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
		12th March 2008

1. LORD JUSTICE LEVESON: On 8th January 2008 Senior District Judge Workman at the City of Westminster Magistrates' Court ordered the extradition of the appellant, Pawel Slivka, to the Czech Republic, pursuant to section 21(3) of the Extradition Act 2003 ("the Act"). Mr Slivka now appeals against that order, under section 26 of the Act.
2. The background is as follows. As long ago as 22nd July 1998 Mr Slivka was convicted in the Czech Republic of a count of fraud or swindling, contrary to sections 250(1) and (2) of the Czech Criminal Code. He had contested the matter, but was convicted after trial. He asserts that he was not permitted legal representation at that hearing, nor when he subsequently tried to appeal. No complaint has ever apparently been made to the European Court of Human Rights in relation to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention").
3. The circumstances of the offence concerned an earth rammer valued at present in the order of £1,500. Mr Slivka was sentenced to a term of eight months' imprisonment, which remains to be served.
4. On 15th March 1999, knowing that this sentence of imprisonment remained outstanding, the appellant arrived in the United Kingdom. He applied for asylum on the basis that he had suffered a number of racial attacks as a result of his ethnic origin. Shortly thereafter, his family followed and he now resides in this country with his partner and two children, presently aged 15 and nine.
5. An application for asylum was refused, as was the subsequent appeal against that decision. Pending a further application, the appellant was granted indefinite leave to remain on 11th June 2004, following a policy decision by the executive. As a result the appellant now receives benefits, including housing benefits, which allow him to provide for himself and his family. His partner who is also a Czech citizen, eligible to reside in this country as long as she is seeking work, has been able to obtain some work on a temporary and agency basis. Since his arrival the appellant has not committed or been convicted of any offence.
6. So matters remained until 16th June 2007, when the District Court of Prague issued a European arrest warrant, which on 28th August 2007 was certified in the United Kingdom. On 27th November the appellant was arrested and was subsequently produced at the magistrates' court, which led to extradition hearings on 10th December 2007 and 8th January 2008.
7. On the appellant's behalf it was argued that his extradition offended Article 8(1) of the Convention, on the grounds of inappropriate interference with his right to private and family life. For the purposes of deciding the case, the District Judge accepted the appellant's case at its highest, but concluded that even on that basis his claim did not engage Article 8 and he therefore ordered his extradition. It is that decision which is the subject of this appeal.
8. It is worth underlining the law. Section 21(1) of the Act provides that a judge must decide whether a person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. In order to undertake that analysis, the judge is assisted by a number of decisions of this court and the House of Lords. In R (Ullah) v Special Adjudicator [2004] 2 AC 323 Lord Bingham observed, at paragraph 24:

"24. While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case."

9. That observation follows the decision of the European Commission in Launder v United Kingdom (1997) 25 EHRR CD 67, in which it was made clear that an interference is in breach of Article 8 unless it is "in accordance with the law" and "necessary in a democratic society", pursuant to Article 8(2). The Commission went on at page 74:

"The Commission considers that it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference with the right to respect for family life …"

10. That decision was applied by the Divisional Court in R (Bermingham and others) v Director of the Serious Fraud Office, Bermingham and others v Government of United States of America [2006] EWHC 200 (Admin) in which Laws LJ said, at paragraph 118:

"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."

11. In Huang v Secretary of State for the Home Department [2007] UKHL 11, the House of Lords considered the application of Article 8 in the context of immigration and observed:

"20. In an article 8 case ... the ultimate question ... is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. ... It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality."

12. Is that still the position in relation to extradition? In Jaso, Lopez and Hernandez v Central Criminal Court No 2, Madrid [2007] EWHC 2983 (Admin) Dyson LJ observed:

"... it is not right to apply [an exceptionality test] as a formula for proportionality. So much is made clear by Huang. As Sedley LJ said in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 para 31: 'The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence, not a precondition, of the statutory exercise'. The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights."

13. The position only needs to be considered to underline the obvious common sense of that observation. If the appellant had been convicted and sentenced to a term of eight months' imprisonment in this country, it is beyond argument that his Article 8(2) rights would be affected during the period of his sentence. The fact that the conviction is in a different country does not alter that proposition. The only question is whether there is something truly exceptional in the circumstances of this case to justify taking a different view from that which would apply in this country.
14. Miss Dowse, who has argued this case with commendable clarity and taken every point that could legitimately be taken on behalf of this appellant, presents the case on the basis that the combination of circumstances amounts to an exceptional case, such as to demonstrate an inevitable unjustified interference with the Article 8 rights.
15. The features upon which Miss Dowse relies relate to the circumstances of the appellant's trial; the fact that he was subject to racial discrimination; the fact that he fled, with his family following thereafter, but was subsequently granted indefinite leave to remain; his presence in this country for 9 years without committing an offence or otherwise coming to the attention of the authorities; and the enormous adverse implications upon his family should he be extradited, given that the housing and other benefits which he receives are based upon his indefinite leave to remain, rather than his partner's. Reliance is also placed upon the fact that the appellant's wider family is to a very large extent based in this country. Concern is expressed at the risk to his partner and children, were they to be disrupted and have to return to the Czech Republic in order to support Mr Slivka.
16. Speaking for myself, particularly bearing in mind the obligations placed upon the state in relation to the interests of children resident in this country and the circumstances of his wider family life already established here, I have real doubt as to whether it would be necessary or indeed in the interests of any for the family as a whole to return to the Czech Republic. Inevitably, whilst serving the sentence Mr Slivka will be apart from his family. Whether he is apart in the next road or town or in another country may not be of the highest significance.
17. The question arises whether there is anything truly exceptional about this case. Indeed, it is commonplace that the circumstances in which Mr Slivka finds himself would be the same for anybody who had established a substantial private life in this country with young children.
18. Although I have every sympathy for the appellant's position, this is not a case in which he is required to be returned for the purposes of trial. He has been convicted and sentenced. In my judgment, there is, I am afraid, absolutely no basis for concluding that there is an exceptional feature of his case, within the language of the authorities to which I have referred, that would justify overcoming the almost essential obligation that this country has to abide by its extradition arrangements. In my judgment, the District Judge was entirely right to conclude that Article 8 did not provide a defence to this extradition.
19. I would dismiss this appeal.
20. MR JUSTICE LLOYD JONES: I agree.
21. LORD JUSTICE LEVESON: Thank you.
22. Miss Dowse, thank you very much. Your client has been well served by you.
23. MISS DOWSE: Thank you very much, my Lord.
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