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
		16th September 2010

1. MR JUSTICE BLAKE: This is an appeal from a decision of designated District Judge Evans, sitting at the City of Westminster Magistrates' Court on 11th February 2010, authorising the return of the appellant to the Czech Republic pursuant to an extradition request made by the District Court in Kladno under a European arrest warrant issued by the Czech Judicial Authority on 5th November 2008 and certified by the Serious Organised Crime Agency later.
2. It is common ground that the subject matter of the arrest warrant was a conviction and sentence for two offences arising out of the same facts, robbery and extortion. The appellant was present during his trial when he was convicted, but deliberately absented himself before the sentencing phase and he was sentenced to a total of four years' imprisonment. It seems that he had an antecedent history that was taken into account in imposing that level of sentence, and on the information provided by the requesting state the sentence was not at the maximum that was available for that kind of offence.
3. The appellant is of Roma ethnicity and resisted his return on the basis of his ethnicity and the consequences that he would face upon return based upon his ethnicity. Both before the District Judge and before this court he relies upon the following provisions. First, section 13 of the Extradition Act 2003, which reads as follows:

"A person's extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that — ...

(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race ..."

It is unnecessary to deal with the other grounds that might be relied upon under that Act since they do not arise in the present case.

4. Equally, the appellant has relied upon Article 2 of the European Convention on Human Rights, the right to life, and Article 3, the right not to be subjected to inhuman or degrading treatment or punishment, and in a fourth ground of appeal he alleges that his return would be contrary to the human right principles incorporated in European Union law.
5. In my judgment, it is only section 13 of the Extradition Act that requires the court to examine the evidence in this case. I conclude that there is nothing in any of the other three grounds of appeal that the appellant presented below and has renewed today. Briefly, in respect of those he alleges that he is at risk of violence whilst serving a sentence and that there is inadequate state protection. The designated judge did not find him a particularly reliable witness about the narrative of his fears, and in any event it is well established by a great many cases at all levels of the judicial hierarchy in the United Kingdom that a violation of Article 2 or Article 3 three will not be made out if there is a sufficiency of protection by the authorities to address violence in prisons, even violence against Roma defendants in prisons, and that does not require a perfect system of prevention but simply reasonable measures.
6. At the outset of this this morning's hearing there was a request for an adjournment by Mr O'Donoghue, counsel who now appears for the appellant, on the basis that although his instructing solicitors had taken over the conduct of the case on 13th May of this year, they were still hoping to produce evidence of the risk of violence towards the appellant at the hands of others. There have been in fact two judicial adjournments of this case, and at the last one Dobbs J gave directions for the hearing, which in the event were not met. When asked whether the search for supporting evidence on the question of violence had developed any further, the court was informed no more than that it was hoped that a member of the family could provide some information. I refused the adjournment, both because the material did not seem to be likely to be forthcoming within a reasonable period of time and because there had been previous adjournments, and, thirdly, because in any event it is unlikely to be decisive given that the answer to that case is the system that the Czech Republic has of giving a reasonable agree of protection to those serving sentences from violence, and that is a sufficiency of protection within the meaning of human rights law.
7. As to the EU ground that was developed, again little needs to be said about that. In my judgment, the contention that the development of the EU charter and EU principles of anti-discrimination requiring states to take measures to improve their laws against discrimination is no way had a freestanding ground to resist this return. If anything, on the contrary it demonstrates that in states where discrimination had in the past occurred and had not been adequately addressed, they are now under an obligation to take more effective measures.
8. Mr O'Donoghue drew to my attention the 21st preamble to the EU discrimination directive and suggested that that might have something to say about the burden of proof in an extradition case. I reject that submission. The 21st preamble, and indeed the substance of the directive, is concerned with national measures to ensure that private citizens can have effective recourse the courts of their own country in pursuing actions for discrimination, whereas if a person seeks to resist extradition which is otherwise lawful and the criteria made out, he or she has the burden of demonstrating that the particular provision, whether it be human rights law, section 13 or something equivalent to a refugee law, is applicable to them to prevent the removal. That has historically been the case in extradition law and that has not changed.
9. I now turn to the section 13 arguments. The high point of the appellant's case is a report that he tendered by Ms Lucie Fremlova, who is an expert on Roma rights who has worked in that area for the past 11 years, both in the Czech Republic and the United Kingdom. She presents a substantial written report of some 20 pages demonstrating the background of deeply entrenched discrimination against the Roma in Czech society, concerns about a number of events that have happened, particularly with regard to violence against Romas from the population as a whole and the concerns that have resulted at various levels and institutions in the Council of Europe, the European Union and indeed national authorities who have had the task of determining Czech Roma asylum claims. I note in passing that indeed this appellant did claim asylum in this country on the grounds of his ethnicity. That application was dismissed. It never proceeded to an appeal because by that stage the Czech Republic had joined the European Union.
10. However, it is well recognised in the authorities to which the respondent has helpfully drawn the court's attention that a mere background of discrimination will not suffice for the appellant to make out his case under section 13. In this case it was agreed that no point arose about the nature of the conviction itself. He was present at the trial, he was legally represented and there is no suggestion that the finding of guilt was contrary to the evidence or perverse or otherwise materially influenced by the fact of his ethnicity. So the issue focuses upon whether the sentence that he received of four years was an outcome of prejudice based upon his ethnicity of such a nature as to bring it within section 13.
11. It is common ground that a provision such as section 13 should be approached not on the basis of proof of probability that a person would be prejudiced by reason of his ethnicity, but whether there is reasonable degree of likelihood, reasonable grounds or reasonable risk. Matters of that sort have often been used. That is the gist of the approach which a judicial body should take when making that assessment.
12. Ms Fremlova, at page 11 and 12 of her report, cites some research to suggest that defendants who are Roma have been disadvantaged in some ways in the Czech criminal justice system. She appends, helpfully, the reports commissioned by the European Roma Rights Centre on which that data appears to have been based. It is fair to say that those reports are more than ten years old and certainly seem to be based upon studies made in the late 1990s, rather than contemporary studies, and Ms Fremlova herself recognises there are no contemporary studies. Moreover, when she gave evidence before the Magistrates' Court she accepted, both in her report and elsewhere, that she has no particular expertise in discrimination in the field of criminal justice in the Czech Republic, and in particular in sentencing.
13. At paragraph 8 of his judgment, District Judge Evans says this:

"Lucie Fremlova gave live evidence before me and I do not doubt the sincerity of her opinions. I asked her if, in present times, a doctor in the A&E department of a hospital would provide inferior medical treatment to a Roma patient than he/she would to a non-Roma patient. Very depressingly she said that is exactly what would happen. There must be the possibility of someone conducting some proper academic research, taking into account all the relevant variables, and thereby providing a proper basis for considering whether generally there is proper support for the evidence of systemic discrimination in the criminal courts. The material provided here is wholly inadequate. Ms Fremlova accepted that she had no direct experience of the CJS [which I take to be the criminal justice system] and the core material she relied upon in order to support her thesis was historical and pre-dates the Czech's Republic's accession to the EU. She accepted that a number of statutory provisions had come into force over the last ten years, all designed to combat racial bias within the CJS, whether that bias was conscious or unconscious, but she thought that judges paid lip service to any such provisions; presumably because she thought prejudice was so entrenched. She was not prepared to accept that there had been any improvements over the last ten years."

14. In my judgment, those remarks should be seen in context. I would not accept that a claimant could not make out a section 13 case simply because there was no definitive academic support for the contentions that he makes, but I do accept that one cannot move from a general picture of background discrimination to demonstrating a reasonable degree of likelihood and prejudice in the sentencing process without more. Something more would need to be shown, for example that the sentence was seriously different from that which ought to have been applied in such a case, either by way of sentence guidelines, comparative cases or something said in the sentencing remarks themselves that indicate that it may well have been based materially upon prejudice.
15. I agree with the judge that overall, taking the picture at its highest, the defendant before the magistrates' court, now the appellant before this court, has not made out a case that there was a reasonable degree of likelihood that his level of sentence was materially influenced by his ethnicity. On that basis that ground of appeal must be dismissed.
16. For those reasons this appeal is dismissed.
17. MR O'DONOGHUE: May I formally apply for leave to appeal.
18. MR JUSTICE BLAKE: Application refused.
19. This actually would be leave to appeal to the Supreme Court, would it not, because it is a criminal cause or matter?
20. MR O'DONOGHUE: My Lord, yes.
21. MR JUSTICE BLAKE: So you would need a certified point of law.