Sigitas Janusevicius v Prosecutor General’s Office of the Republic of Lithuania [2021] EWHC 2346 (Admin)

[2021] EWHC 2346 (Admin)Case No CO/5504/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 th August 2021
Before
MR JUSTICE FORDHAM
Between
SIGITAS JANUSEVICIUSAppellantPROSECUTOR GENERAL’S OFFICE OF THE REPUBLIC OF LITHUANIARespondent
Émilie Pottle (instructed by Oracle Solicitors) for AppellantJonathan Swain (instructed by Crown Prosecution Service) for Respondent
Hearing Hearing date: 22.7.21
Approved Judgment

Introduction

[1]This is an extradition appeal. The Appellant is aged 31 and is wanted for extradition to Lithuania. That is in conjunction with a conviction EAW issued on 2 June 2015 and certified on 15 August 2017. The index offending, to which the EAW convictions relate, took place when the Appellant was aged 21 and was a serving prisoner in Marijampole prison in Lithuania. That is the same prison in which he is said, in particular, to fear incarceration following any extradition. Having said that, as Mr Swain points out, he could serve his sentence at another Lithuanian prison. The index offending was as follows. Between 20 September 2011 and 3 November 2011 the Appellant committed seven offences of swindling, involving mobile phone calls from the prison, falsely claiming to be calls from the police and falsely reporting to parents that they needed to make payments in order to avoid being sued in relation to damage which the ‘police’ were saying had been caused to third parties by their children. Then on 8 March 2012 the Appellant committed assaults on a prison officer. These started with a punch to the face in a distribution room so that the prison officer hit his head against the wall. That was followed up in the corridor with a further punch to the face, and kicks. The assaults left the prison officer with a broken nose. The cumulative custodial sentences for those offences, as ultimately combined by a Lithuanian court order on 14 April 2015, were 7 years 4 months. All of that time remained to be served when the Appellant was arrested in conjunction with these extradition proceedings on 21 September 2017. Since then, he has been on remand, and will by now have ‘clocked up’ nearly 4 years qualifying remand with a consequential reduction in time to serve in Lithuania if extradited. Extradition was ordered by DJ Baraitser on 21 November 2017 after an oral hearing at which the Appellant gave oral evidence and was cross-examined. One the reasons for the delay in dealing with this appeal against that determination is that this was one of many cases where the appeal was stayed pending resolution of the ‘lead case’ on the issue of Lithuanian prison conditions (inter-prisoner violence) and Article 3 ECHR: Bartulis v Panevezys Regional Court (Lithuania) [2019] EWHC 3504 (Admin), which the Divisional Court decided on 12 December 2019. Bartulis will feature heavily in the Article 3 analysis which follows.[2]The Appellant has permission to appeal on Article 3 ECHR, together with permission to amend to raise that ground, both permissions having been granted by Steyn J on 19 February 2020. Steyn J also granted an extension of the representation order to permit a psychiatrist’s report. A report was duly provided by Professor Forrester (then Dr Forrester) on 6 September 2020. The Respondent issued Further Information on 17 November 2020. Professor Forrester wrote an addendum report on 30 June 2021. Steyn J gave permission for fresh evidence, including medical records and the 2018 and 2019 reports of the CPT (Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment), which had been considered by the Court in Bartulis. An application was before me to amend the grounds of appeal to add a section 25 ground of appeal (oppression by reason of mental health-related suicide risk), and for permission to appeal on that ground. Neither of those permissions were resisted and I granted them at the hearing. It was common ground that I should consider all the materials and written submissions that have been put before this Court, granting all necessary permissions and extensions of time, as I also did at the start of the hearing. The mode of hearing was in-person at the Royal Courts of Justice.

The Article 3 Ground of Appeal

[3]This is the ground of appeal for which Steyn J gave permission to appeal. The basis on which permission to appeal had been sought and was granted was the argument that the analysis in Bartulis did not answer the Article 3-compatibility issue arising in the present case, based on ‘distinguishing features’ and ‘special risk factors’ concerning risk of exposure to harm in prison in Lithuania, in the light of which extradition would be incompatible with Article 3. Bartulis[4]In Bartulis there were before the Court three Appellants and five EAWs, two of which were conviction EAWs. Arguments were raised in relation to prison conditions, in the context of inter-prisoner violence. Features which the materials and the Court considered in conjunction with inter-prisoner violence and Article 3 included matters such as: the ‘caste system’ in Lithuanian prisons; the use of open ‘dormitory-style’ accommodation; and the prevalence of drugs and drug use. At least one of the Appellants had previously been in prison in Lithuania and said he had personal experience of inter-prisoner violence as well as witnessing prisoner suicides and serious acts of self-harm (see paragraph 146). At the heart of the case were the CPT reports of 2018 (see paragraph 30) and 2019 (paragraph 36), together with the response of the Lithuanian authorities to each of those reports (paragraph 48 and 51). The Court also considered assurances given by the Lithuanian authorities (paragraphs 52 to 57), including in response to a request made by the Court itself on 15 July 2019 (paragraph 10). The Court received evidence from Mr Liutkevicius, the Chief Legal Officer of the Human Rights Monitoring Institute (paragraph 19, 58 to 65), and from Dr Sakalauskas, a senior academic lawyer attached to the Lithuanian Institute of Law (paragraphs 66 to 80). There were a range of further materials (paragraph 81). In the Divisional Court’s judgment the relevant Article 3 legal principles were identified and set out (paragraphs 82 to 93) (and so I do not set them out again here). The Court set out the position advanced by the Appellants (paragraphs 51, 94 to 99) and that advanced by the Respondent (paragraphs 51, 100-112) and then the Court’s conclusions (paragraphs 113-127). The Court explained that the CPT report 2019 constituted ‘objective, reliable, specific and up-to-date evidence’ at the time of that assessment (see paragraph 119), applying the legal principle which the Court had earlier identified (paragraph 85), in relation to the problems regarding the caste system and inter-prisoner violence (paragraph 118), including the implications of the use of dormitory style accommodation (paragraph 117). The evidenced the Lithuanian authorities’ response to the problems, in particular an Action Plan (paragraph 126), was held to be an adequate response (paragraph 121). The consequence was that the presumption of compliance had not been displaced (paragraph 126). That meant that reliance on assurances was not needed (paragraph 127). In consequence of that assessment, the Article 3 arguments failed (paragraph 136). The Court went on to deal with a discrete section 25 point raised by Mr Bartulis, one of the Appellants (paragraph 137 to 150).

Departing from Bartulis?

[5]I asked Ms Pottle at the hearing whether she was inviting this Court, in this case, to depart from the conclusions in Bartulis, or from the analysis necessarily underpinning those conclusions, and if so on what basis. That would have been a striking position. The present case (and many others) had been stayed pending the resolution of Bartulis as a test case on the Article 3 issues there addressed. Bartulis was heard and decided by a Divisional Court. No document before the Court invited departure from Bartulis. That was not the basis on which permission had been granted by Steyn J. This case had been listed for a single High Court judge in light of the issues being raised, to which the time estimate related as did the Respondent’s defence of the appeal. Ms Pottle confirmed that her appeal and submissions were based not on seeking to depart from Bartulis, but on seeking to distinguish it. In her oral submissions, she left the position in this way. She ‘did not concede’ the correctness of Bartulis. She submitted that the Court would be ‘entitled’ – pursuant to the principle in Ex p Tal – to depart from the judgment of the Divisional Court in Bartulis if ‘convinced that it is wrong’. She also suggested one possible ‘change of circumstances’. That was the withdrawal of assurances which were before the Court in Bartulis. But that cannot be a reason for departing from the analysis in Bartulis, since that analysis itself expressly explained that it was not dependent on assurances (Bartulis paragraphs 126-127).[6]Ms Pottle placed before the Court, and commended, the judgment of the High Court of Northern Ireland delivered on 21 May 2021 in Michailovas v Republic of Lithuania [2021] NIQB 42 (McCloskey LJ and McFarland J). She recognised that the analysis of that Court did not turn on any ‘distinguishing feature’. Rather, it involved a Divisional Court of the High Court of Northern Island having reached the opposite conclusion from that arrived at by the Divisional Court of the High Court of England and Wales in Bartulis. Ms Pottle also referred to an order granting permission to appeal on 8 July 2021 in another Lithuanian case in this Court: Kaliackas CO/4393/2020. Ms Pottle told me that she had understood that case to be squarely raising the issue of the correctness of Bartulis in the light of Michailovas, and she showed me what Counsel in Kaliackas had told her about that. This explanation presented a conundrum. This Court’s Order granting permission to appeal in Kaliackas, which was placed before me, expressly refers to permission to appeal on the Article 3 issue as raised in paragraph 17 of the Perfected Grounds of Appeal in that case. I have seen that document. The argument being articulated there (in paragraph 17, read with paragraphs 16i and 29-30) is an argument about the prospect of a person extradited on a conviction EAW being detained for a period (10 days) in a remand prison in circumstances where the extant general assurance relating to remand prison conditions is limited to accusation EAW cases. The perfected grounds of appeal in Kaliackas describe the Article 3 issue there raised as the same as in other pending cases including Bernotas CO/393/2020. I accept that Ms Pottle has been told that Counsel in Kaliackas considers the permission to appeal has been granted to allow a full-frontal attack on Bartulis in the light of Michailovas. I cannot, and need not, resolve the conundrum. There has never been a full-frontal attack in the present case.[7]In the present appeal, the Appellant’s team has not advanced or developed, in writing, or even orally, any positive argument or direct attack on the judgment in Bartulis. I have recorded that the correctness of Bartulis was ‘not conceded’. But that does not constitute the mounting, still less the development, of an argument impugning Bartulis. There has been no positive attack in the present case. The Respondent has no such attack to which to respond. The Court has no such attack to consider. Ms Pottle has not provided the Court with a reasoned argument analysing why the judgment in Michailovas shows the analysis in Bartulis to be wrong. Mr Swain submitted that I am in any event duty-bound as a single judge to follow the judgment of a Divisional Court. He may well be right. I have not heard argument on that issue, nor been shown the relevant authorities about single judges and Divisional Courts. It could not be right or just to entertain a collateral attack on a judgment of a Divisional Court in a test case without any articulated written or oral submissions, to which the Respondent could have prepared to respond. Even if, in theory, a single judge of the High Court could depart from the judgment of a Divisional Court in a test case, I would not do so in the circumstances of this case in relation to Bartulis. In all the circumstances, I am satisfied that the appropriate course in the present appeal is to proceed on the basis that Bartulis is correct. Should it transpire that there is on foot a test case involving a full-frontal attack on Bartulis, and involving Lithuanian cases once again being stayed, then there might be consideration under the mechanism in the rules in exceptional circumstances to re-open an appeal to avoid real injustice (CrPR 50.27).

Overcrowding

[8]This topic was touched on, though it was not one of the three bases put forward by Ms Pottle for distinguishing Bartulis and finding that extradition in this case would be incompatible with Article 3. There are well-established principles relating to Article 3 and prison conditions regarding overcrowding and involving minimum floor-space per prisoner. Bartulis was not a case about overcrowding and minimum floor space, as was pointed out in Gerulskis v Prosecutor General’s Office, Republic of Lithuania [2020] EWHC 1645 (Admin) at paragraph 38. Ms Pottle showed me that a general assurance guaranteeing 3m² of floor space (recorded in Bartulis at paragraph 52) was withdrawn on 3 April 2020 and that the only present assurance as to guaranteed floor space assurance is one relating to remand prisons and limited to accusation EAW cases. That assurance is described in Gerulskis at paragraph 35. It features in the perfected grounds of appeal in Kaliackas which I have discussed above. As Mr Swain points out, the adverse conclusion triggering the need for a floor space assurance, by reason of the loss of the presumption of compliance, had arisen in the context of Lithuania and remand prisons: see Gerulskis paragraph 29. That is why an argument has been raised in some cases including Kaliackas and Bernotas – not the present case – about the prospects of 10 days in a remand centre, in a conviction EAW case, without an operative floorspace assurance. Ms Pottle did not submit that the position regarding assurances and floor space gives rise to an Article 3 incompatibility in the context of Lithuanian prisons and conviction EAWs.

Three suggested bases for finding Article 3 incompatibility

[9]I turn to the arguments which were developed in writing and orally by Ms Pottle. She submits that there are three bases on which(i) the general conclusions in Bartulis does not provide the answer to the present case and(ii) on an assessment of the relevant materials there are substantial grounds for believing that the Appellant runs a real risk of being subject to inhuman or degrading treatment if extradited. I shall identify the argument in relation to each of the three bases. I will then discuss each of them, considering them individually and cumulatively. But it will be helpful, before doing any of that, if I first identify some key features of the present case.

Six features of the case

[10]I identify here six key features of the case on which particular emphasis was placed by Ms Pottle. They are as follows. (1) The first feature is that the Appellant was embroiled in gang-related criminal activity, within the Lithuanian prison system, which activity is known to be linked to coercion and violence. The telephone scam with which he was involved in 2011 is evidenced by the description in the EAW itself of his convictions for the telephone scam. Telephone scamming from inside Lithuanian prisons is an activity expressly described in the 2018 CPT Report (paragraph 44), in discussing the extent of inter-prisoner violence at Marijampole prison, the same prison where the Appellant was detained at the time of his criminal conduct. As the 2018 CPT Report says:
“Physical violence between inmates, extortion and coercion to commit the offences (e.g. telephone scams…) were widespread and accepted by prisoners, not only the most vulnerable ones, as being inevitable”
. That was the very activity in which the Appellant has previously been embroiled and I shall return below to what he says about involvement. (2) The second feature is the evidence that the Appellant was stabbed in 2013, in a gang-related incident arising out of criminality and debt, which incident took place outside Marijampole prison, after the Appellant was released. This is a point recorded by the District Judge in her judgment as: an attack in the street with a knife; carried out by a gang member claiming that the Appellant owed to gang money; which incident the Appellant did not report because in the event of any return to prison he would be considered by other inmates to have ‘broken prison law’. As the District Judge recorded, a Home Office medical report had identified a scar and recorded the Appellant’s narrative about being attacked by a gang member. (3) The third feature is the evidence that the Appellant is a former long-term intravenous drug user. That is something reflected in medical records which describe his previous heroin use. It is supported by the diagnosis of the Appellant’s opiate dependency and by the assessment of his need for opioid substitution medication and treatment. (4) The fourth feature is the evidence that the Appellant tested positive in 2017 for hepatitis C infection. That is recorded as having successfully been treated. But it is relied on as a vulnerability, as well as corroborating his description of previous heroin use. (5) The fifth feature is the evidence that the Appellant’s long-term intravenous drug use had, as its origin, forced injection with heroin by gang members within the ‘caste system’ of the Lithuanian prison system. The medical records refer to the Appellant as having reported in January 2017 that he had started using heroin aged 19, back in Lithuania, whilst in prison. The letter of clinical psychologist Dr Desai (3 December 2019) records the Appellant reporting his experience of multiple assaults while in prison in Lithuania, the stabbing outside of prison and other events including:
“being forcibly injected with heroin multiple times” in prison. All of those events are identified in Dr Desai’s letter as events linked to the PTSD of which the Appellant has been diagnosed. The letter also records that it is not considered by Dr Desai that the Appellant is exaggerating this or the other events which he describes. The forcible injection with drugs links to the 2019 CPT Report. It records that some prisoners, especially at Marijampole prison, had reported that they had not been drug users prior to arrival of the establishment but had been “forced to take drugs by prisoners belonging to the informal hierarchy, in order to make them dependent on drugs provided by those prisoners, and to make them run into debts which they would be forced to reimburse, either with money or with other services”
. A proof of evidence provided for this appeal involves a graphic description by the Appellant of being injected with drugs, forcibly, in that way. (6) The sixth feature of the case is the Appellant’s diagnosis. There are three diagnosed conditions: PTSD; opioid dependency; and mixed depressive and anxiety disorder. They are linked to his experiences, including the other features: (1) to (5).

History of gang-targeting: the argument

[11]I turn to identify the first of the three bases on which Ms Pottle says there are distinguishing features – special risk factors – which distinguish Bartulis and support a finding that extradition would be incompatible with Article 3. It concerns the evidence as to previous targeting by a criminal gang. This argument emphasises features (1), (2) and (5) in particular. The essence of the argument, as I see it, comes to this. The Divisional Court in Bartulis was considering inter-prisoner violence. But it was doing so in general terms applicable to any requested person. It was not doing so in the particular context of an individual Appellant who(i) had been the subject of specific ill-treatment at the hands of a gang and(ii) would be at risk of further such ill-treatment from that gang when incarcerated following extradition. That is this case. The evidence in this case is that the Appellant was stabbed in 2013. That stabbing took place outside Marijampole prison, where he had been detained. The stabbing as described is corroborated by the scar which was identified in the Home Office assessment (23 March 2017). The evidence includes a proof of evidence from the Appellant, provided for this appeal, which describes this as an attack by gang members, after having been released from prison. That proof of evidence also describes the Appellant’s role in the swindling operation in prison, evidenced by the EAW, as having been following orders and done to protect himself from violence. He says he followed orders from those in the ‘top rank’ of the caste system, in order to survive and stay in the ‘middle rank’ avoiding the ‘bottom rank’ whose members were subjected to violence. The proof of evidence for this appeal also contains a description of the forcible injection with heroin in prison. That and the scamming are linked to what is said in the CPT Reports. There is also support in what the clinicians report. That includes Professor Forrester’s description of the stabbing, as narrated to him by the Appellant. Dr Desai’s letter refers to the forced injections and stabbing, linked to the diagnosed PTSD which has been diagnosed. Linked to all of this is the problem of the use of ‘dormitory-style’ accommodation in Lithuanian prisons, and the limited amount of single cell accommodation, with the consequences that flow regarding risk from inter-prisoner violence. In the light of all the evidence, there are substantial grounds for considering that the Appellant, if extradited, would be at real risk of Article 3 ill-treatment by way of a particular risk from inter-prisoner violence linked to the previous targeting. At the very least, there is a duty to ‘determine specifically and precisely’ that question, which duty calls for a specific and further response from the Respondent before there could be any extradition. That is the first basis.

History of intravenous drug-use: the argument

[12]The second basis concerns the evidence as to history of intravenous drug use. This argument emphasises features (3)-(6) in particular. The essence of the submission, as I see it, comes to this. The Divisional Court in Bartulis was considering inter-prisoner violence, as well as doing so in general terms applicable to any requested person. It was not doing so in the particular context of an individual Appellant who was and is at particular risk in the light of an evidenced history of intravenous drug use. The evidence in this case is clear. The medical records confirm that the Appellant is a long-term heroin user. It is this drug use which led to the Appellant’s documented diagnosis of Hepatitis C in September and October 2017. It is this history of drug use and dependency that is the basis of the assessment by the clinicians regarding the medical treatment that would be necessary for the Appellant in a Lithuanian prison if extradited: in particular, the opioid dependency treatment described as needed by Professor Forrester. The history of drug use is linked to the evidence of the forced heroin injections which took place in prison: a practice which, as explained, is substantiated by the CPT report of 2019. The problems are these. Although it was treated effectively, the Hepatitis C diagnosis itself may put the Appellant at greater risk of infection. Professor Forrester identifies the Appellant’s opiate dependency and need of opioid dependency treatment. Although Professor Forrester accepts that the Respondent’s Further Information (17 November 2020) confirms that this treatment would be available in prison in Lithuania, and although various measures are documented as being taken by the Lithuanian authorities in the context of prevalent drug use in Lithuanian prisons, what is conspicuously absent is the preventive programme of needle exchange, as recorded in the 2019 CPT report. There is no evidence before the Court of any such preventative programs being implemented. Furthermore, the Further Information stating the availability of opioid dependency treatment should not be accepted by the Court in light of the CPT reports. They describe the unavailability of that treatment and the under-resourcing of health services for prisoners generally. That justifies rejection of the Further Information based on the “overall assessment of all the information available” described in Zabolotnyi v Mateszalka [2021] UKSC 14 [2021] 1 WLR 2569 at paragraph 42. In the light of all the evidence, there are substantial grounds for considering that the Appellant, if extradited, would be at real risk of Article 3 ill-treatment by way of a particular risk to his health linked to his previous intravenous drug use. At the very least, there is – again – the duty to ‘determine specifically and precisely’ a question, which duty calls for a specific and further response from the Respondent before there could be any extradition. That is the second basis.

Mental health conditions: the argument

[13]The third basis concerns the evidence as to mental health conditions. There is an overlap with the section 25 argument about and oppression by reason of mental health-related suicide risk, a ground with which I will deal separately below. The Article 3 ‘mental health conditions’ argument emphasises feature (6) in particular. The essence of the submission, as I see it, comes to this. The Divisional Court in Bartulis was considering inter-prisoner violence. It was not considering the position of individuals – still less an individual – at particular risk of suffering in the light of their mental health conditions. The approach to mental health conditions, imprisonment and Article 3 is explained and illustrated by Aswat v United Kingdom App. No. 17299/12 paragraphs 49-58. On the evidence, the Appellant has specific and serious mental health problems. His mental health conditions have, moreover, deteriorated dramatically while at HMP Wandsworth. He has been diagnosed with severe PTSD, as set out in Dr Desai’s letter. The symptoms of that are recognised in the evidence as clinically consistent with the events he reports to have happened while in prison in Lithuania, including the multiple assaults, the multiple forcible injection with heroin and the stabbing outside prison. Professor Forrester’s first report explains that the Appellant presents with evidence of three main conditions: PTSD, depression and opiate dependency. Although Professor Forrester accepts that the Respondent’s Further Information (17 November 2020) confirms that psychiatric medication and psychological therapies would be available in prison in Lithuania, what is presently missing is a concrete treatment plan for the Appellant identified in advance. Professor Forrester gives an unimpeachable expert clinician’s opinion about the need for such a plan. There is then another serious further problem, about the need for a single cell and in any event not ‘communal’ accommodation. In HMP Wandsworth – based on the informed recommendation of relevant clinicians – it has been recognised that the Appellant has needed what Dr Desai describes as “one of the very limited number of single cells in HMP Wandsworth due to his mental health difficulties”. The recommendation which was actioned in the prison gave as the reason “mental health issues, anxiety issues with sleep and PTSD”. It applied as the criterion:
“whether the prisoner or potential cellmate would be at risk if he did not have a single cell”
. A subsequent recommendation document described:
“panic attacks, emotion regulation difficulties (resulting in aggression) and severe anxiety”
. In this respect, there is the evidenced use of ‘dormitory-style’ accommodation within the Lithuanian prison system, and the absence of any assurance specific to the Appellant that he would and could be provided with a single cell. These considerations mean that the Article 3 threshold is crossed. Alternatively, they mean that further specific information is required before extradition can be held to be compatible with his Article 3 rights. That is the third basis.

My conclusion on Article 3

[14]I have concluded that the three bases put forward – whether individually or in combination – do not support the conclusions:(a) that extradition would be incompatible with Article 3 ECHR; or(b) that some further enquiry, information or assurance is needed on that question. I will explain below why I have arrived at that conclusion. Before turning to each of the three suggested bases for finding Article 3 incompatibility I need to first address some points about the evidence on this appeal.

Points about the evidence on appeal

[15]As Mr Swain points out, there are some evidential weaknesses in relation to the Appellant’s position before this Court, particularly in relation to the gang-targeting point. As I see it, there is a general problem and a specific problem.(1) The general problem is this. The Appellant and his then representatives did not argue against extradition, before or at the hearing before the District Judge, on the basis of some risk in prison arising from a criminal gang seeking reprisals, and against which the Lithuanian authorities would fail to provide legally adequate protection. His original proof of evidence, relied on for the hearing before the District Judge, did state: that a group in the prison was involved in fraud; that the group had accused him of owing them money in relation to fraud-related activities; that, having been released from prison by mistake, he was attacked by a gang member in the street saying that he owed money in relation to fraudulent activities; that he strongly believed he would be attacked by these people if he returned to Lithuania; and that the gang could now be ‘in any prison in Lithuania’. But these matters – and others which did not feature, like the forced injection with heroin – were not raised in a way which meant findings of fact were relevant and appropriate. If an argument for resisting extradition had been put forward, on the basis of such matters, it could have been tested with cross-examination, and the District Judge would have made appropriate findings of fact on controversial matters. That has not happened.(2) The specific problem is this. In his further proof of evidence for this appeal the Appellant states that he was following orders in committing telephone scamming; he says nothing about giving orders. But the very detailed description of the conviction, following trial, was that he was found guilty by the Lithuanian criminal court of scamming in circumstances where: he had “organised and prepared the plan of criminal offence”; he “provided the tools for criminal offence – mobile phones with SIM cards”; he “organised a group” of people serving their prison sentences; he “led them, divided their roles and coordinated their activities by giving advance instructions”; he “ordered” his fellow prisoners to make the calls on “his instructions”; and he “organised” the distribution of the funds received through the scam. In relation to the specific problem, there can – in my judgment – be no legitimate basis for going behind the detailed description in the EAW. I approach this appeal on the basis that this description is accurate. What is left is Ms Pottle’s invitation that I treat the evidence overall as supporting the conclusion that the Appellant had an ‘intermediate role’: he did the things described in the EAW, but he was also receiving orders from the gang leaders under whose ultimate control he was.(3) In order to test the analysis, I have approached this case by taking the Appellant’s evidence in relation to the general and the specific problems at its highest, while not going behind the detailed description in the EAW. Having done so, I have concluded that none of the three bases advanced can succeed, individually or in combination. In those circumstances, I do not need to confront any further issue as to how to weigh evidence which has not been tested by oral evidence and with cross-examination as it could, in principle, have been.

History of gang-targeting: discussion

[16]Taking the evidence at its highest, the case regarding gang-targeting has the following key contours: the Appellant has a history with a gang in Lithuania; that gang had members at Marijampole prison with him, as well as outside it; the gang was able to operate within the ‘caste system’ in Lithuanian prisons; the gang was involved in multiple forced injections of the Appellant with heroin; the gang was instrumental in the Appellant becoming embroiled in the telephone scam described in the EAW and had a controlling influence over him; the gang was involved in violent pursuit of the Appellant including the stabbing in 2013; the Appellant has experienced the violence and fear relating to the gang, and to being in prison; there is the real prospect that the violence and threat of violence will resume; there is the real prospect that the vendetta will be resumed; there is the real prospect of further violence, whether because of or as exemplified by the past history; the Appellant needs protection by the Lithuanian state authorities from that violence, risk and threat; and in relation to all of this there is an inadequacy of state protection by those authorities. That last point – concerning inadequacy of state protection – is important. As Ms Pottle rightly accepts, the ultimate analysis is on failure of state protection. The relevant principle in the context of Article 3 and violence by ‘non-state agents’ is that which was recorded in Bartulis at paragraph 103. It concerns state failure to provide reasonable protection, through a failure by the Lithuanian authorities in their positive duty to provide reasonable protection against criminal acts. Ms Pottle supports her arguments about the inadequacy of state protection with the CPT Reports of 2018 and 2019, including: the description of inter-prisoner violence, gangs, violence, drugs, phone scams, forced injections, and so on.[17]In my judgment, the argument based on the ‘history of gang-targeting’ flows directly into the stream of analysis in the judgment of the Divisional Court in Bartulis. Vulnerability to being targeted for violence at the hands of a gang in prison is not a ‘special risk factor’ falling outside the analysis in Bartulis and capable of producing a conclusion of Article 3 incompatibility. In Bartulis, inter-prisoner violence was at the heart of the Article 3 arguments being advanced, at the heart of the materials relied on and being considered, and at the heart of the Court’s analysis. The features relied on in the present case undoubtedly bring to life and into sharp focus, by reference to concrete past events, the phenomenon of inter-prisoner violence at the hands of a gang within the caste system in Lithuanian prisons. But that was a phenomenon which the Court in Bartulis was addressing. What was necessarily something falling within the scope of the evidence and assessment in Bartulis was the phenomenon of prevalent inter-prisoner violence. That is violence arising in the context of the ‘caste system’, in the context of the patterns of criminality within that system, and in the context of events which have arisen, whatever the ‘trigger’ for the inter-prisoner violence. The assessment in Bartulis was not limited to one kind of prisoner facing one species of inter-prisoner violence. It was an assessment as apt to deal with an extradited individual with a ‘pre-existing’ trigger, just as it dealt with an extradited individual whose trigger would lie in the future. Bartulis was not distinguishing between those who would fall foul of the gang violence in the caste system for the first time on extradition and those who would do so again. In the end, in the context of violence from ‘non-state agents’ the question was and is one of legally adequate state protection. The point of the test cases in Bartulis was to consider the phenomenon of inter-prisoner violence, with the prevalence and seriousness as observed and experienced within the Lithuanian prison system, and to examine the legal adequacy of the response of the Lithuanian authorities to that phenomenon. The Court did so, in light of the CPT reports and the other evidence. The features relied on in the present case ultimately engage the same question – as to the duty of state protection and the sufficiency of that protection – as was the necessary focus in Bartulis in a ‘non-state agent’ context. Bartulis provides the secure platform for this aspect of the present case. The evidence put forward on behalf of the Appellant does not, in my judgment in the light of Bartulis, serve to displace the presumption or give rise to any real risk on substantial grounds of Article 3 ill-treatment.

History of intravenous drug use: discussion

[18]Nor, in my judgment, does the evidence relating to the history of intravenous drug use do so. This point, also, flows directly into the Bartulis assessment. It is not a ‘special risk factor’ outside the scope of that assessment. The prevalence in Lithuanian prisons of drugs, drug-related violence and drug-related health considerations, were all very clear features of the assessment in Bartulis. The Court had before it the very CPT reports on which reliance is placed. The Court was specifically concerned with the adequacy of the Lithuanian state authorities’ response. The Court specifically referred (Bartulis paragraph 42) to the statements in the 2019 CPT Report: about “the omnipresence of drugs in prisons” in Lithuania; and about the serious risk of prisoners becoming drug-dependent and contracting HIV and hepatitis C in prison by sharing injecting equipment. The Court discussed the Lithuanian Government’s responses, which did not – on the evidence before that Court or before me – include a needle exchange programme. There were, rather, measures including (Bartulis paragraph 49): plans for equipment to decrease the flow of drugs into prisons; raised frequency of drug testing of inmates; more education and training as to the effect of drugs on the spread of transmissible diseases; a proposal to increase the number of prisoners who can be transferred to rehabilitation centres; stepping-up of anti-viral therapy and testing for hepatitis C; and speedier treatment where results are positive. The Divisional Court, in summarising the arguments of Counsel for the Appellants in Bartulis, recorded key points made relating to “illicit drugs in the prisons”, the “continuing lack of control by the authorities’ and the expression of “more alarm than ever as to the prevalence of drugs” (paragraph 98). The Court thus had the same reports on which Ms Pottle relies. It considered them, as well as the response to them. The Court plainly had well in mind the points being made about the prevalence of drugs and the implications for those being extradited to life in Lithuanian prison. Ms Pottle is essentially taking particular strands or elements and inviting this Court to revisit an important part of the discussion and analysis in Bartulis. The logic, if she is right, is that the Bartulis conclusion does not hold for a person facing extradition and the prospect of intravenous drug use in a Lithuanian prison. In my judgment, it is clear that the opposite is true. Had the well-documented points about needle-exchange programmes been a sufficient basis to displace the presumption of compliance the Court in Bartulis would have said so. It would have analysed the question of risk in light of whether there were ‘past’ or only ‘future’ triggers: the prospect of being a future intravenous drug user; or the history of having been a past intravenous drug user. So far as the opioid dependency treatment is concerned, Professor Forrester accepts – rightly, in my judgment – that, on the evidence, such treatment would in principle be available for the Appellant if extradited and incarcerated. Ms Pottle understandably emphasises the statement in the 2019 CPT report that:
“Opioid substitution treatment was still not available in prisons visited”, so that “methadone maintenance treatment was… discontinued after… [being] transferred to a prison”
. That was an observation arising out of visits which took place in April 2018. However, the June 2019 response of the Lithuanian Government to that report recorded that:
“measures related to the medical treatment (substitution therapy) for addictive disorders… are included in the Inter-Institutional Action Plans”
. The Lithuanian authorities’ October 2018 Action Plan recorded the strengthening of measures, including:
“to ensure possibilities to continue application of opioid substitution treatment for inmates who started participation in substitution or treatment before their arrival to correctional institution”
. The Further Information of November 2020 in the present case refers to:
“all necessary treatment… for addictive diseases” and states: “If a person receiving methadone substitution treatment for opioid dependence enters a custodial institution, that treatment is continued”
. I cannot accept the submission that the references in the CPT reports, including those to under-resourcing, provide a proper basis on an “overall assessment of all the information available” to warrant rejecting that clear statement directly on point.

Mental health conditions: discussion

[19]So far as concerns the mental health conditions point, different considerations arise. This point does not flow into the Bartulis assessment. Just as Bartulis was not a test case concerned with the issue of overcrowding, so too it was not a test case concerned with prison and those with mental health conditions. Indeed, the mental health condition of Mr Bartulis was the distinct issue addressed by the Court at the end of the judgment, by reference to section 25: see paragraphs 137 to 150 of Bartulis. I agree with Ms Pottle that a good example of an individual with ‘special risk factors’, to whom the general conclusions in Bartulis would not provide the answer, would be an individual with a particular medical or mental health condition, giving rise to Article 3 concerns. Unlike gang-related violence and the perils arising out of intravenous drug use – which were central features of the test case argument, materials and analysis in Bartulis – special considerations relating to medical conditions and mental health conditions were not, except for Mr Bartulis’s separate section 25 point. I will come on to consider separately the section 25 ground and the risk of suicide by reason of mental health conditions, raised under section 25. If there is oppression by reference to the suicide risk, Article 3 is not needed. If there is not, Article 3 will not assist in this case, and Ms Pottle was right not to suggest that it could. The same would be true of Article 2 (the right to life). I therefore need to deal here with the points made in the present case, in relation to Article 3 and mental health conditions, by reference to Aswat. The judgment in Aswat recognises (at paragraph 50) that the detention of a person who is ill may raise issues under Article 3 and that the lack of appropriate medical care may amount to treatment contrary to Article 3. The elements to consider, in the context in particular of those who are mentally ill and have associated vulnerabilities, include the mental health condition and the adequacy of medical assistance and care provided in detention.[20]I have dealt already with the availability of opioid substitution treatment. Leaving aside the issue of suicide risk to which I will come, the point made by Professor Forrester about a ‘concrete treatment plan’ cannot, in my judgment, stand as a cogent criticism capable of engaging the Article 3 threshold, in light of the clear statements in the Further Information of November 2020. It is true that the authorities have not identified a prior individualised plan for the Appellant. But what they have done, in answering questions which arose out of his case and needs, is to provide information which confirms that all relevant medication and therapy is available, and which also confirms that an individualised plan for provision and continuation of necessary treatment and therapy will be promptly addressed as soon as the Appellant is received within the Lithuanian prison system. The Further Information confirms the availability of the relevant psychiatric medication and psychological therapies, as Professor Forrester accepts. It states that the “health assessment procedure will be performed as soon as [the Appellant] arrives in Lithuania”; that “all necessary treatment will be prescribed by medical specialists”, including “for addictive diseases”, and including “by psychiatrists (if medication treatment is required)”. It also recognises the importance of the relevant Lithuanian specialists getting “acquainted with the previous assessment of [the Appellant]’s health, the treatment applied and the recommendations of medical specialists in order to continue the prescribed treatment or apply similar treatment”.[21]My answer to this part of the case is congruent with the answer which was given by the Divisional Court in Bartulis (at the end of paragraph 149) in relation to Mr Bartulis and section 25. The Court explained, in relation to mental health conditions, that Lithuania was “presumed to provide adequate healthcare” and that the evidence filed by the Lithuanian authorities had “confirmed” that “full medical care” is “guaranteed for inmates under the law”. There was “no reason to consider that” Mr Bartulis would “not be provided with adequate healthcare, if required” and there was “no evidence that the Lithuanian authorities do not provide appropriate preventative measures”.[22]The fact that the Appellant has, for reasons related to mental health conditions, had one of the single cells in HMP Wandsworth does not mean that the prospect of ‘dormitory-style’ accommodation in a Lithuanian prison would cross the threshold for Article 3 purposes. In fact, as Mr Swain points out, the evidence accepted by this Court in Gerulskis at paragraph 35 records that at Marijampole prison a renovated block opened in 2016 and has capacity of 87 places in ‘cell-type’ accommodation. Putting that information alongside what is said in the Further Information, the authorities do have the resources to provide a cell, should it be necessitated by the Appellant’s mental health conditions, which conditions will be assessed promptly and addressed using those resources as appropriate. It follows, in my judgment, that on this issue – although the test case of Bartulis is distinguishable – extradition would be compatible with Article 3 ECHR and there is no need for further information or reassurance to be obtained.

Postscript: obtaining further information

[23]I add here that Ms Pottle submitted as follows: were the Court persuaded on any or all of her three bases for finding Article 3 incompatibility, this is not a case in which the Respondent should be permitted another opportunity to answer questions or provide further information. She emphasised the prolonged nature of the process and the harmful uncertainty for the Appellant, together with the opportunity that the Respondent has had – and to some extent has taken – to provide further information. That was the argument. In the circumstances, the point does not arise, but I will explain what I made of it. Had I been persuaded by Ms Pottle by reference to any or all of the points she advances, I would have concluded that the presumption was displaced and I would have regarded myself as duty-bound to request urgent supplementary information relating to the points which I had identified, pursuant to the duty described in Re Aranyosi [2016] QB 921 paragraph 95, before making a final finding on Article 3 incompatibility. The Section 25 Ground of Appeal The section 25 argument

The Section 25 Ground of Appeal

[24]I turn to the second ground of appeal. This is the ground which was not before Steyn J but on which I have given permission to amend and permission to appeal. On this ground Ms Pottle submits, in essence as I see it, as follows. It would, by reason of the clear mental health-related suicide risk in this case, be oppressive to order the Appellant’s extradition. On an overall judgment of the facts, the high threshold for section 25 oppression is met. There is a substantial risk of the Appellant succeeding in committing suicide, whatever steps are taken, linked to his mental health condition. The risk of suicide is one arising from his mental health condition, removing his capacity to resist the impulse to commit suicide, so that suicide is no longer a voluntary act. The risk is sufficiently great to result in the finding of oppression. This reflects the relevant legal principles, as identified in Bartulis – where a section 25 issue was raised by Mr Bartulis – at paragraphs 147 and 148, being derived from Turner v United States [2012] EWHC 2426 (Admin) at paragraph 28 and Wolkowicz v Poland [2013] EWHC 102 (Admin) [2013] 1 WLR 2402 at paragraph 10. It is a conclusion which arises by reference to clear evidence within the area of expertise of Professor Forrester, which there is no basis for the Court to reject. Professor Forrester makes these key points.(1) An extradition order made on an unsuccessful appeal to this Court would be likely to mean that the Appellant would be at a high risk of suicide.(2) It is right that previous statements relating to taking his life if he were extradited were statements reflective of a ‘voluntary’ act.(3) However, the Appellant’s mental health conditions – PTSD, mixed depressive disorder, and anxiety disorder – would be likely to deteriorate, at such a time of high distress and anxiety, as to remove the element of voluntariness.(4) Accepting that the necessary psychiatric medication and psychological treatments are – based on the Further Information from the Respondent (November 2020) – available in prison in Lithuania, what is nevertheless needed and is missing is an individual plan for treatment and management of the Appellant, in advance and before any extradition takes place, in order sufficiently to manage his mental conditions and risk of suicide. Based on the reports from Professor Forrester, the relevant threshold of oppression is crossed in this case. Alternatively, the section 25 compatibility of extradition cannot be established without a specific assurance dealing with a prior individualised plan. That is the essence of the argument.

The section 25 focus is on ‘stage 3’: following arrival at the Lithuanian prison

[25]In applying section 25, there are ‘3 stages’ in the sequence to consider: see Farookh v Germany [2020] EWHC 3143 (Admin) at paragraph 10. Ms Pottle’s argument is squarely put at stage 3: the position after the Appellant has been received by the Lithuanian authorities in the custodial institution in which he is to be held. It is not focused on stage 1 (custody in the United Kingdom) nor stage 2 (arrangements during the transfer). Stages 1 and 2 are of course important and appropriate arrangements are essential. But no case has been advanced to say that they would not be. Ms Pottle accepted that there was no basis to impugn the way in which the National Crime Agency (NCA) would deal with protective arrangements in the context of the Appellant being incarcerated here (stage 1): including on being informed of any unsuccessful appeal and that his extradition would be proceeding; nor to impugn the way in which the NCA would deal with protective arrangements in the context of transit, transition and handover (stage 2). That is important, in circumstances where Professor Forrester’s evidence had described the importance of protective measures as including the need for “careful coordination of any transfer to Lithuania, with arrangements to ensure [the Appellant’s] safety before and during transit”, which “will necessitate careful clinical handover between healthcare services in England and those in Lithuania”. Accordingly, the section 25 argument is concerned with the position “following arrival in Lithuania”, to which Professor Forrester’s concerns are also addressed.

The section 25 focus is on ‘involuntary’ action (during the process of extradition)

[26]It is a feature of the evidence in relation to suicide risk in the present case that the clinicians agree that previous statements by the Appellant, about committing suicide were he to be extradited, were reflections of a voluntary act. Dr Desai’s letter described the Appellant’s clear statement “that if he is extradited to Lithuania, he will end his life” and expressed concern about “the likelihood that he will follow through” as arising “regardless of any mental health treatment that could be provided” because “I do not believe that a mental illness such as clinical depression is the primary cause”. Voluntary acts need to be put to one side for the purposes of the application of section 25 for “there is no oppression in ordering extradition” arising from a risk of suicide where it is the Appellant’s “own voluntary act which puts him at risk of dying”; the focus must be on a “mental condition of the person” being “such that it removes [their] capacity to resist the impulse to commit suicide”: Turner paragraph 28(4). For the purposes of section 25 and the principles in the caselaw, Ms Pottle therefore rightly relies on the risk of suicide as an involuntary act. As to that, Professor Forrester expresses the opinion that:
“it is more likely that any suicidal impulse that did emerge in this case, following an extradition order would do so from [the Appellant]’s underlying psychiatric conditions, rather than from a voluntary act”
. That is a description by Professor Forrester of the situation “at a time of high distress and anxiety, such as following an extradition decision, or during the process of extradition itself”. It is in that situation, in the opinion of Professor Forrester, that the risk of suicide is increased from “elevated” to “high”. Insofar as Professor Forrester is describing the situation “following an extradition decision”, that would be Stage 1. But Professor Forrester includes within the “time of high distress and anxiety” the later time “during the process of extradition itself”, within which he includes the arrival in Lithuania. That explains why Professor Forrester includes the issue of a prior individual treatment and management plan on the part of the Lithuanian authorities.

This is not a ‘whatever steps are taken’ case

[27]Section 25 oppression by reason of mental health-related suicide risk can, in principle, arise ‘whatever steps are taken’; that is, even if the relevant duties are discharged by the relevant authorities: see paragraphs 6 to 9 of Farookh. Ms Pottle accepts that this is not such a case. The proposition summarised in Farookh at paragraph 7 – where Article 3 can be breached notwithstanding that the authorities discharge their responsibilities to prevent suicide – does not arise in this case. Professor Forrester does not say that appropriate and effective steps could not be taken to address and manage the risk which he identifies. On the contrary, he clearly recognises that they could be. What Professor Forrester says is this:
“it would, in my opinion, be necessary to consider the elements of an individual treatment and management plan for [the Appellant] in advance, before any extradition takes place, and I am not convinced that the generic statements that have been made are yet sufficient to manage his mental conditions and risk of suicide”
. The reference to arrangements “not … yet sufficient to manage his … risk of suicide” clearly shows that Professor Forrester is recognising that appropriate steps can be taken to manage the mental conditions and risk.

The argument rests ultimately on the absence of a prior individualised plan

[28]Having focused the relevant section 25 issue in these ways, the question is a narrow one. Professor Forrester accepts that appropriate steps can be taken but describes “generic” statements in the Further Information as not having “convinced” him as to “yet” being “sufficient” when compared to authorities acting to “consider” a “plan … in advance”. In considering Professor Forrester’s opinion – which, naturally, I respect and do not second-guess – it is appropriate to note the terms in which it is expressed:
‘not yet convinced as to sufficiency’
. It is also important to look at the statements in the Further Information which Professor Forrester says “appear fairly generic”. In doing so, it is relevant to note his characterisation:
“it may be that the Lithuanian authorities plan to give further consideration to the management of [the Appellant]’s suicidality and the treatment of his underlying conditions upon his arrival in Lithuania”
. In my judgment, there is a problem with that characterisation. It is an understatement of the position communicated. It may be that Professor Forrester did not appreciate that the questions to which the Further Information was responding were questions about the Appellant and his conditions and the handover in his case. The Further Information states clearly, by reference to the Appellant by name and to his ‘mentioned health disorders’, that:
“The health assessment procedure will be performed as soon as [he] arrives in Lithuania”
. There is no “may be” here. It is “will” and “as soon as”. Also within the Further Information are the following. There is a description of the “Procedure for Prevention of Suicide”, with preventive arrangements implemented by Crisis Management Teams; so that “one of the most important functions assigned to the Teams is to ensure the early diagnosis of the risk of suicide and self-harm and the availability of medical, psychological and social assistance to newly arrived detainees and convicts, including post-extradition persons”. There is the explanation that “psychologists in places of deprivation of liberty assess the risk of suicidal behaviour using a Suicide Risk Assessment Questionnaire and a clinical interview during the initial assessment of convicts and detainees”. There is then the emphasis on the importance of the relevant Lithuanian specialists getting “acquainted with the previous assessment of [the Appellant]’s health, the treatment applied and the recommendations of medical specialists in order to continue the prescribed treatment or apply similar treatment”. The difference is between (i) an individualised plan immediately identified and actioned (the Further Information) and (ii) a prior individualised plan (Professor Forrester). Professor Forrester does not tell me that, or why – in the context of protection at stage 3 (in the Lithuanian prison) – an individualised plan immediately identified and actioned cannot in principle be adequate protection. Nor does he tell me that, or why – in the context of protection at stage 3 (in the Lithuanian prison) – an individualised plan immediately identified and actioned cannot be adequate protection in this case. He accepts that adequate protection can be effected in the Lithuanian prison. Ms Pottle accepts that Professor Forrester is not to be taken as expressing a need to scrutinise the contents of the arrangements identified in advance. It is the fact of having arrangements in advance. He does not explain why – if an individualised plan “will” be identified “as soon as” the Appellant arrives – that is not adequate protection. Especially in circumstances where there is to be an informed and managed transfer, to ensure continuity as to prescribed treatment.

My conclusions in relation to section 25

[29]I have to apply the appropriate threshold of oppression, on the evidence, based on the risks. I cannot accept that – absent a prior individualised plan – it would be oppressive to order extradition of the Appellant by reason of mental health-related suicide risk. On an overall judgment of the facts, the high threshold is not in my judgment met. The position, in my judgment, is as follows. There are appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the Appellant’s mental health condition and the risk of suicide (Turner paragraph 28(6)). There is not on the evidence a substantial risk that the Appellant will commit suicide, by reason of mental health condition which removes his capacity to resist the impulse to do so, given the steps identified by the Respondent (Turner paragraph 28(3)). Nor, forming an overall judgment on the facts and evidence, is the risk such as to meet the high threshold of it being oppressive to extradite the Appellant by reason of his mental health condition (Turner paragraph 28(1)(2)). The Respondent in the Further Information, responding to questions about the Appellant’s case, provides clear assurance that an individualised plan will promptly be identified and implemented on arrival in custody, indeed as soon as the Appellant arrives in custody, having conducted a suitable handover with appropriate information and being in a position to assess the Appellant. It is not necessary to revert to the Respondent for a further assurance in the nature of an individual treatment and management plan. Had I had a concern in the context of section 25, I would have raised a targeted question and given the Respondent an opportunity to address it. But for the reasons I have explained that position has not been reached. Section 25: back to

Bartulis

[30]In discussing the distinct section 25 argument which Mr Bartulis advanced in Bartulis the Divisional Court said (paragraph 149):

Section 25: back to Bartulis

“there is no evidence that the Lithuanian authorities do not provide appropriate preventative measures”
. In the present case, there is in my judgment positive evidence that they do and will. There is positive evidence that the Lithuanian authorities do provide appropriate preventative measures, including in particular an assessment on arrival (“as soon as”), by which a designated team discharges the important function to “ensure” an “early” diagnosis of a risk of suicidal self-harm, applying a Procedure for “Prevention” of Suicide.

Overall conclusion

[31]For the reasons which I have given, the appeal is dismissed on both Article 3 and section 25 grounds. Having circulated a confidential draft of this judgment, I can deal here with the Order and consequential matters: the appeal is dismissed; and there shall be a detailed assessment of the Appellant’s publicly funded costs.