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
		14/11/2012

The President of the Queen's Bench Division:

This is the judgment of the court.

1. This appeal against the decisions of District Judge Rose that the appellant should be extradited was heard at the same time as the appeals in JP v The District Court at Usti nad Labem, Czech Republic and JE-H & IE-H v Government of Australia 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 gave judgment on those appeals on 26 September 2012, [2012] EWHC 2603 (Admin).

Application for adjournment for reports

2. In this case, there was an application to adjourn on the basis that a child psychologist was needed. Applying the principles set out by Lady Hale at paragraphs 82-86 of her leading judgment in HH, we refused the application for reasons similar to those in JP and JE-H & IE-H.

The facts

3. AC was born on 7 March 1985 in Poland. She is a Roma. She married at a young age. Her first child, a daughter RSM, was born on 19 May 2001. She had a second child, a son JRM, born on 10 April 2002 and a third child, another son KKM, born on 4 February 2003.
4. On 13 February 2003 she was convicted by the District Court in Wadowice of one offence of theft from a dwelling – the equivalent of a burglary. That offence had occurred on 9 August 2002 when, with others, she stole from an unlocked flat a handbag, two wallets, a mobile phone and some money. The total value appears to have been PLN 780 or PLN 880 – something at the then exchange rate in the order of £110- £130. She was sentenced to 10 months imprisonment suspended, even though she was then only 17. In her evidence to the District Judge she said she admitted the crime. Her husband was in prison and she stole because she had no money to buy food and milk for her children. She had tried to work, but had difficulty because she was illiterate. She had begged, but was assaulted and called racist names.
5. AC had a further son, DRM born on 7 October 2004.
6. During the period of the suspension of her sentence, the appellant committed a similar offence. The EAW states:

"Yet subsequently the sentence was adjudged to be executed due to the fact that during the period of probation the convict intentionally committed a similar offence for which she was sentenced to imprisonment. The convict was present at court hearing as regards the decision of executing the custodial sentence, having been scheduled for 12 April 2006".

AC told the judge that she did not know it was activated. She did not remember being at court. She could not remember lodging an appeal. Her lawyer in Poland provided a statement on 13 April 2011 which made it clear that the court had activated the sentence because she was sentenced to 6 months imprisonment suspended for a probation period of 5 years by the Regional Court in Tarnow for a similar offence. She had successfully completed that probation period.

7. That appears to have been a decision of the District Court at Tarnow. Although she could not remember appealing it, it is clear that she appealed against the decision. On 29 May 2006 the judgment was upheld and she became bound to serve her sentence. The Regional Court agreed to defer her sentence and she was told that she had to keep the authorities informed of her address. She was summoned to prison on 18 July 2006. On 24 August 2006 the Regional Court further deferred the execution of the custodial sentence until 24 February 2007.
8. In the summer of 2006 the appellant came to England and got a job. She saved money for her family to come to England. The children remained with her husband and followed a month later. Another child, a daughter VPM, was born on 27 May 2007.
9. On 15 January 2008 the Polish court issued a "wanted notice" in respect of the appellant. On 21 December 2010 the District Court issued an EAW. That was certified by SOCA on 27 March 2011. When the appellant learnt of the warrant, she went from her home in Wisbech and surrendered to police custody in London and was arrested on 7 April 2011.
10. On 12 April 2011 her lawyer in Poland applied to the District Court in Tarnow for a deferral of the carrying out of the sentence on the basis that imprisonment would cause extremely difficult circumstances, particularly to AC's family. The application set out the circumstances and stated:

"The deferral to carry out the sentence will allow the convict AC to make sure the children will be properly taken care of during her serving sentence at a penitentiary centre. Shortly she will apply to court to order a temporary custody over the children to her sister. It will provide the children with a stabilisation and assurance that the children will stay surrounded by the family during her absence. Presently the convict lives in Great Britain where her children go to school. Placing a convict in a penitentiary centre immediately will cause extremely difficult circumstances, especially for her family, five minor children."

11. That application was refused, on 10 June 2011. An appeal was made to the Regional Court at Tarnow which, on 20 July 2011, dismissed the appeal. In its reasons, the court stated that it could only defer executing the sentence in cases where the consequences were too serious for the family of the convicted person to bear. The court stated that the appellant had five years since 29 May 2006 to make arrangements for her family whilst she served her sentence, but she had avoided contact with the judicial authorities. The court had taken her family circumstances and her need to care for her children into account in 2006 as it was for that reason it had allowed her to defer her sentence. It refused to defer it further. On 18 July 2011, AC's Polish lawyer sought through the court a Pardon on her behalf from the President of Poland. That was refused.
12. On 14 September 2011 the extradition hearing took place before District Judge Rose. A number of points were taken before the District Judge but only two were in effect pursued at the hearing of the appeal - Article 8 and discrimination under s.13 of the Extradition Act 2003. There was some argument about the validity of the EAW on the basis that it did not contain sufficient information about the activation of the sentence, but the point rightly was not pursued in this court.
13. In a written judgment dated 14 September 2011, she ordered the appellant's extradition.

The issue on discrimination

14. AC contended that to return her to Poland was barred because she was prosecuted because she was a Roma and she was being extradited to be punished as she was Roma. She relied on s.13 of the Extradition Act 2003:

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

(a)the Part 1 warrant issued in respect of him (though purporting to be issued on account of the extradition offence) is in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or

(b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."

15. The District Judge found that AC's mother was attacked and severely injured in Poland in 2000, but that she could not determine who was responsible or whether the attack was racist in nature. She accepted evidence of ill-treatment to other members of the family in Poland; she accepted that there was evidence of the ill-treatment of Roma in general. However AC had failed to demonstrate that there was a causal link between the issue of the EAW and her punishment as a Roma; there was nothing in the evidence that could lead to the conclusion that the EAW was issued to punish her on account of her race.
16. In this court we were taken by Mr Henley to various reports including the European Roma Rights Centre Report of 2002 entitled The Limits of Solidarity, Roma in Poland after 1989 and the third report of the European Commission against Racism and Intolerance of December 2004, which set out materials in respect of discrimination against Roma. However there was nothing in any of the passages in the materials which showed that the judiciary of Poland punished persons on account of being Roma. There is no other evidence at all which even remotely indicates that AC has been or might be punished by reason of being Roma.
17. There are therefore no grounds for barring her extradition under s.13 of the 2003 Act.

The Article 8 issue

18. As we have concluded that there is nothing that bars her extradition, we turn to consider the interests of the children under Article 8. We apply the principles set out in HH as we summarised them in paragraphs 13-15 of JP.

The hearing before the District Judge on the Article 8 issue

19. District Judge Rose heard evidence from AC, AC's mother who was aged 44 and had 11 children, 8 of whom were at school in the UK and three of whom were adult, her mother's partner, and AC's sister who was 23. Her sister had a partner who was Polish, but not Roma. Most of the evidence they gave was directed at the discrimination to which they had been subjected in Poland.
20. The District Judge found that although AC's extradition was likely to cause some distress and disruption to her children, there were family members living in the UK able to care for them in the event AC was extradited to Poland to serve her sentence. She had assistance from her sister and her mother lived half an hour by bus away. She held that she had not been able to conclude that there were any features about AC's family circumstances that were unusually or exceptionally compelling such that extradition would be a disproportionate interference with her Article 8 rights.
21. In her evidence to the District Judge, AC said that her husband had left her. He had beat her. She told the judge that if she was extradited, it would be hard as she was on her own. She had her own flat and the children were doing well at school. She only had her mother who lived half an hour away and her sister.

The further evidence on the appeal

22. Two further statements of AC were put before us, one dated 23 March 2012 and one dated 27 July 2012. We admitted them in the interests of justice as the appeal had been delayed to await the judgment of the Supreme Court. In her statements she said her husband had been away to serve a prison sentence and that he had abused her throughout her marriage, both physically and mentally. She had been the principal carer. She did not believe that he would be able to care for the children as he had been in and out of prison. He was now out of prison, but he might re-offend and be imprisoned again. She said, (and there was other evidence to support it) that her children were doing well at school. She said she feared abuse as a Roma when serving her prison sentence. If she was extradited, then her husband would not be able to help the children go through their growing up and would not attend to the daily routine that children need; she had been the principal carer; it would be very difficult for them to cope without her help.
23. We also admitted for similar reasons, a statement from an employee of her solicitors in which it was said that AC had been frightened to make any allegation against her husband.

The interests of the children

24. Her five children are between the ages of 11 and 5; she is the primary carer and it is we think right to conclude that her husband cannot look after them. It would not be practicable for her children to visit her in prison in Poland. The effect of her being extradited to serve a prison sentence of 10 months would have a very severe effect on the children.
25. However, although their father and AC's mother might not be able to care for them, our conclusion was there was no reason why AC's sister could not. Indeed as we have set out at paragraph 10, AC's application to the Polish court in 2011 was grounded upon the need for time to make arrangements for her sister to care for the children during her imprisonment.
26. After we had prepared a judgment in draft and circulated it to the parties, we were asked to reconsider our decision on the basis that the sister had returned to Poland. It was submitted that in AC's skeleton argument it had been stated that after the husband's return and pressure from the family for the appellant to remain with him, the sister had withdrawn her support. Although that was not the evidence given by AC in the further statements as we pointed out, we were provided on 23 September 2012 with a further statement from her solicitor's employee in which it was recorded that AC had said that her sister had moved to Poland several months ago.
27. In the light of that submission, we deferred handing down judgment and held a further short hearing on 23 October 2012.

The public interests

28. We set out in our judgment in JP at paragraphs 18-22 the issue that arises in relation to a minor crime. The offending in respect of which the extradition of AC was sought was relatively minor; although the total amount involved was just over £100, it was nonetheless a burglary. It occurred in August 2002 when she was 17. Nonetheless her position is aggravated as she left Poland to evade serving her sentence in circumstances where her sentence was deferred in order for her to be able to make arrangements for her children.
29. The judge who imposed the original sentence would have known that the appellant had young children. It is clear that the judge who activated the sentence in 2006 and the judge who refused to stay the sentence in 2011 also took into account the interests of the children. We must proceed on the basis that there is a high level of mutual confidence between Member States as set out in recital 10 to the Framework Decision and therefore respect that decision.
30. It was submitted on AC's behalf that we were entitled to consider whether the sentence passed on AC in 2003 was, as AC was a child at the time, in breach of Article 3 of the UN Convention on the rights of the Child to which Poland became a party in 1991. That is not a matter for us; the only relevance of the Convention is to the rights of her children in relation to the extradition.

The balance

31. We accept that AC's children would be severely disadvantaged by her, as their primary carer, being extradited to Poland with no opportunity of seeing her during her period of imprisonment. We also accept that a court in England and Wales would not have considered that the custody threshold had been passed in relation to the original offence, given her age and her admission of the offence and therefore would not have imposed a suspended sentence. Although she committed another offence for which she was given another suspended sentence and the period of probation in respect of that offence was successfully completed, we also accept that a court in England and Wales would 3 years after the original sentence not have activated any suspended sentence in the circumstances (assuming for these purposes that statute permitted a suspended sentence for a period of more than 12 months). However as we set out in JP, we must guard against imposing our views.
32. We must also take into account that AC knew of her sentence and used the deferral of the sentence to come to the United Kingdom as a fugitive from justice, taking advantage of the provisions of free movement between Member States of the European Union. The delay that has elapsed since the time the sentence was activated over 6 years ago in 2006 can in those circumstances carry no weight. The evidence before us and the hearing in July 2012 was that she had a sister who lives nearby and who could care for the children; despite the fact that we admitted the evidence of the appellant and the solicitor's employee as set out at paragraphs 22-23 above, no evidence was adduced from the sister nor was any mention made in the statements of AC or the solicitor of her sister's position being changed. An explanation in a skeleton argument is not evidence, as we pointed out. Nor is it permissible after we have set out our decision in a draft judgment to seek to adduce further evidence. It is important to note that we admitted fresh evidence on an appeal because of the special circumstances that had arisen because of the appeal in HH to the Supreme Court. If it had not been for that, we could have strictly applied the test set out in Szombathely City Court v Fenyvesi [2009] EWHC 231.
33. In any event, there was no evidence from the sister and no explanation as to why she could not return. Nor was there any explanation why over the five year period allowed by the Polish court and the further year after that, no steps had been taken to arrange for the care of the children. As the respondent pointed out, there were several other adults who could care for the children. We are driven to conclude that the appellant has seriously abused the period of grace extended to her by the Polish courts.
34. Although we accept that there will be a severe disadvantage to the children, the public interests we have identified outweigh the interests of the children. We therefore conclude that AC should be extradited. Her appeal must therefore be dismissed.