QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WILKIE
| MARTINA PALENSIKOVA HOHOLM
|- and -
|THE GOVERNMENT OF NORWAY
Corinne Bramwell (instructed by the CPS) for the Respondent
Hearing date: 19 June 2009
Crown Copyright ©
Lord Justice Stanley Burnton:
In early July 2005 in Norway, she unlawfully took with her the children Timothy Palencik Hoholm, dob 28th July 2000, and Joachim Palencik Hoholm, dob 26 February 2002, out of the country, and since has not returned them. The act was done in violation of an order issued by Vesterålen District Court on 7th September 2004, where it was determined that she and the children's father, Tommy Hoholm, should have shared parental responsibility until a legal decision was made, and where a visitation arrangement was established, and that, in the order, a prohibition was issued stopping either parent from taking the children out of the country without the other parent's consent. By Hålogaland High Court's judgment of 10th March 2006, Tommy Hoholm was awarded daily care of the children, and she and Hoholm were awarded joint parental responsibility. An appeal of the Hålogaland High Court's judgment to the Supreme Court was rejected by order of the Supreme Court Appeals Commission on 23rd May 2006.
The victim, Tommy Hoholm, has petitioned to press charges."
"The Chief Constable of Mid-Hålogaland
Hereby charges: Ms Martina Palencikova, dob 14th September 1979, Liptovsky Hradok, 03301 Slovakia, Slovakia
With violation of:
Penal Code section 216, first paragraph
For having caused a minor to be illegally abducted or kept from its parents.
Basis: 9300840 a 02
In the period from 10th March 2006 until today's date she has abducted her children, Timothy Palencic Hoholm, dob 28th July 2000, and Joachim Palencic Hoholm, dob 6th February 2002, from association with their Father, Tommy Hoholm. This despite the fact that Tommy Hoholm was awarded daily custody of the children by Hålogaland High Court.
The victim has petitioned for prosecution.
The applicable statutory provisions
78 Initial stages of extradition hearing
(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include)—
(a) the documents referred to in section 70(9);
(b) particulars of the person whose extradition is requested;
(c) particulars of the offence specified in the request;
(d) in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory;
(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.
(4) If the judge decides that question in the affirmative he must decide whether—
(a) the person appearing or brought before him is the person whose extradition is requested;
(b) the offence specified in the request is an extradition offence;
(c) copies of the documents sent to the judge by the Secretary of State have been served on the person.
(6) If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.
(7) If the judge decides those questions in the affirmative he must proceed under section 79.
137 Extradition offences: person not sentenced for offence
(1) This section applies in relation to conduct of a person if—
(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, …
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied—
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).
103 Appeal where case sent to Secretary of State
(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
104. Court's powers on appeal under section 103
(1) On an appeal under section 103 the High Court may—
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition.
(6) If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person's discharge.
The contentions of the parties
The rule in Henderson v Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
… A narrative of events prior in date to the conduct relied on will not be objectionable if it is included merely in order to set the scene - to identify the people with whom the person concerned was associating, for example, and their backgrounds and associates. Information of that kind is relevant and admissible to enable inferences to be drawn as to the nature of the offence constituted by the conduct for which extradition is sought. But it is the conduct for which extradition is sought, not any narrative that may be included in the Part 1 warrant simply by way of background, that must satisfy the test of double criminality.
Mr Justice Wilkie