England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		12th October 2009

MR JUSTICE BLAKE:

1. This is an appeal against a decision of District Judge Riddle, dated 21st May 2009, given at the City of Westminster Magistrates' Court, whereby he ordered that the appellant Frantisek Balog be extradited to the Slovak Republic. The extradition offence is described in the European Arrest Warrant as making a threat to kill his wife. The circumstances of the offence are described as follows:

"... on 22.04.2004 approximately at 7.00pm in [a location identified] he threatened by a mobile phone to his former wife [and her date of birth is given] to kill her, thus he arose a reasonable fear in her to execute his threats since from the previous telephones calls of her sister she knew that he had brought a firearm for this purpose."

2. Threats to kill are punishable under Slovak law by a sentence of one year's imprisonment or a financial penalty but threats to kill directed to close persons or for whom there is a particular responsibility is punishable by up to two years and the requesting state has identified in the particular circumstances of this case two years was the maximum sentence.
3. Further information was provided to the District Judge in a letter of 5th March 2009 that the appellant is alleged to have "committed this crime in [a] probation period and he is very known to our files as recidivist so he was convicted before and this is not his first case". I accept that the extradition crime in this case is not said to be an offence of possession of a firearm or use of a firearm or a completed offence of causing violence to a partner or wife, nor is there any further detail as to precisely what the requesting state knew of his previous conduct and whether it included violence against partners.
4. The appellant challenges the decision of the District Judge on four grounds as follows: ground (1), delay in issuing the arrest warrant and proceeding thereafter; (2), a violation of the appellant's rights to respect for his private and family life protected by Article 8 of the European Convention on Human Rights that plays into UK law both under the Extradition Act and under the Human Rights Act; (3), a denial of a fair trial contrary to Article 6 of the ECHR; and (4) abuse of process in continuing to proceed with this request for extradition in the particular circumstances of the case.

The proceedings

5. The appellant was apparently arrested in Slovakia and detained overnight on 22nd April 2004. On the following day, 23rd April, two events happened. First, he was released from custody as it was considered not necessary to keep him in custody whilst the investigation continued. Secondly, the complainant in the case, his wife (or, as described in the arrest warrant, former wife) attended the police station and she withdrew the allegation against him. She told the District Judge in evidence that she not merely withdrew it but said that the allegation was false.
6. Nevertheless, the prosecuting authorities in Slovakia decided to continue with the investigation. There are procedural steps which they say they took in June 2004. A charge was brought in July 2004 and there was a judicial decision taken on 23rd July 2004 in which it seems, on the basis of the papers before the court and in the absence of the appellant's participation in the procedure, he was found guilty in his absence and sentenced to six months' imprisonment. After that matter had been investigated during the extradition proceedings, it transpires that that is not a final finding of guilt or sentence and, because it appears that notice given to the appellant was not effective for some reason, he will be able to apply to set it aside and the case can be retried. The precise nature of what happens at any further trial, if this appeal is dismissed, will be adverted to a little later on.
7. The appellant came to this country in the summer of 2004 and he had rented a house or flat in the north of England, had part time employment and had been joined in December 2004 by his wife, the complainant in the criminal proceedings. Further, there are a number of children of the union and the relationship. By the time of the hearing, there were five children of school age and the wife was pregnant with a sixth child who has subsequently been born and is thus a few months old today. The wife, unsurprisingly in those circumstances, was not economically active herself and would therefore have been dependent upon the appellant providing the money to accommodate them and support them. There was some recourse to social security to supplement the part time earnings. That would be legitimate recourse for any person exercising EU Treaty rights as a worker, as the appellant had clearly done.
8. Attempts in Slovakia to locate the appellant were unsuccessful, though on the account given to the District Judge not for want of trying by the prosecution authorities. In due course a warrant of arrest was issued in February 2005. In December 2006 it was discovered that he was in the United Kingdom and promptly thereafter the judicial authority of Slovakia issued a European Arrest Warrant that was communicated to the authorities in the United Kingdom.
9. There was then a gap then of some 14 months until the appellant was arrested in the United Kingdom in February 2008. There is no information before this court or the District Judge to explain that period. It may just be the pressure of processing the application in the United Kingdom.
10. Thereafter, matters proceeded with a reasonable degree of expedition, but on 18th April 2008 the defendant was discharged from the first arrest warrant that contained a flaw in describing the state that was seeking his return. The relevant UK authority had not accepted the invitation to amend the original warrant and it was in due course held invalid.
11. Further delay was caused when a second arrest warrant was issued within 28 days later. There was then a further delay when this appellant was arrested on 26th January 2009 on the second warrant that led to the hearing in May with the consequence previously indicated.

Rights to a fair trial

12. It was said on behalf of the appellant before the District Judge that, since the charge of threatening to kill must have been dependent upon the wife's evidence and that evidence had been withdrawn on the following day, then it was either an abuse of process or result in a procedure which would inevitably result in a violation of this appellant's fair trial rights protected under Article 6 of the ECHR were he to be returned to face a trial where the critical evidence had been withdrawn and disputed.
13. The wife had made plain to the District Judge that she did not intend to travel to Slovakia to give evidence for the state against her husband. Attention before the District Judge was focused upon the case particularly of Al-Khawaja v UK, a decision of the European Court of Human Rights given on 20th January 2009, where in essence the court found in a complaint from the United Kingdom that use by the prosecution of hearsay evidence without an opportunity to test orally inculpatory witnesses central to the prosecution case did not result in a fair trial.
14. The District Judge rejected that complaint, essentially because it was unknown what material might be available to the prosecuting authorities in Slovakia, even though the wife had withdrawn her complaint. He noted that the appellant had admitted before him that he had telephoned his wife when he was in drink, there was some suspicion of infidelity or something of that sort and he did so in the presence of the wife's sister. We also know that he was arrested. What he may have said by way of admission when arrested was unknown. Precisely what information the wife's sister could give is unknown, and in those circumstances it was impossible to conclude that the only way that this prosecution could be proceeded against in Slovakia would be by way of an unfair trial violating fundamental laws of fair trial protected by Article 6.
15. It is realistically recognised by Mr Levine, who appeared for the appellant today, that to set aside an European Extradition Warrant decision on the basis of unfair trial involves a high test which by itself is unlikely to be met in this case. It is not sufficient that there is a complaint that there may be some future violation if the trial were to be received in Slovakia, it is necessary for the appellant to demonstrate that there would be a flagrant violation of his rights to fair trial and the meaning of flagrant is spelt out in more detail by the House of Lords in the case of EM (Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; [2008] WLR 931, a decision of 22nd October 2008, which need not be further gone into.
16. Therefore, in my judgment, the District Judge was entitled to conclude that the ground based on absence of a fair trial was not made out. It is, of course, trite to note that the context of European Extradition Warrant cases includes the assumption that Member states of the European Union, who by reason of that membership must also be members of the Council of Europe and give effect to the requirements of the European Convention on Human Rights with its individual right of complaint to the Strasbourg Court. As a matter of judicial comity, the courts of this country can assume as a starting point that courts in other jurisdictions where a warrant has been issued will meet human rights standards in the trial process.

Abuse of process

17. Secondly, it is submitted that the matter was an abuse of process because of the way in which it was persisted in, despite the delays, set backs, and the withdrawal of the wife's complaint and her supporting evidence. Again, that submission was not developed by further submissions in this appeal, recognising the high test that the appellant would need to meet. In my judgment, the District Judge was perfectly entitled to conclude that there was nothing by way of an abuse in the decision of the Slovak authorities to proceed in the first place and to continue with the second warrant as a result of the error that may have occurred in London in the first warrant.That leaves the head of delay and Article 8.

Delay

18. As to delay, the chronology so far indicated in this judgment does not suggest that there were substantial periods of unexplained inactivity by the requesting state and nor is there any reason to believe that the appellant was in any way given a false sense of security that there would be no prosecution of him for this offence.
19. He may have hoped that there would be no prosecution if his wife had withdrawn her complaint but nothing was indicated to that effect and on the contrary it would appear that the authorities had proceeded with reasonable extradition to proceed to prosecute him and, in the normal course of events, those notices should have reached him. It is not suggested that he has absconded deliberately to avoid these proceedings or that he is in breach of bail but nevertheless it is not suggested that he had any reasonable or any other expectation that there would be no proceedings taken against him.
20. Although there are periods of some months where the proceedings took longer than perhaps it ideally should have done as this is a summary procedure. There was a muddle in the way that the request was progressed from December 2006 to January 2009. The period of delay and the circumstances in which the delay occurred do not amount to anything that would normally cause a District Judge to have any concerns that return of the offender would be unjust or oppressive by reason of delay, applying the guidance of the courts given first in the case of Kakis v Government of Cyprus [1978] 1 WLR 779 and more recently updated in the case of Gomes v Government of Trinidad and Tobago [2009] UKHL 21.
21. The latter case does not undermine the principle of the former that extensive inactivity by a prosecuting state that leads an unknowing suspect to change his position to his future disadvantage or leads to a reasonable assumption that proceedings will not be instituted or continued against him may result in injustice or oppression. Gomes resolves an issue which does not arise in the present case about whose responsibility it is for delay if there has been some absconding. So, again, as a ground in itself, the District Judge was perfectly entitled to conclude that delay did not set out a basis for challenging this removal.

Article 8

22. This leaves the second ground and the only ground that has caused me some concern during the hearing of this appeal, namely that removal of the appellant pursuant to the arrest warrant would be a violation of his human rights under Article 8.
23. In a recent decision of Norris v Government of the United States of America [2009] EWHC 995 (Admin), A Divisional Court presided over by Laws LJ and Openshaw J had to decide the impact of Article 8 on extradition cases. Summarising the decisions of the United Kingdom authorities, Laws LJ at paragraph 21 said this:

"In my judgment the learning, here and in Strasbourg, shows that the public interest in giving effect to bilateral extradition arrangements possesses especially pressing force because of its potency (a) in the fight against increasingly globalised crime, (b) in the denial of safe havens for criminals, and (c) in the general benefits of concrete co-operation between States in an important common cause. The gravity of the particular extradition crime may affect the weight to be attached to these factors, but because they are of a strategic or overarching nature, the public interest in extradition will always be very substantial. Accordingly the claim of a prospective extraditee to resist his extradition on Article 8 grounds must, if it is to succeed, possess still greater force. That is why there must be 'striking and unusual facts' (Jaso), and 'in practice a high threshold has to be reached' (Tajik)."

24. I observe that those last two are references to authorities of similar issues in this court. That sufficiently identifies the threshold that the appellant has to reach in this case and I also take account of the outcome of the application of that test in paragraph 38 of Norris.
25. This aspect of the challenge did not appear to receive a great deal by way of reasons from the District Judge, who focused his attention on delay, fair trial and abuse. He did address the issue and concluded that it would not be disproportionate to the appellant for him to be returned to face his trial.
26. In my judgment, in this case, there were potentially striking facts that both engaged Article 8 and could be said to give rise to a credible submission that it would be disproportionate, and not therefore a fail balance of competing considerations, if this appellant were to be returned to face this trial on this charge.
27. First, the family appeared to have made a fresh start in the United Kingdom since December 2004 and there is no indication that the complainant's wife has been the victim of any adverse attention by the appellant in this country. Second, the family life that the appellant enjoys with his wife and now six children in the United Kingdom is a settled one. It was not disputed that the five elder children, whose ages were not revealed to the District Judge or this court, are integrated into the UK education system here. Third, this settled pattern has been extended over a period of nearly four years before the existence of the warrant came to the appellant's attention. Fourth, the effect of the return of this appellant to face trial and, if convicted, sentence in Slovakia is not so much upon him as an individual but his wife and children living here in a new life and dependent upon him for their ability to remain here.
28. On the limited facts that were before the District Judge, it is not difficult to see that the appellant's removal would undermine her capacity to remain independently in the United Kingdom during any period of trial and sentence. She cannot at present be expected to be economically self sufficient, pay the rent and support her family and, to some extent, if she does not have any economic self sufficiency and her husband has left the jurisdiction, then her own entitlement to remain becomes increasingly questionable under even EU free movement law. A person who is not economically active and not self sufficient or supported by a family member does not have a claim to remain in the United Kingdom for an indefinite period and may not be able to access social assistance if they do not have a right of residence : see Abdirahman and Ullosow v Secretary of State for Work and Pensions [2007] EWCA Civ 657 July 2007.
29. Fifth, it therefore is the somewhat paradoxical situation that it is the complainant in the underlying criminal proceedings in Slovakia who would appear to be a person who would suffer substantial detriment if the appellant's return is effected and assuming a fair trial follows within a reasonable period of time, there is a conviction and during the period that such sentence is implemented. That does seem to me to be an unusual and striking feature of this case. Of course any family member of someone who is wanted for crime will suffer if the interests of justice take there course and there is a substantial period of imprisonment. In the case of Mrs Norris the Court of Appal noted that the removal of her husband would cause her a loss of support albeit that there was no reason to believe that she could not visit her husband in prison. But Mrs Norris was not the victim of crime, she did not face loss of her home through financial destitution, loss of her ability to continue to reside in the country she has made home as an EU citizen, and if she did remain here a practical inability to visit her husband on remand or during a sentence to be served in Slovakia because of her commitments as a mother of six children and an absence of income.
30. Nevertheless, as against that, the authorities in Slovakia are perfectly entitled to conclude, as they frequently expressed the opinion that they did, that they take the view that, notwithstanding the withdrawal of the complaint by the wife, this was a serious offence that they considered appropriate to prosecute and to pursue through this request. Clearly any violence in a domestic context upon any partner, particularly a woman with small children, is a serious matter and a threat to kill is particularly serious. Further, the particular circumstances, outlined at the beginning of this judgment, include what are said to be aggravating features about the threat to use a weapon and that at least this was a threat by someone who was known to the police for some other offences and was on probation at the time that these offences were committed.
31. I accept further, not merely within the extradition context but in the criminal justice context, that the District Judge was entitled to observe that similar problems of prosecuting in circumstances where domestic cohabitees withdraw the complaint are known in the United Kingdom. He relied upon the case of R v C [2007] EWCA Crim 3463, a decision of the Court of Appeal Criminal Division pointing out the public interest in pursuing such cases even where the victim does not wish to proceed.
32. I fully accept the appellants submissions that the facts of this case are fundamentally different from those in C, which was a case where:-

a. there was actually violence inflicted on the wife;

b. even in the absence of the evidence of the complainant, for reasons identified in that court, there may well have been sufficient evidence to proceed and

c. the public interest test had been mediated in the United Kingdom by the Code for Crown Prosecutors, published by the CPS in 2005, where there is no evidence that the Slovakian prosecutor has balanced the prospects of success and the impact of prosecution on appellant and family alike.

33. I have carefully looked at the witness statements that were before the District Judge and that are very slight upon the impact of the possible return upon the appellant and his spouse and family. There is not much more that was developed in the cross-examination or oral evidence of the witnesses called on behalf of the appellant below, himself and his wife, and little was concretely known about the possible effect of return of the appellant upon the young children in any detail.
34. This is a case in which the court will primarily look at the evidential picture before the District Judge, in the absence of any other application to adduce fresh evidence before this court, of which there has been none, and has to decide whether the decision was right or wrong on the basis of all that evidence, rather than explore new arguments and new issues which may not have been central to the way the case was put below. It does not appear that submissions as to the immigration and social security consequences for the wife were made.

Conclusion

35. Having regard to the above consideration, I conclude that the District Judge was entitled to reach the conclusion that this was indeed a serious case that the prosecuting authorities were entitled to pursue and the particular impact upon the family had not been such as to require him to conclude, or leads this court now to conclude, that the outcome is that removal is disproportionate.
36. If it had not been for the aggravating factors of threat of a weapon and the alleged recidivism, I anticipate that I would have reached a different conclusion in this case because, serious as even threats of violence to a domestic partner are, that seriousness has to be seen in the context of ways in which offending engages the extradition warrant. Further the seriousness of the offence ought to assessed having regard to the attitude of the partner to the future and the impact of the extradition request upon the continuing subsistence of family life in this country. Whilst I accept that in assessing seriousness it is not possible in an extradition context to apply the same kind of considerations that the courts have now become skilled in applying in the immigration or deportation context. It is apparent that a single instance of the conduct of the sort alleged would not be capable of amounting to public policy reasons to override the fundamental free movement rights of the appellant under EU law.
37. Although this court has a limited jurisdiction in ensuring that cases are indeed appropriate cases for return under the Extradition Act, the requirement of ensuring that decisions are not taken that result in a disproportionate violation of Article 8 is a potentially important consideration where the criminality is at very much the lower end of the scale and where there has been a degree of staleness between the offence committed and the final decision on return, where the facts of the case cannot be said that there has been an absconding from justice, which is a strong factor against the appellant, and where the family have relocated to the new jurisdiction to make a fresh start and have appeared to make a good fresh start. In my judgment, all those are considerations of weight and the circumstance that it is the victim of the crime who may suffer from return is a consideration likely to be of very great weight in other cases.
38. However, the precise exploration of impact and assessment of the seriousness of the offence which I have indicated lead me to conclude that this appeal should be dismissed for the reasons I have stated.
39. I would add by way of postscript, that the decisions of the UK courts are based upon the expectation that the requesting state will proceed with a trial speedily. If there is a trial and a contest of guilt, that the procedure it will adopt hereafter will be compatible with Article 6. Decisive evidence relied on by the prosecution should be capable of challenge by the appellant in accordance with the principles of the Court of Human Rights in Al-Khawaja. Whatever its criminal procedure code says, the Slovakian court will also be applying, European laws of fair trial and not asking itself whether there has been a flagrant breach but any breach at all.
40. Moreover, the court is confident that the Slovakian court is both entitled and indeed bound to take into account the impact of the delay and the potentially serious effect on the wife and children of a long sentence that may result in loss of home, disruption of schooling and a destruction of their new start. The overall respect for human rights and family life required of all courts within the European Union requires it.
41. Thank you both for your submissions.
42. MR LEVINE: I am obliged, my Lord. May I make two applications? The first is for a detailed assessment of legal aid. This appellant is legally aided, is publicly funded, in this matter. The second is that my Lordship raises a number of points which may be of some significance. May I ask in those circumstances for an extradited transcript of my Lordship's judgment?
43. MR JUSTICE BLAKE: Yes, I will order it expedited.
44. MR LEVINE: I am most grateful.
45. MR JUSTICE BLAKE: Thank you very much.