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
		26th September 2012

The President of the Queen's Bench Division:

This is the judgment of the court.

1. These two appeals against decisions of District Judges that the appellants should be extradited were heard together with a third appeal, as the appeals had been delayed pending the decision in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 decided by the Supreme Court on 20 June 2012. We give this judgment in these two appeals only.

Applications for adjournments for reports

2. In each of the cases, there was an application to adjourn on the basis that reports were needed from child psychologists or the local authority. Applying the principles set out by Lady Hale at paragraphs 82-86 of her leading judgment in HH, we refused all the applications. There was before us the evidence of the mother and other members of the family. In each case it was clear how the interests of the child or children would be affected by the extradition of their mother. As may well be the position in many cases where there is, as there should be, evidence from the family before the court, there were no special features which called for further investigation or for reports. The evidence of the mother and family members was quite sufficient.

I: JP v District Court in Ústí nad Labem

(a) The facts

3. JP was born on 4 January 1981 in Slovakia; she is a national of the Czech Republic. Prior to April 2004, she had three children with her partner, MG, - a daughter, J, born on 25 May 1998, a son, N, born on 25 October 2000 and a daughter, M, born on 26 January 2004.
4. On 7 April 2004 she was convicted of one offence of theft which related to theft from shops between 6 April 2003 and 11 January 2004. The items stolen were of low value such as a baby jacket, perfume, deodorant, shampoo, crayons, and the like. The total value was under £200. She was sentenced to 10 months imprisonment which was suspended. There was no information as to the conditions of the suspension.
5. On 17 June 2005 she had another child, P. It appears she served a period of 50 days detention in the Czech Republic during 2005 for an unrelated offence.
6. On 9 July 2007, the District Court at Ústí nad Labem in the Czech Republic activated the suspended sentence. It is not known why this was done.
7. In October 2007 the appellant and her partner, MG, and her then four children came to England. Her evidence to the District Judge was that no conditions were attached to the sentence and she was free to leave the Czech Republic. The District Judge found that hard to believe. He concluded that it looked as though she fled the Czech Republic in order to avoid having to serve a sentence of 10 month's imprisonment.
8. On 17 April 2008 her fifth child, a daughter, S, was born in the United Kingdom.
9. On 20 November 2009 a conviction EAW was issued by the District Court at Ústí nad Labem. The EAW was certified by SOCA on 9 June 2010.

(b) The decision of the District Judge

10. The extradition hearing took place before District Judge Evans at Westminster Magistrates' Court on 11 July 2011. The only challenge to the extradition was raised under Article 8 of the ECHR. The District Judge decided the issue on the basis of the law as set out in Norris v Government of the United States of America (no 2) [2010] 2 AC 487. In the course of his judgment he found that:

i) The appellant was a full-time mother. With shopping, cooking, laundry, trips to and from school and other tasks, she had little time for anything else.

ii) Her partner, MG, was employed as an odd-job handyman, cleaning windows, clearing gardens and putting his hand to any job he could. He was the sole breadwinner. In addition to his wages, MG received £290 per month of State benefits.

iii) If the appellant was returned to the Czech Republic for 10 months there was a real problem as to what fate would befall the children. If MG were to look after them he would not be able to work and that might mean he would not be entitled to child benefits under the complex provisions relating to those who come from the Czech Republic and other Member States which had acceded to the European Union at the same time. The appellant's mother lived in the Czech Republic but the appellant's evidence was she did not know her address or telephone number and had not spoken to her for years.

iv) The appellant's sister lived in the Czech Republic and had four children. She probably could not cope with looking after more.

v) MG's father lived in England in the same road as the appellant. The appellant's evidence was that he occasionally looked after the children but as he worked for a company producing eggs he would not be able to take on the children full-time. The District Judge had doubts about that.

vi) The District Judge found that very little effort had been employed in trying to make a suitable arrangement to accommodate the children in the event of the appellant's extradition. All effort had been directed to trying to frustrate extradition by seeking to rely upon Article 8. He would have expected the appellant to have contacted her mother to see if she might be prepared to come to England to look after the children and if that failed should have explored all other possibilities.

vii) The District Judge considered it was unnecessary to hear expert evidence on the difficulties that would be caused to the children by her return. He accepted that it was likely to have adverse effects on the children given their ages then of being between the ages of 13 and 3.

(c) The further evidence on the appeal

11. An appeal was lodged on 15 July 2011. In the light of the delay occasioned by the appeal decision in HH and the time that had therefore elapsed, the court, in the interests of justice, received evidence from Mr Grange of JP's solicitors. That evidence can be summarised as follows:

i) In August 2011 MG had gone back to the Czech Republic and there were problems with obtaining benefits. By September/October 2011 MG returned to her and has remained with her.

ii) In January 2012 with the assistance of a Legal Expert Advisory Panel established by Fair Trials International, a member of the panel in the Czech Republic was asked to assist in making an application to the court to re-suspend the sentence. Some time in the early part of the year that application was made to the District Court. The District Court rejected it apparently without giving any reasons. It would be helpful for the future if the requesting judicial authority provided a copy of the decision in cases where Article 8 issues arose.

12. It was submitted on behalf of JP that she was the primary carer of the children, the youngest of whom was 4 and the oldest 14. MG, her partner, could not be relied on to care for the children and there were no other carers. The offences were trivial and had occurred a long time ago. This was a case where the balance plainly favoured the interests of the children

(d) The approach in the light of HH

13. Our task is to examine carefully the nature and extent of the way in which extradition will interfere with family life. In each of these cases where the interference relates to the children's rights, we must make a proportionate judicial assessment of the conflicting public interests of safeguarding the rights of the children under Article 8 and the obligation under the Framework Decision to return the appellant to serve her term of imprisonment, the strong public interest in the extradition of those convicted, the honouring of extradition treaties and ensuring that the United Kingdom does not become a safe haven for those who have committed a criminal offence (see Lord Judge in HH at paragraphs 121and 125; Lord Wilson at paragraphs 152, 156 and 167).
14. We make that assessment on the basis that the children's interests must be at the forefront of the decision maker's mind and be a primary consideration. (see Lord Mance in HH at paragraph 98 and Lord Wilson at paragraph 153), though the order in which their interests should be considered may be more a matter of debate (see Lady Hale at paragraph 33, Lord Mance at paragraph 98, Lord Kerr at paragraph 144 and Lord Wilson at paragraph 153).
15. It is permissible as Lord Judge explained at paragraph 132, where the interests of the child might tip the sentencing scale here, to consider what a court sentencing in this country would do:

"When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence).

(e) The interests of the children

16. JP has five children aged between 14 and 4 of which she is the primary carer. It is self evident the effect on them would be severe. The mother would be absent for 10 months; it would not be practicable for her children to visit her.
17. As JP's sister and mother lived in the Czech Republic, they were not able to look after the children. Although the difficulties in MG, the children's father, looking after the children was spelt out by the District Judge, there is no good reason why he and his father could not care for the children during her period of absence. Thus although the children will be deprived of the primary carer, they can be looked after by their father with the assistance of his father.

(f) The public interest: a minor crime

18. It is not open to us to question the decision of the requesting authorities to issue a warrant. We must bear in mind that this case is their case, not ours. If there are grounds for leniency, the proper place for that to be exercised is in the Czech Republic (see Lord Hope in HH at paragraph 95). However it is clear, as we have set out, that, when considering the rights of the children under Article 8, we must take into account the proportionality, on the one hand, of the effects of extradition on the interests of the children and, on the other, the seriousness of the crime committed and the public interest in JP serving her sentence for that crime and not using the advantages of free movement within the European Union to evade punishment.
19. The question of proportionality in the issue of EAWs for minor offences was highlighted as a major issue in an evaluation report made in 2010. The report pointed out that in some Member States there was a proportionality check; in others there was none. The report was considered by the Council of the EU and on 11 April 2011 the Commission issued a report to the Council and Parliament of the EU (Com (2011) 175 Final) to a summary of which we were referred briefly by Mr Fitzgerald QC. On the issue of proportionality, the report stated at page 7:

Confidence in the application of the EAW has been undermined by the systematic issue of EAWs for the surrender of persons sought in respect of often very minor offences. In this context, discussions in Council arising from the conclusions of the Member State evaluations show that there is general agreement among Member States that a proportionality check is necessary to prevent EAWs from being issued for offences which, although they fall within the scope of Article 2(1) of the Council Framework Decision on the EAW, are not serious enough to justify the measures and cooperation which the execution of an EAW requires. Several aspects should be considered before issuing the EAW including the seriousness of the offence, the length of the sentence, the existence of an alternative approach that would be less onerous for both the person sought and the executing authority and a cost/benefit analysis of the execution of the EAW. There is a disproportionate effect on the liberty and freedom of requested persons when EAWs are issued concerning cases for which (pre-trial) detention would otherwise be felt inappropriate. In addition, an overload of such requests may be costly for the executing Member States. It might also lead to a situation in which the executing judicial authorities (as opposed to the issuing authorities) feel inclined to apply a proportionality test, thus introducing a ground for refusal that is not in conformity with the Council Framework Decision or with the principle of mutual recognition on which the measure is based.

20. We were also referred to an evaluation report made in 2009 for the Council of the European Union on the practical application by the Czech Republic of the use of EAWs (15961/2/08). The report pointed out that criminal proceedings in the Czech Republic are governed by the principle of legality; the prosecutor is obliged to prosecute all offences reported except in cases expressly prescribed by the Code of Criminal Procedure (see page 5). EAWs are issued by the court. The Code of Criminal Procedure provides that an EAW should not be issued if the surrender would entail "costs or consequences for the Czech Republic that are manifestly disproportionate to the public interest in the person in question being criminally prosecuted or serving a custodial sentence" or "would be disproportionately detrimental to the person concerned compared with the advantage to be gained by criminal proceedings or the repercussions of the criminal offence, particularly in view of the person's age or family circumstances." The report pointed out that there were no guidelines to assist the judicial authorities in assessing such circumstances.
21. Although there is nothing in the information before the court to show that a proportionality check was carried out by the judge in the Czech Republic in conformity with the provisions to which we have referred on the occasions when JP's case was considered, it is for the requesting state, within the scheme of the Framework Decision, to determine that question when deciding to issue an EAW. Although we must have regard to that fact and the obligations of mutual confidence, nonetheless, as is clear from the decision in HH, it is for the courts in the United Kingdom to examine proportionality of extradition under the EAW when an issue arises under Article 8.
22. In the appeal in F-K which was joined with HH the mother's extradition was sought for prosecution for offences of misappropriating goods to the value of £4307 and falsifying customs documents and instances of fraud amounting to £1160. These were described as not trivial, but not among the first rank of offences. In the present appeal, the offence can be described as at the minor end of the scale, as the value of the goods stolen on each occasion was very low and the total value of the thefts over a 9 month period was £200. The offences were committed in 2003-4. JP's position is nonetheless aggravated by the fact that she left the Czech Republic knowing that she was evading her punishment.

(g) The balancing exercise

23. We have no doubt that the interests of the children would be severely disadvantaged by their primary carer being extradited to the Czech Republic with no opportunity of seeing her during her period of imprisonment. We also accept that no court in England and Wales would have considered that the offences passed the custody threshold. A court here would not therefore have imposed a suspended sentence.
24. However we must guard against imposing our views of the seriousness of offences and of sentencing on another State. There is moreover no reason to doubt that the court would have known of the circumstances of JP when the suspended sentence was imposed in 2004, when it was activated in 2007 after the commission of another offence in 2005 and when the application to which we have referred at paragraph 11.ii) was made earlier this year. JP knew when she left the Czech Republic in 2007 that she had been ordered to serve a sentence of imprisonment. Since 2007 she has been a fugitive from justice, taking advantage of the free movement between Member States of the European Union to come to the United Kingdom. The fact therefore that it is now some 8 years since the original offence and 5 years since the suspended sentence was activated the delay can count for little in the circumstances. Although the care for the children will not provide what JP could provide, the interests of the children are adequately safeguarded in the way we have described.
25. Balancing these considerations, we have come to the conclusion that her extradition would not be a disproportionate interference with the interests of the children. We therefore dismiss the appeal, subject to the further application made on behalf of JP.

II JE-H and IE-H

(a) The facts

26. JE-H was born in the UK on 2 June 1975. Her parents emigrated to Australia when she was 6 months old. She became an Australian citizen in 1999. She met IE-H who was born in Iraq in 1953 and who is an Australian citizen. They lived together and JE-H changed her name to adopt the surname of her partner in 2008.
27. It is alleged by the prosecuting authorities in New South Wales that JE-H and IE-H perpetrated an advance fee fraud in connection with arranging loans in October and November 2008. They obtained AUS $600,000.
28. IE-H left Australia in November 2008 and JE-H left in February 2009. They arrived in the United Kingdom in early 2010. A daughter, R, was born to them on 25 November 2010.
29. On 19 July 2011, the Government of Australia requested the extradition of JE-H and IE-H; the request was certified by the Home Secretary on 20 July 2011.
30. The extradition hearing took place before District Judge Purdy. The only issue raised was Article 8. He heard evidence from JE-H and IE-H and was provided with written statements to the effect that their relatives in Australia would be unable to care for R. There was no one other than her parents to care for R in the UK.
31. The Government of Australia submitted unchallenged evidence that:

i) The State would pay for the cost of transporting the family together to Australia and any maintenance costs for R while in Australia should circumstances require it.

ii) Once extradition was ordered, the police would give notice to the Family and Community Services so that they could put in place options for the care of R; an undertaking was given that in the unlikely event that R would need to be cared for by others than the E-H family, the State had made arrangements for the care of R on her arrival in Australia until there were more preferable options.

(b) The judgment of the District Judge

32. District Judge Purdy found in a judgment dated 20 December 20011 that whether the members of the E-H family chose to care for R, R's welfare could and would be safeguarded on arrival in Australia, even assuming neither parent secured bail pending trial, as bail might be difficult to obtain.
33. He concluded that the request was proportionate and ordered the case be sent to the Secretary of State. The Secretary of State ordered extradition on 30 January 2012. JE-H and IE-H appealed on 10 February 2012.

(c) The position of the father

34. As was in essence accepted at the hearing of the appeal, there is no merit in the argument under Article 8 that the father, IE-H, should not be extradited. He is not the primary carer and there is no reason why the important public interest in honouring extradition treaties and in ensuring that those charged with serious crimes such as these face trial should not prevail.

(d ) The position of the mother

35. As to the mother JE-H, the evidence is clear:

(i) The interests of the child

36. The position is clear

i) JE-H is the primary carer. There are no alternative carers in the United Kingdom.

ii) The arrangements for the transport to Australia and for care in Australia have been set out above.

37. In our judgment, there are proper arrangements in place for the reception of JE-H and R in Australia. There is no doubt that the judge in New South Wales will, as District Judge Purdy found, take into account the position of R when considering bail and in any subsequent sentence, if JE-H is found guilty. In the event she is not given bail or she is convicted and imprisoned, there are suitable arrangements for the care of R.

(ii) The public interest

38. The crimes in respect of which the extradition of JE-H is sought are serious.

(iii) The balance

39. We accept that any separation of R from her mother will have serious effects on R, but taking the likelihood of that eventuality into account and the serious nature of the offences with which JE-H is charged, the balance under Article 8 comes firmly down in favour of the extradition of JE-H.
40. We therefore dismiss both appeals.