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 WC2A 2LL
		28 October 2009

1. LORD JUSTICE ELIAS: The appellant challenges the decision of District Judge Nicholas Evans to order his extradition in accordance with section 21(3) of the Extradition Act 2003.
2. The appellant is subject to a European Arrest Warrant issued from a court in Romanian. It states that he was sentenced in his absence on 27 January 2004 to a term of imprisonment of three years in respect of an offence of what was described as qualified theft. He stole ten chickens from an secured chicken coup from a neighbour. Shortly thereafter he destroyed the birds by throwing them into a river, although he subsequently paid appropriate compensation to the injured party.
3. On 19 February 2003 he had received in his absence a suspended sentence of three years' imprisonment. However, on 27 January 2004 the Tribunal at Iasi upheld an appeal against sentence pursued by the Prosecuting Magistracy and annulled the suspension term of the sentence. Accordingly, Mr Sandru became subject to a three-year sentence of imprisonment. He was not present at that hearing either. He says he had no knowledge of the appeal, and indeed that this remained the position until he was arrested under the European Arrest Warrant on 26 December 2008. The basis of his appeal is that it would contravene Article 8 of the European Convention on Human Rights if he were now to be extradited.
4. By section 21 of the Extradition Act 2003 it is specifically provided that a person must be discharged if his extradition would be incompatible with his human rights. The judge held that there would be no breach here. It is plain that if the judge was wrong about that, then he would have been obliged to discharge the appellant pursuant to section 27(3) of the Extradition Act.
5. Article 8 is very well-known and is 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 such 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."

6. The essential issue raised in this appeal is directed at proportionality, namely that it is said that it is disproportionate to extradite the appellant given the interference with his private life. There is plenty of authority demonstrating how difficult it is for such an argument to succeed. In Jaso v Central Criminal Court No.2 Madrid [2007] EWHC 2983, Dyson LJ stated at paragraph 57:

"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."

7. In Ahsan (R on the application of) v Director Of Public Prosecutions [2008] EWHC 666, Richards LJ stated that the practical reality was that Article 8 would rarely provide a ground for refusing extradition. More recently, in Norris v Government of United States of America [2009] EWHC 995, after an extensive review of the United Kingdom authorities on Article 8 and extradition, Laws LJ said this at paragraph 21:

"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' ... and 'in practice a high threshold has to be reached'."

8. The appeal is put on two related bases. Before considering that, however, in our judgment it is pertinent to note that, in this case, there is a marked lack of evidence on what is said to constitute any striking or unusual feature demonstrating that there would be serious interference with family or private life in this case. The appellant is here for only a limited period of time and came in January 2007, and was married to his Romanian wife two years later apparently after extradition proceedings had been started. His wife had been here since 2004, though it is not suggested that she could not return to Romania with him. There is no question of children being adversely affected or of anyone suffering ill-health, or any caring responsibilities. Nor is there any evidence of any other striking detrimental consequence to the appellant or his wife, or any other family member resulting from the appellant's return.
9. Miss Evans, counsel for the appellant, emphasises the delay that has now occurred since the original sentence in 2003. She says that is a factor that should be weighed into account. This was not somebody who was fleeing from the Romanian authorities; he genuinely did not appreciate when he came to the United Kingdom that he was subject to this sentence of imprisonment. But that itself can be of only marginal weight when considering an Article 8 matter.
10. What then are said to constitute the striking and unusual features? The main argument advanced by Miss Evans is that the court should have regard to the relatively trivial nature of the offence and the length of sentence imposed. She says that, in those circumstances, and bearing in mind the other factors to which I have made reference, it was disproportionate to require extradition in this case. I do not accept that triviality of the offence or length of sentence can, certainly in circumstances of this case, begin to bring this case within Article 8. No doubt the length of sentence is relevant to the degree of interference in private and family life, but it does not of course affect the principle that extradition treaties should be honoured.
11. Equally, the circumstances of the offence and the gravity of the sentence do not seem to me, at least in most surmisable circumstances, to be a material matter for the courts to consider when determining Article 8 issues. In a conviction appeal of this kind, the sentence must have been at least four months before extradition can be justified: see section 65(3)(c) of the Extradition Act. Once that and the other material considerations are satisfied, the extradition must be ordered.
12. In my judgment, it is not open to the courts of this country to say that, in the circumstances, the offence is so trivial or that the sentence so disproportionate to the offence that extradition would be inappropriate. By contrast, triviality was a ground for refusing extradition under the Extradition Act 1989.
13. As Sir Anthony May (President of the Queen's Bench Division) observed in the case of Dirsyte v Prosecutor General's Office of the Republic of Lithuania:

"I agree, in particular, that a search for striking and unusual features for the purpose of considering the proportionality under Article 8 of the European Convention on Human Rights of the appellant's extradition would not, or at least would not normally, be found by reference to the seriousness or other features of the extradition offence."

14. I respectfully agree. I recognise that in Zak v Regional Court of Bydgoszcz Poland [2008] EWHC 470 at para 23, Richards LJ expressed the view obiter that he saw no reason why the seriousness of the offence for which the extradition is sought should not be put in the balance in an Article 8 case. I respectfully doubt with whether that is so, save perhaps in the most exceptional circumstances. It would risk undermining the principle of mutual respect which underpins Part 1 of the Extradition Act. Insofar as it is requiring our courts to question or review the appropriateness of the sentence passed by a foreign court, it is asking these courts to exercise a function they are ill-equipped to carry out. The appropriate sentence is, in part, a function of culture, and in any event the courts here have limited information about the factors leading a foreign court to impose the sentence it did.
15. It may be, for example, that in this case the Romanian courts treat theft of livestock and its subsequent destruction far more seriously than English courts would typically do. If the sentence is thought to be too high, the answer is to challenge it in Romania, which indeed is precisely what the appellant apparently is doing in this case.
16. I should just add that in Zak itself the court concluded that, on the facts, the Article 8 claim plainly failed, notwithstanding that the offence was apparently relatively trivial, namely handling stolen goods - the goods being a mobile phone of lower value than the chickens in this case - and notwithstanding the degree of interference with family life was far more severe than here.
17. Miss Evans also relies, partly as a related ground, upon the fact that the judge, she says, made certain factual errors in his original determination. It is not necessary to set these out. The one which she submitted had particular relevance here is this: the papers before the court suggested that the appellant had simply been subject to two minor convictions in the past. The judge considered that this was not the true position because the Romanian authorities, in the documents produced to the court, referred to the appellant as a recidivist, and the judge suggested that this would indicate a more serious antecedent history than simply the two offences for which the court was expressly notified. Miss Evans submits that this was an unjustified and improper inference for the judge to make.
18. The only conceivable relevance of that, as I think Miss Evans accepted, is that it might suggest that the sentence of four years was harsh for the particular offence. As I have indicated, however, I do not think that the triviality of the offence, or the sentence imposed with respect to it, are in this case proper factors to bear in mind in any event.
19. There are a certain number of other factual errors which were identified, but the truth is they go nowhere because they do not in any sense engage the Article 8 issue. They are quite irrelevant to the balancing exercise that has to be carried out in an Article 8 case.
20. For these reasons, I reach the very clear conclusion that District Judge Evans was right to say that there was no breach of Article 8 in this case. We are far away from the identification of any striking or unusual features which would make extradition disproportionate and involve a contravention of the Article 8 rights of the appellant.
21. Accordingly, the appeal fails.
22. MR JUSTICE OPENSHAW: I agree.