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
		9 October 2012

1. MR JUSTICE IRWIN: I can take this matter quite briefly. The appellant challenges the decision of Senior District Judge Riddle on 29 February 2012 to extradite him to Spain on an accusation warrant for one offence of drug trafficking. The offence is a very serious offence. The drug trafficking is said to be of an enormous quantity of cannabis exceeding two and a half million kilos.
2. The matter is put on a number of bases. I deal first with the application to introduce two pieces of new evidence which must be considered under the well-known principles set out by the President of the Queen's Bench Division in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231. The first piece of evidence is that coming from the East Sussex Social Services Department, specifically from Jo Nash, Senior Practitioner of the Lewes Family Support Team, put down in a letter of 6 September 2012. This is said to be evidence which could not have been available at the time of the decision before the Senior District Judge in February.
3. The background is that following a considered bail application, the whole family moved across the boundary from Brighton and Hove into East Sussex. Therefore, the family's social services will from henceforth be provided by East Sussex County Council rather than Brighton and Hove Council. I accept that that part of the Fenyvesi test is passed. However, this evidence is not decisive, in my judgment. It simply does not meet the problem highlighted by the Senior District Judge in his judgment, which is that it does not address what the consequences are going to be if the appellant is extradited to Spain. That was not clear from the previous report and it is not clear from the current report. This evidence is not capable of being decisive and therefore should not be admitted.
4. The second piece of evidence is a letter dated 1 October 2012 from Dr Tim Corbett, Consultant Haematologist at the Royal Sussex County Hospital. He sets out the developing condition in the appellant. The appellant was admitted to the Royal Sussex County Hospital at the end of February; two days, in fact, before the decision of the Senior District Judge, and I accept again that the first Fenyvesi test therefore is passed, because it would not have been possible for this evidence in any form to be presented before the Senior District Judge. However, it seem to me that this too is not capable of passing the second Fenyvesi test.
5. What the letter sets out is that the appellant is a sufferer from a condition known as secondary Polycythaemia, which means that he has raised haemoglobin in the blood. The considered opinion is, firstly, that it is a secondary not primary, it is likely to relate to smoking, rather than therefore something that is a disorder arising spontaneously within the appellant himself. It can be dealt with by discontinuing smoking and Dr Corbett make it clear that there is no reason to think adequate control or treatment for this would be problematical with the European Union. Therefore it seems to me that that evidence too fails the Fenyvesi test.
6. Essentially thereafter, Mr Kiss-Wilson, on behalf of the appellant, suggest that the Senior District Judge was wrong to conclude that extradition was disproportionate for the purpose of Article 8.
7. I bear in mind the decisions of the Supreme Court in HH v The Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and the decisions that have helped to give flesh to the bones of consideration of impact on families in the context of extradition; one being JP v The District Court At Ústí Nad Labem, Czech Republic [2012] EWHC 2603 (Admin), another that has been cited to me being Koscinski v the Circuit Court in Olsztyn, Poland [2012] EWHC 2240 (Admin). It is not necessary for me to quote specific passages from those cases. The thrust of the jurisprudence is that, of course, one must consider the impact on children and family, and indeed on partners and wives and husbands, of extradition. It is accepted at all levels in the courts that the impact on families may be very considerable and that there must be a weighing of the proportionality of extradition, particularly with the degree of impact and the nature of the offending in mind.
8. Specifically, Mr Kiss-Wilson referred me to another case, Nikitins v Prosecutor General's Office Republic of Latvia [2012] EWHC 2621 (Admin). There, Ouseley J emphasised that was a challenge to the proportionality of extradition and said that he met the contention in that case that extradition would be disproportionate in relation to the offence because of the impact on the appellant's wife in that case derived from her fragile mental health. The offending in that case was the attempted theft of four radiators from an unoccupied apartment, with the total value being between £60 and £80. That forms a stark contrast with this case.
9. I accept, as did the Senior District Judge, that the impact on this appellant's family will be considerable, indeed very considerable, but it is not established, even if one accepted all of the extraneous material sought to be introduced, that it will lead to the children being taken into care, and it is rather striking that that is the case despite the fact that within the extraneous material it deals with two separate social services departments.
10. It seems to me given the very serious offending in this case it is proportionate to extradite. More particularly, it was not wrong of the Senior District Judge to conclude that it was proportionate to extradite. Even if I were to admit the medical evidence, it seems to me that that would not tip the scales at all.
11. For those reasons this appeal is dismissed.
12. MR KISS-WILSON: My Lord, there is only one matter, which is the usual order for legal aid assessment, if I might ask for that.
13. MR JUSTICE IRWIN: Certainly, yes.