Excess Domestic Custody Alone Is Not Oppressive: Broad-Fairness Review of Section 14 and High Threshold for Article 3 Mental-Health Objections in Extradition (Gavenaite v Lord Advocate)

Excess Domestic Custody Alone Is Not Oppressive: Broad-Fairness Review of Section 14 and High Threshold for Article 3 Mental-Health Objections in Extradition

Case: Appeal under section 26 of the Extradition Act 2003 by Ineta Gavenaite against The Lord Advocate (representing the Republic of Lithuania)

Citation: [2025] HCJAC 48 (High Court of Justiciary, Appeal Court, Scotland)

Court: Lady Wise (delivering the opinion), Lord Clark, Lord Ericht

Date: 28 October 2025

Introduction

This appeal arises from an order by the Edinburgh Sheriff Court (29 May 2025) to extradite Ms Ineta Gavenaite to Lithuania to serve an outstanding 15-year sentence imposed in 2013 for the murder of her newborn daughter, Paulina. The case is unusual because, in parallel, Ms Gavenaite was convicted in Scotland in 2011 of murdering another newborn, Paulius, a conviction later quashed after an SCCRC reference, resulting in a plea to culpable homicide and an 8½-year sentence backdated to April 2010. As a consequence of the quashing and backdating, she served more time in Scotland than that lesser sentence required. After her release on immigration bail, a second Lithuanian European Arrest Warrant (EAW) led to her remand for extradition.

The appeal challenged extradition on two grounds:

  • Article 3 ECHR and section 25 Extradition Act 2003: alleging a real risk of inhuman/degrading treatment due to mental health vulnerabilities (CPTSD/PTSD; suicide risk) and unjust/oppressive extradition given her condition.
  • Section 14 (passage of time): arguing that extradition would be unjust or oppressive given the significant time elapsed, particularly the extra 4 years, 8 months and 23 days served in Scotland beyond her backdated sentence, and raising questions as to whether Lithuanian procedures allow reopening based on new psychiatric evidence (Article 444 of the Lithuanian Code of Criminal Procedure).

The High Court granted leave but refused the appeal and the related Devolution Minute. In doing so, it clarifies two important principles: (i) the high evidential threshold to rebut the presumption of adequate medical care and to establish a substantial suicide risk under Article 3/section 25; and (ii) a broad, fairness-based approach to section 14 in unusual, multi-jurisdictional scenarios, coupled with judicial restraint in predicting the outcome of foreign remedial avenues.

Summary of the Judgment

The Appeal Court upheld the sheriff’s order for extradition. On the Article 3/section 25 ground, the Court held that the appellant failed to adduce clear and cogent evidence of a substantial suicide risk that Lithuanian prison healthcare could not manage. The presumption that a Category 1 territory will discharge its Convention obligations was not displaced. The sheriff was entitled to reject the defence expert evidence and to rely on updated information obtained through judicial dialogue with the Lithuanian court, confirming the availability of psychiatric services at Panevezys women’s prison and referral pathways to specialist hospitals if required.

On passage of time (section 14), the Court:

  • Did not adopt a rigid start date, but instead took a broad, holistic view of the case’s chronology in line with the parties’ submissions.
  • Found no culpable delay by the Lithuanian authorities; the second EAW was properly timed to coincide with anticipated release in Scotland.
  • Accepted that while the appellant served 4 years and almost 9 months beyond her backdated Scottish sentence, that did not, of itself, render extradition unjust or oppressive. It is a relevant fairness consideration, but not determinative.
  • Considered that the existence of a competent avenue in Lithuania to seek reopening based on new psychiatric evidence (Article 444 CPC) weighs against a finding of oppression; the Scottish court should not predict the merits of such foreign applications.
  • Declined to seek an assurance that Lithuania would credit the extra Scottish custody against the Lithuanian sentence, leaving that to Lithuanian authorities.

Leave to appeal on both grounds was granted, but the appeal and Devolution Minute were refused.

Analysis

1) Precedents Cited and Their Influence

  • Agius v Court of Magistrates Malta [2011] EWHC 759 (Admin): Establishes the presumption that Category 1 states will comply with their Convention obligations and that this presumption is only rebutted by “clear and cogent” evidence. The Court used Agius as the starting point to assess the Article 3/section 25 complaint and found the appellant’s evidence did not meet this threshold.
  • Turner v Government of USA [2012] EWHC 2426 (Admin): Articulates the need for a substantial risk of suicide to engage Article 3 or render extradition unjust/oppressive. The Court applied this “substantial risk” requirement and found it unmet.
  • Magiera v Poland [2017] EWHC 2757 (Admin): Addresses when more detailed, targeted assurances or inquiries may be needed about medical care in the requesting state. Here, the Court considered the sheriff’s inquiries to Lithuanian authorities adequate, and the information obtained sufficient, so no further inquiries were required.
  • AM (Zimbabwe) v Secretary of State for the Home Department [2021] AC 633: Restates the general framework for medical-based Article 3 claims (“substantial grounds for believing the person faces a real risk of serious harm”). The Court’s reasoning is consonant with the high threshold for medical claims.
  • W v Spanish Authority [2020] EWHC 2278 (Admin): Mutual trust within the EAW system. The Court relied on this principle to prefer properly sourced, up-to-date information from the requesting state’s judicial authorities over speculative or outdated concerns about prison healthcare.
  • Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779; Gomes v Government of Trinidad & Tobago [2009] 1 WLR 1038; La Torre v Italy [2007] EWHC 1370 (Admin): Define the section 14 “unjust or oppressive” enquiry and the relevance of delay (including whether the requesting state is culpable). The Court adopted their framework, found no culpable delay by Lithuania, and carried out a broad fairness assessment.
  • Lagunionek v Lord Advocate [2015] HCJAC 53; 2015 SCCR 292: Emphasises that the “unjust or oppressive” inquiry includes consideration of whether a fair trial is possible in light of safeguards under the requested state’s law. This underpinned the Court’s focus on the existence of a competent foreign mechanism (Article 444 CPC) to seek review based on new psychiatric evidence.
  • Andrysiewicz v Poland [2025] UKSC 23; [2025] 1 WLR 2733: Cautions requested courts against predicting the outcomes of domestic procedures in the requesting state; such predictions should be rare. The Court followed this guidance, noting that the competence of an Article 444 application was sufficient; the merits are for Lithuania.

2) Legal Reasoning

a) Article 3 ECHR and Section 25 (Mental Health and Suicide Risk)

The appellant relied on diagnoses of CPTSD, PTSD, and depressive disorder (facts agreed in a joint minute) and a prior suicide attempt in 2009. Three experts were led at first instance: a Lithuanian lawyer (Mr Tilindis), a prison systems academic (Professor Morgan), and a psychiatrist (Dr Bett). The sheriff found deficiencies in their evidence. Particularly, the Court endorsed the sheriff’s view that Dr Bett appeared partial, overstated triggers, and made pejorative and inaccurate comments about the Lithuanian courts’ attitude to mental disorder (paras [14], [38]). The sheriff was entitled to reject her evidence despite the absence of contrary expert testimony; the presumption of adequacy is not displaced by unpersuasive expert opinion.

Critically, the sheriff engaged in judicial dialogue with the Lithuanian issuing judge (Judge Remeika) and received updated, specific information confirming:

  • Panevezys’s access to medical professionals, including psychologists;
  • Availability of treatment in prison, forensic psychiatric evaluation if the condition worsens, and court-ordered treatment in a specialised hospital where appropriate (paras [17], [39]).

In light of this, the Court held that neither Article 3 nor section 25 were engaged: the appellant had not established a substantial suicide risk nor shown inadequacy of care in Lithuania. The presumption of compliance stood; the threshold for rebuttal was not met (paras [37]–[41]).

b) Section 14 (Passage of Time) and “Broad Fairness”

The Court took a purposive approach. Rather than fixating on the formal start date under section 14(b) (unlawfully at large), it accepted that “it would be artificial to ignore the whole history” and assessed overall fairness across the entire chronology (para [41]). This broad fairness review recognised:

  • No culpable delay by Lithuania; the second warrant sensibly awaited the appellant’s anticipated release in Scotland (para [41]).
  • The appellant’s excess domestic custody post-backdating (4 years, 8 months, 23 days) is relevant to fairness but not determinative (paras [44]–[45]).
  • The existence of a competent avenue to seek reopening in Lithuania based on psychiatric evidence (Article 444 CPC) weighs against oppression; the Scottish court should not predict the outcome (paras [42]–[43]).
  • Assurances about crediting excess Scottish time toward the Lithuanian sentence were unnecessary at this stage; the matter can be left to Lithuanian authorities (para [45]).

The Court thus reaffirmed that section 14’s “unjust or oppressive” test is contextual, that culpable delay (or equivalent unfairness) is key, and that fairness includes respect for the requesting state’s post-conviction safeguards, without speculative interference.

3) What Is New or Clarified by This Decision?

  • Excess domestic custody alone does not make extradition oppressive. Even where a domestic conviction is quashed and a backdated lesser sentence yields “excess custody,” that surplus time is a relevant fairness consideration but, without more (e.g., culpable delay by the requesting state or other injustice), it will not bar extradition under section 14.
  • Broad fairness review under section 14 in multi-jurisdictional cases. The Court endorsed looking at the whole history (rather than rigidly fixing a start date) to evaluate “unjust or oppressive,” especially when domestic and foreign proceedings interlock over many years.
  • Competent foreign remedies suffice; do not predict their outcomes. The Court confirmed that the existence of a competent reopening route in the requesting state (here, Article 444 CPC) is enough to guard against oppression; Scottish courts should not assess prospects of success (consistent with Andrysiewicz).
  • High threshold and evidential discipline for Article 3/section 25 mental-health objections. Clear and cogent evidence is required to displace the presumption of adequate care; uncontradicted expert evidence can be rejected if the judge gives adequate reasons. Risk must meet the “substantial suicide risk” standard; and targeted, up-to-date information from the requesting state can decisively answer generalised or outdated criticisms of prison healthcare.
  • Judicial dialogue is legitimate—and neutral—fact-gathering. A judge may seek clarifications from the issuing judicial authority without implying that Article 3/section 25 thresholds are met. Responsive assurances can reinforce mutual trust.

Impact and Practical Significance

For Defence Practitioners

  • Article 3/section 25 arguments anchored in mental health must be evidenced with current, jurisdiction-specific materials showing concrete deficits in the requesting state’s facilities and care pathways. General reports, outdated inspections, or speculative prisoner-on-prisoner risk will rarely suffice.
  • Where “excess custody” has accrued due to quashing and resentencing domestically, raise it as part of a holistic fairness argument—but recognise it will not automatically bar extradition. Consider making targeted applications in the requesting state (e.g., for credit or sentence adjustment) and be prepared to evidence the mechanism’s competence.
  • Do not expect the Scottish court to predict foreign outcomes. Focus on demonstrating that a foreign route either does not exist or is not practically accessible. Mere doubts about likely success will not carry the day.

For Prosecuting Authorities and Issuing States

  • Judicial dialogue remains a robust tool. Timely, specific information from issuing judges about prison medical services and legal remedies can decisively counter Article 3 and section 25/14 objections.
  • No obligation arises for advance assurances on crediting excess custody, absent exceptional factors. National sentencing and credit norms remain primarily for the issuing state.

For Sheriffs and Appellate Courts

  • The decision underscores that uncontradicted expert evidence may still be rejected, provided reasons are cogent and grounded in the record and in reliable, updated information from the requesting state.
  • A broad fairness analysis under section 14 is appropriate in atypical, multi-forum cases, provided Kakis/Gomes remain the anchor: culpable delay by the requesting state and genuine prejudice are key.
  • Resist predicting the merits of domestic remedies in the requesting state. The court’s task is to ascertain the remedy’s existence and competence, not its likely outcome.

Complex Concepts Simplified

  • Article 3 ECHR: Protects against torture or inhuman/degrading treatment or punishment. In extradition, the appellant must show “substantial grounds” for believing a “real risk” of such treatment upon surrender.
  • Section 25 Extradition Act 2003: Even if no Article 3 breach is shown, extradition may be barred if the person’s mental or physical condition makes extradition “unjust or oppressive.” The threshold is still high.
  • “Clear and cogent evidence” (Agius): Because of mutual trust in the EAW system, courts presume adequate compliance by Category 1 states. The appellant must rebut this presumption with strong, reliable evidence tailored to the specific risks and conditions at issue.
  • “Substantial risk of suicide” (Turner): Not any risk, or a speculative risk, but a substantial one. Evidence should show why the risk is substantial and why the requesting state’s safeguards cannot manage it.
  • Section 14 (“unjust or oppressive” due to passage of time): Focuses on whether extradition has become unfair due to the time elapsed since offending or since becoming unlawfully at large (for convicted persons). Courts consider culpable delay and overall fairness (Kakis, Gomes).
  • “Broad fairness” in multi-forum cases: Where proceedings span multiple jurisdictions and years, Scottish courts may take a holistic view of fairness rather than rigidly fix a statutory start date, while still applying the Kakis/Gomes criteria.
  • Article 444 (Lithuania’s Code of Criminal Procedure): A mechanism to reopen/renew criminal cases based on new facts or evidence unavailable at trial, including fresh psychiatric evidence that could lead to “easier classification” of the offence. Competence to apply matters; Scottish courts will not predict outcomes.
  • “Mutual trust” and judicial dialogue: Core EAW concepts. Courts trust that other EU/MRA states will protect rights. Judges may request clarifications from the issuing state’s judiciary; responsive information, if credible, can resolve concerns without formal assurances.

Conclusion

Gavenaite cements two interlocking principles in Scottish extradition law. First, mental-health-based objections under Article 3/section 25 face a high threshold: the presumption of adequate care in Category 1 states stands unless displaced by clear, cogent, current, and jurisdiction-specific evidence demonstrating a substantial suicide risk that the requesting state cannot reasonably manage. Uncontradicted expert testimony can be rejected if inadequately reasoned or outdated, and targeted judicial dialogue can appropriately fill evidential gaps.

Second, section 14’s “unjust or oppressive” inquiry is a broad fairness assessment in atypical, multi-jurisdictional contexts. Excess domestic custody due to quashing and backdating is a relevant, but not determinative, factor; without culpable delay or other compelling unfairness, it will not bar extradition. The existence of a competent foreign avenue to seek review based on new psychiatric evidence (here, Lithuania’s Article 444 CPC) bolsters the fairness of extradition, and Scottish courts should not predict the success of such applications, nor ordinarily seek credit assurances absent necessity.

The decision will guide future cases where mental-health risks and complex sentencing chronologies intersect with extradition. It underscores evidential rigor, deference to foreign remedial mechanisms, and the importance of up-to-date, authoritative information in maintaining mutual trust within the EAW framework.

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