England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/06/2009

Lord Justice Stanley Burnton:

Introduction

1. This is an appeal under section 103(1) of the Extradition Act 2003 against the decision of District Judge Workman sitting at Westminster Magistrates' Court made on 5 March 2009 to order the Appellant's extradition to Norway, a Part 2 territory for the purposes of the Act. Her case was sent to the Home Secretary to decide whether she should be extradited, and on 27 April 2009 she decided that the Appellant should be extradited.
2. At the conclusion of the hearing of submissions we stated that the appeal would be allowed and the order made by the District Judge set aside for reasons we should give in writing subsequently. It followed that the Appellant should be discharged, and we so ordered. This judgment sets out my reasons for allowing the appeal.

The facts

3. The Appellant married her husband Tommy Hoholm in 2000. They have two children, Timothy, born in July 2000 and Joachim, born in February 2002. They lived in Norway. The marriage broke down in August 2004, and proceedings began in Norway concerning the custody of the children.
4. On 15 July 2004, Mr Hoholm was granted daily care of the children. On 7 September 2004, a District Court ordered the Appellant day-to-day care.
5. In July 2005 without informing Mr Hoholm the Appellant removed the children from Norway and took them to Slovakia. According to the subsequent judgment of the Vesteralen District Court this was a breach of the District Court's decision of 7 September 2004. The custody proceedings continued in her absence. On 21 September 2005, the Vesteralen District Court made Mr Hoholm the daily carer of both children and granted him sole parental responsibility. The Appellant appealed this decision in her absence. On 10 March 2006 the Halogaland High Court allowed her appeal in part. It upheld the decision to appoint Mr Hoholm as day-to-day carer but vested parental responsibility in both parents.
6. Following the decision of 10 March 2006 the Appellant failed to return the children to Mr Hoholm in Norway. She apparently came to this country on holiday in January 2009: hence the extradition proceedings here.
7. The Norwegian request for the Appellant's extradition states that she is charged in Norway with a violation of section 216, first paragraph, of the Norwegian Penal Code "For having assisted to cause a minor to be unlawfully abducted or kept abducted from her parents or other proper person's care". The italics are mine; the italicised words may be significant. The request states that the basis of the charge is as follows:

In early July 2005 in Norway, she unlawfully took with her the children Timothy Palencik Hoholm, dob 28^th 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 7^th 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 10^th 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 23^rd May 2006.

The victim, Tommy Hoholm, has petitioned to press charges."

8. The request for extradition has attached the charge against the Appellant. As translated, it is as follows:

"The Chief Constable of Mid-Hålogaland

Hereby charges: Ms Martina Palencikova, dob 14^th 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 10^th March 2006 until today's date she has abducted her children, Timothy Palencic Hoholm, dob 28^th July 2000, and Joachim Palencic Hoholm, dob 6^th 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

9. Sections 78, 137, 103 and 104 of the 2003 Act, so far as relevant, are as follows:

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;

(e) …

(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.

(5) …

(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).

(3) …

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.

(7) …

The contentions of the parties

10. The only substantive issue between the parties was whether the double criminality requirement imposed by section 78(4)(b) and section 137(2) was satisfied in relation to the Appellant. It was common ground that the removal of children from this jurisdiction by a parent in contravention of a court order is a criminal offence. On the other hand, a failure by a parent who has removed children unlawfully to return them to the jurisdiction is not a criminal offence. It was submitted on behalf of the Appellant that her conduct as charged was the latter and not the former: the charge relates to the period from 10 March 2006, when she and the children were already in Slovakia. Moreover, her conduct in failing to return her children to Norway did not occur in Norway, but in Slovakia.
11. For the Respondent, it was submitted that the offence that was the subject of the extradition request included the unlawful removal of the children from Norway, as was made clear by the basis of the request set out under paragraph 7 above. In addition, Miss Bramwell submitted that since the effect of the Appellant's conduct was felt in Norway, her conduct occurred there for the purposes of section 137(2)(a). In support of this last submission, she relied on the decision of the House of Lords in Cando Armas [2005] UKHL 67.
12. The issue whether the requirement of double criminality was satisfied had not been raised before the District Judge. In consequence, there was a procedural, and logically prior, issue argued before us, namely whether this Court was required to address and to decide this issue, and if not so required whether it should do so. There was no good reason for its not having been argued before the District Judge: the omission was ascribed to inadvertence. For the Appellant, Mr Butt submitted that section 104(4)(a) distinguishes between an issue that was not raised below and evidence that is available at the hearing of the appeal that was not before the court below. In the case of evidence, the Act requires that it was "not available at the extradition hearing"; that qualification does not apply to an issue that was not raised below. He submitted that in any event the Respondent suffered no prejudice as a result of the issue being raised late; no new evidence was relied upon; and to extradite the Appellant if the double criminality rule was not satisfied would be unlawful.
13. For the Respondent, Miss Bramwell submitted that the double criminality issue must have been raised below, since the District Judge had been required by section 78 to be satisfied that the offence specified in the request was an extradition offence within the meaning of section 137. She further submitted that the general requirement that a litigant put forward his or her entire case at first instance applies equally to issues raised on an appeal under section 103. In this connection she relied on the decisions of this Court in Szombathely City Court and Others v Fenyvesi and Fenyvesi [2009] EWHC 231 (Admin) and Kalniets v Latvia [2009] EWHC 534 (Admin).

Discussion

14. The procedural issue raised on this appeal is by no means straightforward. We did not have a transcript or note of the hearing before the District Judge, but I assume that he decided that the offence was an extraditable offence as he was required to do by section 78(4)(b) of the Act. It would seem to have been effectively conceded that her conduct constituted an extradition offence. Does this mean that the issue was raised within the meaning of section 104? I think not. Generally speaking, issues are "raised" by the parties, not by the court. Section 104 might have referred to issues that had not been "addressed" or "considered" by the judge, but it does not. Furthermore, the issues that, if answered in favour of the accused person, lead to his discharge, are issues that the Act requires the judge to decide: see, for example, sections 79, 80, 86 and 87. Thus, if an issue is "raised" for the purposes of section 104 if it is one that the judge was required by the Act to decide, it is difficult to see to what issues it could relate. More importantly, section 104 distinguishes between an issue and a question. Section 78 refers to the matters to be decided by the judge as questions: see, in particular subsection (6). So the contention that the requirement of double criminality was not satisfied because the conduct would not have been criminal under the law of the United Kingdom raised an issue which, if the contention were upheld, would result in the question whether the offence specified in the request was an extradition offence being answered in the negative.
15. If the issue of double criminality was not raised before the District Judge, is it competent for the Appellant to raise it on appeal? We were informed by counsel that they had not found any previous decision of this Court as to whether the requirement that a party brings forward his or her whole case applies to a new issue that it is sought to raise for the first time on an appeal under section 103. I confess to being surprised that this question has not previously fallen for decision.
16. Undoubtedly, the Respondent is correct that the general rule is that a litigant must bring forward her entire case at first instance. In the Szombathely City Court case the Court cited the dictum of Sir Thomas Bingham MR inn Barrow v Bankside Agency Limited [1996] 1 WLR 257 at 260:

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.

17. However, Barrow v Bankside Agency Limited concerned civil proceedings, and both the extradition cases of Szombathely City Court case and Kalniets were cases in which the appellants sought to adduce on appeal evidence that had been available at the extradition hearing below. They were both Part 1 cases, relating to extradition to a Category 1 territory, but nothing turns on this, since the statutory wording is materially identical in a Part 2 Category 2 territory case such as the present. Section 104 precludes the court from allowing an appeal on the basis of such evidence, as is confirmed by the judgment of the Court in Kalniets at paragraph 18.
18. In the present case, the Appellant does not seek to adduce any new evidence. Her case has been made by reference to the documents before the District Judge. Her appeal is therefore not affected by the requirement that new evidence should not have been available at the extradition hearing. If, contrary to my view, the double criminality issue was "raised" before the District Judge, she was entitled to argue before this Court that that requirement was not satisfied.
19. Section 104 does not in terms compel the Court to allow an Appellant to raise an issue that was not raised at the extradition hearing: its provision is negative, precluding the Court from allowing an appeal if the applicable statutory conditions are not satisfied. However, it seems to me to be significant that section 104 distinguishes between a new issue and new evidence. I would therefore hold that where an issue was available to be raised by an appellant on the evidence adduced at the extradition hearing, she is in general, if not always, entitled to raise that issue on appeal to this Court, even though the issue was not raised at that hearing. In any event, I see no good reason why the Appellant should not be permitted to argue the issue before this Court. Extradition is an infringement of liberty, and while the Court is concerned to ensure that those who are the subject of conforming requests for extradition are lawfully extradited, the legal requirements for extradition are safeguards that must be observed.
20. The substantive issue turns on whether the conduct to which section 137(2) refers is that described in the basis for the request for extradition or that which is the subject of the charge. In my judgment it is the latter. The offence constituted by the conduct is that referred to in the charge, and that conduct is expressed to have begun on 10 March 2006. It is that charge that is "the offence specified in the request" within the meaning of section 78(2)(c) and ((4)(b). The date of 10 March 2006 was not specified in the basis of the charge without reason. It was stated to be the date of the decision of the Halogaland High Court. The Appellant was then in Slovakia. Her conduct in failing to return the children to Norway after that date was, it seems, an offence under the law of Norway, under which it is an offence to keep a child abducted, but it is accepted that in the case of a parent it would not be an offence under the law of the United Kingdom.
21. It would be wrong for the Appellant's extradition to be ordered if the charge she faces on her return, as set out in the papers enclosed with the request for extradition, would not satisfy the requirements of section 137. That she should not be returned if the charge against her does not satisfy section 137 is confirmed by the terms of section 95, i.e., in relation to specialty. Section 95 requires that there are specialty arrangements between the United Kingdom and the category 2 territory if, and only if, the person extradited may be dealt with for an offence committed before his or her extradition only if (leaving aside the option of being given an opportunity to leave the territory and the provisions of subsection (4)(c) and (d)) it is "the offence in respect of which the person is extradited" or "an extradition offence disclosed by the same facts as that offence". The offence in respect of which the Appellant would be extradited is that set out in the charge referred to in the request for extradition; an offence disclosed by the same facts would relate to the same period, following the decision of the Halogaland High Court, and would not be an extraditable offence. In my judgment, the statement of facts recited in the request for extradition, set out at paragraph 7 above, is "the mere narrative background" referred to by the Appellate Committee at paragraph 91 of their opinion in Norris v Government of the United States of America [2008] UKHL 16, [2008] 1 AC 920, and in so far as it goes beyond the conduct which is the subject of the charge it is to be ignored. See too the opinion of Lord Hope of Craighead (with which the other members of the Appellate Committee agreed) in Dabas v High Court of Justice Madrid [2007] UKHL 6, [2007] 2 AC 31 at paragraph 48:

… 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.

Conclusion

22. It followed that the issue raised on behalf of the Appellant on her appeal was one that would have resulted in the District Judge deciding the question whether the offence specified in the request for her extradition was an extradition offence differently, and if he had so decided that question he would have ordered her discharge: see section 104. Her appeal was therefore allowed.

Mr Justice Wilkie

23. I agree.