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 May 2013

1. MR JUSTICE KEITH: On 30 November 2012, the appellant, Joanna Grudkowska, was arrested pursuant to a European Arrest Warrant which had been issued by the Circuit Court of Torun in Poland on 13 September 2012. The warrant had been certified by the Serious Organised Crime Agency on 24 October 2012. The warrant was what is colloquially called a conviction warrant. It sought Ms Grudkowska's extradition so that she could serve sentences of 10 months' and 14 months' imprisonment respectively for two offences of driving a mechanical vehicle while intoxicated, which were committed in the space of just over two months on 2 August and 5 October 2005, and which had been "conditionally" suspended for 3 years and 5 years respectively. Going on the details in the warrant, the district judge was to say that the readings which the breath tests gave were about four times the legal limit in this country for the first offence, and about three times the legal limit in this country for the second. The first sentence was activated on 8 August 2006. It was later suspended on 13 February 2008 for 5 years, but re-activated on 16 April 2009 because of what the warrant described as Ms Grudkowska's "attitude". The second sentence was activated on 28 April 2009, although the warrant did not say why.
2. An extradition hearing took place at Westminster Magistrates' Court on 13 March 2013. District Judge Evans reserved judgment, and on 3 April he ordered Ms Grudkowska's extradition to Poland. She now appeals against that order. An order was made by District Judge Evans under section 39 of the Children and Young Persons Act 1933 that nothing could be published which might identify Ms Grudkowska's two children, and I make such an order in relation to this appeal.
3. Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, Ms Grudkowska's extradition to Poland is governed by Part 1 of the Act. Section 21(1) of the Act - which is in Part 1 - required the court to decide whether Ms Grudkowska's extradition to Poland would be incompatible with her rights under the European Convention on Human Rights. The only ground of appeal is that the district judge should have concluded that her extradition would be a disproportionate interference with her right, but particularly the right of her children, to respect for their private and family life protected by Article 8 of the Convention.
4. The relevant facts are that Ms Grudkowska is now 32 years old. Her proof of evidence recounts a history of alcohol abuse which continued until two years ago when she says that she finally stopped drinking. She had, however, pleaded guilty in January 2010 to driving a motor vehicle with excess alcohol. She had been disqualified from driving for 24 months, and had been made the subject of a community order with an unpaid work requirement of 200 hours. She came to this country in November 2008 with her husband, who she had married in December 2007, together with their two sons: the elder was born in April 2004 and is now 9, and the younger was born in September 2007 and is now 5. The district judge found that the court in Poland had known that Ms Grudkowska was the mother of a small child when it imposed the suspended sentences of imprisonment. Her husband had been working in this country since 2004. He and Ms Grudkowska are now separated, but they continue to live in the same house in Thetford, Norfolk.
5. The district judge asked himself why the suspended sentences had been activated. His experience of these cases led him to think that it was unlikely that it had been just because she had come to this country. He noted that most conditionally suspended sentences in Poland include a period of probation supervision, even though the warrant in this case did not refer to that. Indeed, in the course of her oral evidence, Ms Grudkowska acknowledged that she had been subject to probation supervision, and that she had not told her probation officer that she was leaving Poland for this country. In the circumstances, it is not surprising that the district judge concluded that in all probability the suspended sentences were activated because of her failure to maintain contact with her probation officer. Indeed, he found that the court in Poland had known that Ms Grudkowska was the mother of two young children when it activated the suspended sentences of imprisonment.
6. In her proof of evidence, Ms Grudkowska said that she was the primary carer of her two sons. She arranged all their activities and organised everything for them. Although her husband is a good father, she said, he barely speaks English; he is not a practical man; and he does not understand the many things which the boys need. Her brother and sister both live in Thetford. Her brother is only 21. He works full time, and she said that he cannot really look after the boys. Her sister has two children of her own, with a third on the way at the time of Ms Grudkowska's proof of evidence, and she could not really help as she has enough on her plate with her own young family. As for the boys themselves, they appear to be getting on well at school. The headteacher said that their attendance record was good, and that Ms Grudkowska was regularly in touch with the school about the boys. The headteacher's letter to the court added (and this passage was quoted by district judge in his judgment):

"My fear is that without this support from their mother the boys' progress would be hindered. It is my opinion that this withdrawal of support coupled with the added worry for their mother's wellbeing would have a detrimental impact on the boys' academic studies. Of greater concern, though, is the immeasurable impact that a monumental change of this nature will have on the emotional development of two young minds."

7. These, no doubt, were the considerations which led the district judge to conclude that "the interests of the children would be severely disadvantaged by their primary carer being extradited to Poland with probably little to no opportunity for the children seeing her during her period of imprisonment". Indeed, Ms Grudkowska's evidence was that her elder son had reacted very badly to his separation from her overnight following her arrest. But the district judge added that Ms Grudkowska was unlikely to have to serve the whole of her cumulative sentence of 2 years' imprisonment, as there was no reason to suppose that she would not qualify for early release for good behaviour. He also said that there may be scope for her to apply to serve a part of her sentence in this country. Those considerations are criticised by Ms Amelia Nice for Ms Grudkowska, on the basis that they were completely speculative, but it may be that the district judge was relying on his wide experience of what happens in practice in Poland. The district judge thought that Ms Grudkowska's brother and sister would "rally round to give such assistance as they can so as to minimise the inevitable harm that the children will suffer" while Ms Grudkowska was in Poland serving her sentence.
8. As is well known, the recent decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90 requires the court, in cases where young children are involved, to balance the conflicting interests of safeguarding their rights under Article 8 on the one hand, and of complying with the obligation to extradite people convicted of criminal offences, honouring extradition treaties, and ensuring that this country does not become a safe haven for those who wish to avoid the criminal process in their own country on the other. In that balancing exercise, the interests of any children must be a primary consideration and at the forefront of one's mind. That was because, as Lady Hale said at [33]:

"... children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. ... [A]s the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child."

Lady Hale also referred at [83] to the need for the court

"to have information about the likely effect upon the individual child or children involved if the extradition is to proceed; about the arrangements which will be made for their care while the parent is away; about the availability of measures to limit the effects of separation in the requesting state, such as mother and baby units, house arrest as an alternative to prison, prison visits, telephone calls and face-time over the telephone or internet; and about the availability of alternative measures, such as prosecution here or early repatriation."

9. Two other points should be noted. The first relates to the relevance of the sentence which the courts in this country would have passed for the offence or offences for which extradition is sought. Lord Judge said at [132] in HH:

"When resistance to extradition is advanced ... 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)."

Secondly, Lady Hale made the point at [45] in HH that the Polish authorities do not consider whether issuing a warrant is a proportionate response in any particular case to the desirability of the person whose extradition is sought returning to Poland to serve their sentence. That makes it all the more important for the courts here to consider the proportionality of extradition in a case where issues under Article 8 arise, particularly when it is the Article 8 rights of young children which are involved, and even more so when the person whose extradition is sought is their mother who is their primary carer.

10. It is not, I believe, all that productive to see what courts have decided in similar cases, because each case is so dependent on its own facts. But both legal teams in this case have asked me to consider similar cases to see if they shed any light on where the balance lies in this case. Ms Nice relied on Cazan v Judge Trandafir Bagriela, Huneadora Court of Law, Rumania [2012] EWHC 3991 (Admin), in which Collins J allowed the appeal of a man sentenced to 12 months' imprisonment for driving a motor vehicle without a licence for little further than a few streets, albeit when he had a child next to him in the car. It was the circumstances of the offence which proved the decisive point for Collins J, because he said that but for that, the matters relied on as showing that it would be disproportionate to remove under Article 8 would not be likely to prevail. For his part, Mr Richard Evans for the requesting authority relied in his skeleton argument on the facts of the well-known case of JP v The District Court at Ústí Nad Labem, Czech Republic [2012] EWHC 2603 (Admin), where the appeal of a woman who was the primary carer of five children aged between 14 and 4 was dismissed, and she was extradited to the Czech Republic to serve a suspended sentence of 10 months' imprisonment for the theft of low-value articles worth less than £200, which had been activated for reasons which the court was not told about.
11. The offences for which Ms Grudkowska's extradition is sought are, I think, more serious than the offences which JP faced when one takes into account the amount by which Ms Grudkowska exceeded the legal limit on both occasions. The sentencing guidelines for magistrates suggest for someone who has exceeded the legal limit by the amount Ms Grudkowska did on the first occasion and who is a first offender pleading not guilty a starting point of 12 weeks' custody, with a sentencing range of a high level community order to 26 weeks' custody. As the district judge noted, a sentence of imprisonment of immediate effect would have been the likely sentence for the second offence as she had been disqualified as a result of the first offence, and the second offence was committed only six days after the disqualification had been imposed. He also noted that when she was convicted in this country of a similar offence, she was disqualified for 2 years. That suggested to the district judge a high reading, because at that time foreign convictions did not routinely appear on the Police National Computer printout of an offender's offending history. In my opinion, despite her personal circumstances, including her fragile mental state when she was younger which her mother eloquently spoke about, the offences which Ms Grudkowska committed were the sort of offences for which the English courts might well have passed sentences of imprisonment of immediate effect, even though for much shorter periods than those imposed in Poland.
12. I have not overlooked the fact that the boys are old enough to be acutely aware of their mother's absence from their lives, but their father is still around. Although Ms Nice warns me not to give the presence of Ms Grudkowska's brother and sister a weight which it may not deserve, the fact is that families do rally round in times of crisis. I do not ignore the fact that the boys would be unlikely to visit their mother whilst she is in prison in Poland, and there is some evidence that there will be very little opportunity for them to speak to her on the telephone. But even if Ms Grudkowska has to serve the whole of her sentence for offences which were committed many years ago (although she cannot complain about the passage of time, because the passage of time only arose because she failed to keep in touch with her probation officer), I have concluded, not without hesitation, that her extradition would not be a disproportionate interference with the Article 8 rights of her children. Her appeal must therefore be dismissed.
13. Thank you very much indeed, Ms Nice.
14. MS NICE: My Lord, she is legally aided. May I ask for an assessment of her costs, please.
15. MR JUSTICE KEITH: Yes, you may have an order that her publicly-funded costs be assessed.
16. MS NICE: Thank you, my Lord.