]Appeal against extradition order (1). If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order. (2). But subsection (1) does not apply if the order is made under section 46 or 48. (3). An appeal under this section may be brought on a question of law or fact. (4). Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

Cited in 7 later judgments