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
		19 October 2012

1. MR JUSTICE COLLINS: This is an appeal pursuant to Section 26 of the Extradition Act 2003 against a decision of a district judge which was reached a long time ago, in July 2011. The reason that the appeal has taken so long to be heard is because of the pending decision of the Supreme Court which was reconsidering the correct approach to Article 8 of the European Convention on Human Rights following Norris v Government of United States of America [2010] UKSC 9. It was believed - and, as it turns out, correctly believed - that what the Supreme Court had decided in Norris had been to an extent misunderstood, the decision in question being given on 24 February 2010. Essentially, what was picked up from Norris and applied generally was that in order to avoid removal - to face either a charge or to serve a sentence in another Member State where there was a European arrest warrant - it had to be shown that the case was exceptional because of the importance of complying with international obligations and because of the importance of the European arrest warrant procedure being met.
2. The result of that was a tendency to say whatever the hardship in an individual case it could not be said to be out of the ordinary, in the sense that it was the sort of hardship which would be expected on the facts, and therefore the case was not exceptional. That has been shown in the decision reached on 20 June 2012 in HH v Deputy Prosecutor of the Italian Republic Genoa [2012] EWSC 25 to have been wrong.
3. Two points were raised in this appeal: one going to whether the warrant disclosed an offence which was properly to be regarded as an extradition offence and the second based on Article 8. The first point was dealt with at a hearing before Mr Justice Silber and the argument was rejected. That left the argument based upon Article 8. That was adjourned pending the decision of the Supreme Court.
4. The offence which led to the imposition of a sentence which now has to be served of six months' imprisonment was this. It occurred on 27 April 2006. It was alleged that the appellant made her flat available to an individual to divide the intoxicating agent in the form of 46.1 grams of marijuana and by making her flat available she had helped that person to participate in drug trafficking. She was originally sentenced to a suspended sentence of twelve months' imprisonment. She appealed against that. The appeal court varied the sentence to six months' imprisonment suspended for four years. The conviction was on 18 December 2006. Thus the four-year period would have lasted until December 2010. The conditions that were imposed were three: (1) to keep out of trouble - with that she complied; (2) to pay 800 zlotys - that amount which is equivalent to about £150 she did not pay; (3) - and this is perhaps the most important - she was required to keep in touch with the probation service. She breached that condition by leaving Poland in 2008 and coming to this country.
5. The Polish authorities decided in the circumstances - because she had breached her conditions - that the sentence should be activated. That was done in July 2009. That is why she is now required to serve the sentence of six months' imprisonment in full. However an arrest warrant was not issued until early 2011. It resulted in her arrest and being brought before the district court, judgment being given by District Judge Evans on 20 July 2011. The warrant was issued on 22 February 2011.
6. There has thus been considerable delay, some of it - perhaps properly - to be regarded as the fault of the appellant in as much as she decided not to comply with the conditions of the suspension. However the relevant delay, as I see it, really is between the grounds for activating the warrant when she left the country in November 2008 and today. That delay has resulted partly from the failure to issue a European arrest warrant between the activation of the sentence which resulted (it must be) from the knowledge that she had failed to comply with the condition to keep in touch with the probation officer in Poland and was no longer at the address at which she was supposed to be living. That amounted to something in the order of eighteen months or so or even perhaps up to two years. Subsequent delay has been caused by the time it has taken for this country to deal with her appeals. It is very unfortunate that it has taken well over a year for this appeal to be heard. That was due to the perceived need to adjourn the Article 8 point until the decision of the Supreme Court was reached.
7. Mr Rhodes submits that even under Norris, if properly approached, this appeal should have succeeded but he submits that certainly when one looks at the approach that is said to be the correct approach in HH the appeal is one which ought to succeed.
8. The circumstances are these. The appellant is a single parent. She gave birth to a child who, at the time the matter was considered by the district court, was very young indeed. He was only sixteen months old at the time that the extradition order was made. Having regard to the delay, he is now some two years and eight months old. He has never been separated from his mother and she has been his only carer. In this country it is said that the only possible contender to look after the child, certainly so far as any family is concerned, is the appellant's sister. She says that she and her sister are estranged. Furthermore, the child does not know his father so that is not a feasible possibility.
9. So far as her family is concerned, she has three other children but they were in Poland being looked after by their grandfather. Unfortunately, their grandfather was unsatisfactory, suffering, it appears, from alcoholism and was unable to look after the children properly. As a result, I am told, they have been taken into care in Poland. They were in fact very young when the appellant left Poland. Their natural father - her partner - was, I am told, murdered in 2006. He is no longer available to look after any of the children, even assuming that could be a possible answer for the present child of whom of course he is not the father. There is no way in which the father can be involved in looking after this child. The only other possible relation is a grandmother but she lives in Italy and that is equally not a possible sensible answer.
10. I do not have any direct evidence, because I understand that no inquiries have been made, whether if she were to be sent back to Poland she could take the child with her and arrangements could be made for the child to be looked after with her if she had to serve the sentence. I note that in the Polish case that was considered in HH there was evidence that the child who was under four would not be able to be with the mother in prison. It is not possible to go further than note that because I do not know whether there were any particular circumstances there or whether that was a general bar that operated in the Polish system of imprisonment. Nonetheless it is something that I note.
11. The approach that is required, which is and should have been much the same as the approach in Norris, is to bear in mind that the interests of a child are to be regarded as of primary importance. That follows from Article 24.2 of the Charter of Fundamental Rights of the European Union. A child's best interests have to be the primary consideration. Indeed, one gets that as well in immigration cases through Section 55 of the relevant Immigration Act. I appreciate that this is not an immigration case but it simply emphasises the point that the court has to have special regard to the interests of a child. It does not mean of course that hardship to a child will prevent a parent's extradition. All depends upon looking at all the circumstances and those circumstances include the seriousness of the offending behaviour for which extradition is sought.
12. Allowing premises to be used for cutting up about 46 grams of marijuana dividing the intoxicating agent that is not a substantial quantity. It is correctly pointed out it is a relatively small amount. I am bound to say that were this offence to have been committed in this jurisdiction, I have the greatest doubt that - particularly in the case of someone such as the appellant who has no previous convictions - it would have crossed the custody threshold. I note the observations of Lord Judge at paragraph 132 in HH where he said:

"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's release which are likely to operate in a country seeking extradition. It certainly does not follow that the extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence. However it would become a relevant decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be immediate custodial sentence in favour of a non-custodial sentence including a suspended sentence."

13. I am satisfied that in this country it would not even have been likely to have been a suspended sentence. That is undoubtedly a factor that can be taken into account. That is not in any way to criticise the sentence that was in fact imposed. It is a reflection of the view that is to be taken of the seriousness of the offence. It was a suspended sentence. She broke the conditions of suspension and that is what led to the requirement to serve the sentence. To that extent, it is difficult for her to rely on the nature of the offence and its lack of seriousness in challenging the extradition decision.
14. In addition to the question of how serious the offence was, I have to consider the length of time which has elapsed. That is undoubtedly a relevant consideration no matter who was to blame for the delay. If blame in a given case is to be attributed to a requested person because he or she has deliberately left the country to avoid serving a sentence and there is good reason why the warrant has not been able to be executed for a period of time then that is a factor which can be taken into account in deciding whether, notwithstanding hardship to a child or to other members of the family, extradition is proportionate. Here, there is a delay which is not the fault of the appellant both from the Polish authorities in failing to issue a warrant for a considerable period of time and regrettably from this country in failing to deal with the appeal within a reasonable time. That is certainly not the appellant's fault. The result of all this is that the child is that much older and has never been deprived of the care of his mother.
15. In all those circumstances I have to decide whether it is now proportionate, despite the fact that one is considering the serving of a sentence properly imposed for an offence, to return the appellant to Poland. It seems to me that - despite the district judge's criticism of the appellant and those advising her for not making, as he put it, sufficient inquiries to see whether any arrangements could be made to look after the child or whether there was anyone to whom the appellant could look for that purpose - the reality is that there is no sensible solution and that if she is returned, and if the Polish prison authorities cannot look after the child with her, the child will be deprived of his mother and that will be damaging to the child's development. The more so because he is now over 2½ years old whereas he was only sixteen months old when the decision was reached below.
16. These cases all depend on their own facts. In my view it is not helpful, generally speaking, to look to other cases to see what happened in them and seek to say those circumstances seem rather similar in this case. The court has to follow the approach in HH in so far as it is able to ascertain precisely what it did decide. I raise that qualification because, sadly, the judgments of the court do not speak with complete accord as to how the matter should be approached in the sense that the importance to be attached to various factors are not perhaps as clearly spelt out as would be desirable.
17. Nonetheless it is clear that hardship to family and to children as part of that family will certainly, in the case of the more serious offences, only rarely mean that extradition is disproportionate. So much is clear from what Lord Judge said, and I do not think it is dissented from by the other judges. But one looks at all the circumstances.
18. In this case I am persuaded that it would be disproprtionate in all the circumstances, having regard to the effect on the child, for the appellant to be extradited. The offence, albeit not trivial, is far from being of any real severity in all the circumstances. It was committed some time ago but even if one looks at time running (as one should) from when she left the country or from when the decision was reached to implement the sentence, still some three years have passed. In all those circumstances, taking all those factual considerations into account, I am persuaded that this is a case in which it would be disproportionate to return. I am persuaded too by Mr Rhodes' submission that even approaching this on the basis of Norris, provided Norris is applied properly, the same result would have followed.
19. In those cicircumstances this appeal is allowed.
20. MR RHODES: May I have a detailed assessment of costs?
21. MR JUSTICE COLLINS: You may, yes.