England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		11th April 2006

1. LORD JUSTICE MAURICE KAY: I will ask Tugendhat J to give the first judgment.
2. MR JUSTICE TUGENDHAT: The appellant, Antoanela Colda, is the subject of an extradition request by the Government of Romania. The Extradition Act 2003, Part II, applies to this case. Romania is a category 2 territory.
3. On 9 December 2005, District Judge Tubbs, acting pursuant to section 87(3) of the 2003 Act, sent the appellant's case to the Secretary of State for his decision whether the appellant should be extradited. On 1 February 2006, the Secretary of State made an order for the appellant's extradition. She now appeals the decision of the district judge under section 103 of the Act. She has advanced two Grounds of Appeal. The first is based on Article 8 of the European Convention on Human Rights and section 87 of the 2003 Act. The second is based on the passage of time and section 82 of the 2003 Act.
4. In 2001 the appellant was in Romania of which she is a national. She applied for a visa to come to the United Kingdom to work as a nurse. Her application was granted and she came to the United Kingdom on 19 February 2002. On 18 December 2002, she was convicted in her absence in Romania of an offence translated as "traffic of influence". The facts described are that she received money from another young woman who was seeking a job as a nurse. She had, or was understood to have had, influence in obtaining a job for that person. The sum of money alleged is about $450 US. It was alleged that she received that in return for a promise to use her influence.
5. The decision of the court, and the sentence, were subject to appeals. On 11 March and 10 December 2003, the Court of Appeal in Romania confirmed the conviction and a sentence of two years' imprisonment. In addition an order was made under Article 64 of the Romanian penal code. That included an interdiction on her parental rights which it will be necessary to consider in more detail. This order, and its effect, are the basis of her submissions in respect of Article 8.
6. On 23 May 2005, an extradition request was made by Romania following her arrest in the United Kingdom in April 2005. On 7 January 2006, a baby daughter was born to the appellant and her husband. Her husband is also a Romanian national. He is permitted to work in the United Kingdom as her dependant under her work permit visa.
7. It is her case that if she is returned to Romania so too would her baby have to return. It is said that the interference with her Article 8 rights, consequential upon such a return, would not be proportionate to the aim of the proposed extradition and therefore the return would not be compatible with her convention rights with the result that she should be discharged.
8. Section 87 of the 2003 Act provides as follows:

"(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(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 send the case to the Secretary of State for his decision whether the person is to be extradited."

9. Before the judge no submissions were made on her convention rights. However, section 104(4) of the 2003 Act permits the High Court to hear an issue that was not raised at the extradition hearing. It has been raised and we have heard it: if we found that the appellant's extradition would not be compatible with her convention rights we would be bound to order her discharge.
10. There was evidence heard before the district judge, including from the appellant's Romanian lawyer. It is clear from the note of his evidence that he gave evidence at some length, but since the issue of Article 8 was not raised he gave no evidence relating to it. As is well-known, Article 8 reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

11. For the appellant, Mr Caldwell accepts that the law is correctly stated in the following way: an appellant who seeks to rely upon Article 8 must be able to demonstrate a real risk of a flagrant breach of their convention rights upon extradition (see Ullah v Special Adjudicator [2004] 2 AC 323.) The law was most recently summarised by Laws J in Birmingham V the United States of America [2006] EWHC 200 (Admin) at paragraph 118 as follows:

"If a person's proposed extradition for a serious offence will separate him from his family, Article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in "honouring extradition treaties made with other states (Ullah, paragraph 24).

It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign States for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim."

In that case the court also had to consider the separation of a father and a child.

12. The judgment of the court in Romania, given upon the conviction of the appellant, included the following sentence:

"-2 years prison for the offence of traffic of influence provided by the article 257 Penal code. Deprives the accused from the exercise of the rights provided by the article 64 Penal code in the conditions of the article 71 Penal code."

13. The provisions of Article 64 have been translated for us, but they are also to be found in the judgment of the European Court of Human Rights in the case of Cumpana v Mazare v Romania (Application No. 33348/96) judgment 17 December 2004, where the translation appears to be in more fluent English. It reads as follows:

"Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:

(a) the right to vote and to be elected to bodies of a public authority or to public elective office;

(b) the right to occupy a position entailing the exercise of State authority;

(c) the right to perform a duty or practise a profession or activity by means of which the convicted person carried out the offence;

(d) parental rights;

(e) the right to act as a child's guardian or statutory representative."

In Cumpana there is also a translation of Article 71, which reads as follows:

"The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.

A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ..."

14. In that case, and in another case before the Strasbourg Court, namely Affaire Sabou et Pircalab v Romania (application number 46572/99) judgment 28 September 2004, the Strasbourg Court had considered Articles 64 and 71. In each case the applicant was convicted of a criminal offence for which a sentence of imprisonment had been imposed. The focus of the case is primarily upon their complaints of interference with their rights under Article 10, but in each case the court also regarded the penalty under Article 64, in particular, the penalty in relation to deprivation of parental rights, as a breach of Article 8. The reason in each case was that the penalty was automatic and did not have regard to the privacy of the interests of the child and had not been imposed following a consideration of necessity and proportionality.
15. In the papers before us Article 71 reads differently and as follows:

"Paragraph 1: The accessory penalty consists in interdiction of all the rights provided in the article 64.

Paragraph 2: The conviction to the penalty of life imprisonment or prison involves the interdiction of the rights, shown in the precedent paragraph, from the moment when the conviction judgment remained final and up to the end of the execution of penalty, up to the total pardon or of the rest of the penalty or up to the elapsing of the term of prescription of the execution of the penalty.

Paragraph 3: The provisions of the paragraph 1 and 2 are applied in the case when the execution of the penalty was disposed at the working place too, with the exceptions provided in the article 86/8, the interdiction of the rights provided in the article 64 letter d) and e) being left to the judgment of the Court."

16. Letter d) is, of course, the reference to parental rights from which it appears that Romanian law may have changed following the Strasbourg cases.
17. In argument Mr Caldwell submitted in this court that the effect of a penalty, such as was imposed on the Appellant under Articles 64 and 71 of the Romanian penal code, will be, if she is returned to Romania, that all her parental rights are suspended for the period of her imprisonment and, in particular, the right to visits from and contact with her daughter. It is submitted that this can be derived from the judgments of the Strasbourg Court. The submission is put in that way in circumstances where there was not below, and there has not been before us, any evidence from a Romanian lawyer, or anyone else, as to the practical effect of a sentence of the kind in question. However, even assuming that Romanian law has not changed since those decisions in 2004, the fact is that neither of those two judgments sets out, in terms, what the practical effect of such a penalty is. Neither judgment contains a reference to the right, or otherwise, of a mother serving a sentence of imprisonment to receive visits from, or to have contact with, her daughter.
18. There was put before us by Miss Dobbin, on behalf of the Government of Romania, a copy of a letter dated yesterday, 10 April 2006, which contains a summary of the effect of these provisions of the Romanian penal code. Included in the letter is the following passage:

"Conviction to a penalty of life imprisonment or imprisonment entails de jure the prohibition of those rights starting with the moment when the conviction is final to the completion of penalty service, to total pardon or pardon of the rest of the penalty or to completion of the prescription term for the service of the penalty. This means that such restriction is only temporary. The person in case will may have relations with her children, including seeing them. This is not a disqualification of her parental rights which, if it was so, would have been a restriction from the second subgroup. Such restriction has another legal regime and is governed by our Family Code."

19. The reference to the second sub-group is to an earlier passage of the letter in which the writer, who is from the Romanian Ministry of Justice, Directorate for International Law and Treaties, distinguished between a criminal penalty, such as in question here, and a civil penalty. The English leaves some ambiguity, but the upshot is that there is no evidence before us that the appellant, if returned to Romania, would face complete suspension of any right to receive visits from, or contact with, her child.
20. There is no dispute in this case that parental rights are, in principle, of the very highest importance and that an interference with them will be an interference with the Article 8 rights of the mother in this case and for that matter the child. The exercise of parental rights, and the mutual enjoyment by parent and child of each other's company, constitute fundamental elements of family life. Where the existence of a family tie has been established the state must, in principle, act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited.
21. In the present case it is submitted, on behalf of the appellant, that the risks to the relationship between her and her daughter extend beyond the simple fact of separation which is inherent in a sentence of imprisonment. In a witness statement the appellant expresses the fear that the state of Romania will take from a parent, who is sent to prison, the child of that person and put the child into foster care or into an orphanage. She says that because her husband could not remain in the United Kingdom in her absence, both because he could not support himself and because of the terms of his visa, he and the little girl would return to Romania if she herself is sent back. She is concerned that he would not be capable of looking after the child as he would have to work to support her. She is concerned that there is no one else to care for the little child so she may be put up for adoption.
22. These concerns are understandable from a mother of a young baby, but that is as far as the evidence goes. We have not been provided with any detailed evidence as to what, in practice, may happen in Romania. In the absence of some other family ties the sentence of imprisonment may bear heavily on any mother who is sentenced to prison and whose child is, as a result, lacking the care which the mother would normally give it. But this result is a result of any sentence of imprisonment passed upon a young mother whose family circumstances are as described by this appellant.
23. On behalf of the Government of Romania Miss Dobbin submits that these two points: the absence of evidence as to the practical effect of Article 64 of the penal code and the absence of evidence explaining what role the appellant's husband might take in caring for the child in Romania, are insuperable obstacles in the way of the appellant in seeking to establish her case under Article 8. She submits that the terms of Article 64 are at least clear to the extent that the effect on the parental rights of the appellant last no longer than the term of imprisonment. The main impact on the family life is thus from the imprisonment itself and that, which she submits, is clearly justified in terms of Article 8(2), otherwise it would never be possible to sentence to imprisonment a young mother in circumstances such as the appellant's.
24. The position under Romanian Criminal Law may, or may not, be the same as it was when the two cases were decided in Strasbourg in 2004. For the purpose of this case I am willing to assume that it is the same and that in principle the imposition of a penalty, such as was imposed on the appellant, would amount to an interference by the State of Romania with her rights under Article 8. I am prepared to assume that notwithstanding the fact that as at the time when the sentence was imposed she did not have a child and was not expecting one. The Romanian Court might have assumed that the period of custody would commence imminently. But in the absence of evidence I am not prepared to assume that the practical effect of the penalty under Article 64 would be as Mr Caldwell submits.
25. In my judgment the appellant is unable to establish that any breach that there may be by the State of Romania of her Article 8 rights is so flagrant a breach that she succeeds in demonstrating that the Extradition Order, the return of her to Romania, would be a disproportionate interference with her Article 8 rights. The countervailing considerations are as set out by Laws J in the Bermingham case.
26. The second argument advanced on behalf of the appellant by Mr Caldwell is pursuant to section 82 of the 2003 Act. That reads as follows:

"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

27. The judge considered this in her judgment. She found that when the appellant left Romania she was doing so to pursue her career as a nurse and not to avoid the trial process. Her address in Romania was her parent's address. Her mother was aware of the first trial. The Romanian Government legally summonsed the appellant and the appellant had a lawyer to represent her interests at the trial. Her mother arranged for her daughter's interests to be represented. The appellant maintained before the judge that her mother did not inform her of the trial and that when she eventually did so some time in November 2002 the appellant understood the proceedings to be administrative rather than criminal. The judge did not find that a credible account.
28. She found that the appellant did know the true nature of the proceedings and that is why the matter was taken seriously and the lawyer instructed. The judge accepted that the appellant hoped it could all be resolved without her attending in person. She had not been bailed to attend and was not legally required to attend. Her lawyer was present and had the opportunity to call evidence and make submissions on her behalf. He did not contest the allegation, but he did ask for clemency in the sentence before it was passed. The judge found that the appellant could have attended that trial and chose not to do so.
29. The submission is made that nevertheless a return would be oppressive, this being a case where the appellant has been tried and is not being returned for a trial. In Kakis v The Government of Cyprus [1978] 1 WLR 772 the House of Lords was concerned with the predecessor provision: section 83(b) of the Fugitive Offenders Act 1967. At page 782H to 783A Lord Diplock said:

"'Unjust' I regard as primarily directed to the risk of prejudice to the accused in the conduct of the trial itself 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied on as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most

exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

30. There has been some debate as to the relevant period sometimes referred to as the cradle of events. For the appellant it is submitted that the date starts to run from the offence. For the respondent it is submitted that in a case where the person to be extradited has already been convicted the relevant time starts, as set out in section 82, at the point she is said to have been unlawfully at large. Miss Dobbin submits that this period in the case is no more than 16 months, that being the period between the issue of the warrant in Romania on 10 December 2003 for the appellant's arrest, to the date of her actual arrest in the United Kingdom on 21 April 2005. In my judgment Miss Dobbin is correct, in this submission, in a case such as this. The differences in the time period is significant, 16 months being very much shorter than the period of over four years relied on by Mr Caldwell.
31. In the evidence before the judge the appellant stated that she had been qualified as a nurse for three years in Romania before she applied to work in the United Kingdom. She stated that in the course of that application there was a check of her criminal record to see if she had any convictions. She said that she did not have any convictions at that time. She said that she told the Romanian police the purpose of the check and her parents knew that she had travelled abroad. The application was made through the British authorities in Romania.
32. Since coming to the United Kingdom she has worked as a nurse here. The Romanian Ministry of Justice wrote a letter, dated 15 November 2005, which was before the judge. In that letter they stated that the appellant's parents were not able to indicate to the Romanian authorities the appellant's address in England. For the appellant it is submitted that the Romanian authorities either did know or could have known. It is submitted that during the period of delay they could have done something to pursue the request that they eventually made, but chose not to do so.
33. Reference is made to the speech of Lord Edmond Davies in the Kakis v Government of Cyprus 785C to D where he said:

"... the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return."

34. It is submitted that that is the situation here. In addition it is submitted that the fact that in the interval the appellant has had a baby and that when she returns, if she does, she will suffer the consequences, to which I have already referred, that too can be taken into account by this court and should lead to the conclusion that her return would be oppressive.
35. For the Government of Romania Miss Dobbin submits that it was a deliberate choice, on the part of the appellant, not to return to face criminal proceedings that had been brought against her and not to return to either of the two appeal hearings. She submits that the appellant can lay no claim to having a false sense of security by virtue of any time that has elapsed since her conviction. The appellant, to the extent that she has settled and established life here in the United Kingdom, did so fully aware of the proceedings against her and the course they were taking. She chose voluntarily to marry and have a child in that knowledge and in the knowledge that once convicted she faced the possibility of a two-year term of imprisonment if returned to Romania. Accordingly, it is submitted she cannot now rely upon these changes in her circumstances to establish a case of oppression. No blame, it is submitted, can be laid at the door of the Romanian State. It was the appellant who chose, as she was entitled to, to exhaust all the appeal routes open to her and chose not to return to Romania when the legal proceedings were finally concluded. The period of delay is very short in those circumstances.
36. In my judgment the submissions of Miss Dobbin are to be preferred and are correct. The appellant cannot establish a case of oppression under section 82 of the 2003 Act. Accordingly I would dismiss this appeal.
37. LORD JUSTICE MAURICE KAY: I agree with the reasons given by my Lord. The appellant has not proved a flagrant breach of Article 8, nor has she established oppression by reason of the passage of time within the meaning of section 82 of the 2003 Act. Accordingly her appeal is dismissed. Thank you both very much.