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
		10 October 2012

1. MR JUSTICE COLLINS: This is an appeal under Section 26 of the Extradition Act 2003 against the decision of a district judge made on 22 March 2012 ordering the appellant's return to Poland in order to serve two sentences of imprisonment totalling something in excess of two years' imprisonment.
2. The two warrants relate to convictions for similar offences, the first in point of time relating to a conviction for what is described as sexual exploitation of a child on 30 and 31 October 2005 and, the second, a conviction for a like offence but committed in the second half of the year 2001.
3. It seems that the appellant together with her partner - who was, it is said, a violent man and who had to a considerable extent control over her - was running a brothel and the prostitutes (for want of a better word) who were used in that brothel included these two children. I say "children", the description is "minors". So there is no direct evidence as to their respective ages.
4. However the sentences imposed - and I gather they were consecutive sentences - were, in the one case, one year and, in the other, one year and 18 months. (I think a couple of days of that have already been served.) The total imposed was two-and-a-half years' imprisonment, which hardly suggests that they were regarded as other than serious offences. By their very nature, they are far from being properly regarded as anything but serious. I am making that point because it has been submitted on behalf of the appellant that the offences were not of significant severity. It is said that the length of time spent by the Polish authorities before pursuing these arrest warrants can be used to support that contention. It is also said that they were offences of strict liability and that that is another factor that can be taken into account in considering their seriousness. Having regard to the sentences imposed and the nature of the offences, that is in my view a quite impossible submission. These were on any view serious matters.
5. There was a contest before the district judge whether the appellant had deliberately left in order to avoid serving the sentences. It was her contention apparently that she had thought that a solicitor employed by her had informed the authorities that she was leaving, and accordingly it could not be said she was leaving purely to avoid the sentences. The district judge did not accept her evidence in regard to that matter and decided that this was a case of fleeing justice, and that in those circumstances she was not to be regarded as someone who had left in the full knowledge - and certainly no question of leave - of the authorities in Poland. She left to avoid having to serve the sentences which had been imposed.
6. The appellant has a daughter who is now 13 years old. When she came to this country a number of years ago the daughter was only 6, so she has effectively grown up, goes to school now and has spent most of her childhood in this country. That is highly material in considering the challenge to extradition based on Article 8 of the European Convention on Human rights.
7. In addition, the appellant's father - who is now 79 or 80 years old and is in very poor health - came to this country in, it seems, 2010 or thereabouts. His condition is such that he has to be looked after, and the appellant is his sole carer. There is an indication given that when she was in custody for a time, having been arrested upon service of the warrants, his health deteriorated. It is suggested that he may give up, as it were, if she is no longer available to look after him. That is a further factor that is prayed in aid in support of the Article 8 argument.
8. Before the district judge, the governing authority was Norris v Government of the United States of America which is said to have been a landmark decision in extradition cases.
9. Following the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, concern was raised as to whether now Norris was the correct approach. In Norris, the decision of the court had been that there was no absolute rule that any interference with Article 8 rights as a consequence of extradition would be proportionate. But it would only be disproportionate, in effect, if it was the case that there was some quite exceptionally compelling feature or combination of features present. Then and only then would interference with family life be other than proportionate. That was because extradition was in a somewhat different category to other sort of removal. ZH concentrated upon the effect on children of the removal of their parents or, if sole parent, parent.
10. It was for consideration by the Supreme Court whether, in the light of what was said in ZH, the approach in Norris could stand. That matter was argued before the court consisting of seven members in March 2012. Judgment was given in June. It is unfortunate, to say the least, that the judgments in HH [2012] 3 WLR 90, [2012] UKSC 25 do not speak entirely with the same voice. But one thing that is clear is that it is recognised that while consideration must be given to the individual facts of every case and in particular consideration must be given to the rights of the child and the effect on the child, nonetheless the importance of meeting our international obligations in the context of extradition and the fact that extradition is more akin to criminal conduct in this country - when obviously the effect on children of sending a parent to prison is a relevant consideration (but not in terms of Article 8) and generally, as a factor that must be taken into account - the fact that it is criminal conduct is something which is of fundamental importance.
11. It is clear from the judgments in HH that the approach on the basis of exceptionality is not the correct approach. What has to be done is to look at the circumstances of the individual case and determine from the same starting point, as with any question of removal from this country, the effect on a child and indeed any other dependant of the person concerned. Lord Judge in his judgment said at paragraph 132 (and I do not think the rest of the Court really dissented from this approach):

"132 The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. 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."

12. That was perhaps more material in relation to an accusation as opposed to a conviction warrant. With a conviction warrant one is faced with the knowledge that there has been a custodial sentence imposed for the offence in question. Thus the court in question has obviously considered the length of sentence that was appropriate. The gravity of the offending must be judged in that context because it is quite impossible unless clear evidence is produced of the circumstances of the offending (that is not the position here) for this court to go behind the decision of the foreign court in the level of sentence that was imposed and thus the seriousness of the offending in question. I have already indicated the nature of the offences, and that they are clearly potentially severe is, I would have thought, only too obvious.
13. Thus it is indeed only in a rare case that the interests of the child would prevail. I fully recognise that, as is said on behalf of the claimant, the child, now aged 13, is at an important stage of her development. She attends school in this country and would wish, no doubt, to continue to do so.
14. I am told that there is really no one who can look after her in Poland and it would be quite impossible that she should be looked after by her father because not only has he shown himself to be a violent individual but he has been involved in sexual malpractices with which the appellant was herself involved. It is said that he has made advances in the past of that sort of nature to his daughter. It is obviously in those circumstances impossible that he should have anything to do with her upbringing, and she does not want to have anything to do with him. Indeed, when the appellant was in custody for a time following her arrest the local authority looked after the child. I think she was put into care or to foster parents. I have no doubt whatever that the local authority in question will have the same obligations and will have to look after the child in question if the appellant is to be returned to Poland in order to serve the balance of her sentence.
15. It may be - I know not - that there is room for an application to be made to the Polish court for a reduction in the term of sentence, having regard to the passage of time and the present circumstances of her child and the break up from her partner or husband. That is not a matter about which I have any evidence but it is, one would hope, a matter that can be taken into account in due course.
16. As it is, as it seems to me, the arrangements for the child, albeit obviously second best in the sense that she will not have her mother available to look after her, are not a proper basis for her to avoid the consequences of her criminal activity in Poland.
17. So far as the appellant's father is concerned, again there are obligations upon either the local authority or other bodies to ensure that he is looked after. If he is ill, if sufficiently unwell, he will be able to be admitted to hospital. Otherwise, he can be looked after. It is perhaps pertinent to note that Lady Hale recognised that the situation of a dependant other than a child was not so compelling in this context. In paragraph 26 she said:

"26 Norris concerned an adult couple and so the court did not, and did not have to, consider the special position of children. It could, and did, treat the interests to be balanced as the public interest in extradition and the individuals' interest in their private and family life. There is, however, a strong public interest in the protection of children which makes their case different from that of adult family members, even adults who need support on health grounds."

So the approach in HH, insofar as it differs from that in Norris, was clearly mainly, if not exclusively, on the basis of consideration of the rights of children as opposed to other adults who were likely to be adversely affected by the removal in question.

18. In my judgment in the circumstances of this case, notwithstanding the damaging effect on the child, she can be looked after in other ways; and, this does not therefore render removal disproportionate, having regard to the fact that it is in the context of extradition and the need to pay the penalty for serious criminal conduct that this matter arises. Accordingly, neither on the ground of the effect on her daughter nor the effect on her father do I consider that it would be disproportionate in terms of Article 8 to send the appellant back to Poland.
19. Further argument was based on the length of time spent before the authorities issued the arrest warrants. It is indeed unfortunate that time has passed. Since, on the findings of the district judge, the appellant left Poland as a fugitive, it cannot be assumed that the Polish authorities were aware of her whereabouts. Accordingly, there is some excuse for not issuing earlier. Furthermore, as is clear from the approach based upon Kakis v Government of Cyprus, where an individual is a fugitive, it is very difficult, if not impossible, for that fugitive to rely upon oppression as a basis for non-return having regard to lapse of time. I accept that it is not and should not be regarded as impossible because there may be circumstances where the lapse of time is such that it can be shown, for example, that the requesting State was culpable in leaving the matter for so long, but, notwithstanding that the individual is a fugitive, it may be that lapse of time can operate in his favour. In my view, this is not such a case.
20. I do not think that if the Article 8 arguments do not prevail, as in my judgment they do not, that an argument based on oppression following lapse of time will, notwithstanding, operate in favour of the appellant.
21. In those circumstances I must dismiss this appeal.
22. (To counsel) Do you want the usual order?
23. MISS LINDFIELD: Yes. There are two other matters. First, if there is to be a transcript of the judgment, could it be anonymised because of [the child] being a minor given the sensitivity?
24. MR JUSTICE COLLINS: Yes. What do you want? We will initialise it.
25. MISS LINDFIELD: Yes. I would be grateful.
26. MR JUSTICE COLLINS: We will call it MF.
27. MISS LINDFIELD: Yes.
28. MR JUSTICE COLLINS: I am happy to direct that it be reported as MF or promulgated as MF and that nothing is done to identify the daughter.
29. MISS LINDFIELD: I am grateful. We have fourteen days in which to consider whether there is any point.
30. MR JUSTICE COLLINS: Certainly. That is a matter for you to consider and to make an application if you will. I will consider it on the papers.