England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/07/2014

Mrs Justice Cox :

1. The Appellant, Natalija Krusinina, is appealing pursuant to section 26(1) of the Extradition Act 2003 against the decision of District Judge Devas, on 16 April 2014, to order her extradition to Latvia. Her extradition was ordered so that she may serve a six year suspended sentence of imprisonment imposed on 3 June 2010 and subsequently activated in full by the Jelgava Court on 6 December 2012. The European Arrest Warrant (EAW) was issued on 16 September 2013 and certified by the National Crime Agency on 29 January 2014.
2. The sole ground of appeal is that the District Judge erred in finding, in the circumstances of this case, that extradition was a proportionate interference with the rights of the Appellant and her family under Article 8 of the European Convention on Human Rights. Having regard to the unusual circumstances surrounding this offence and the activation of the suspended sentence, and also to the best interests of the Appellant's 14-year-old daughter, Victoria, Ms O'Byrne submits on the Appellant's behalf that the Article 8 question should have been decided differently and the Appellant discharged.

The Facts

3. The Appellant is now 54 years of age. She is a single parent, having divorced her husband in 2004, and has two daughters, Tamara, who is aged 28 and lives in this country and Victoria, now aged 14 and at school in this country studying for her GCSEs. There are no other members of the Appellant's family in this country and the Appellant is the sole carer for Victoria.
4. The offence to which this EAW relates was an assault committed on 10 September 2006, causing what would be described in this country as grievous bodily harm. There were two victims. During a fight, involving two men, which took place in the back yard of a house, the Appellant, who was under the influence of alcohol, used a knife that she had "brought along" to cut the face of one of the men once, causing him injures and resultant facial scaring. Another man, described as "a minor", ran over to assist the injured man and the Appellant stabbed him once in the ribcage. As a result, he suffered injuries that were "dangerous to life" because of a "collection of air in the pleural space".
5. It would appear from that summary that this was a very serious offence, which would inevitably attract a substantial custodial sentence in this jurisdiction.
6. The Appellant contested the charge and, for reasons which are unclear, she was not convicted until almost four years later on 3 June 2010. On that date, after a trial at which she was present and participated throughout, the Jelgava Court decided to impose a suspended sentence. A term of six years' imprisonment was suspended for a period of three years, with a condition of three years' supervision by the State Probation Service. A separate order was apparently made for the payment of compensation to the victims, which was paid directly from the Appellant's salary. This was not part of the sentence imposed and is not referred to in the EAW.
7. The Appellant appealed against conviction, but her appeal was unsuccessful and the decision of 3 June 2010 is said to have "come into legal force" on 14 February 2011.
8. The Appellant abided by the conditions attached to her sentence and maintained contact with the Probation Service, as required. On 14 July 2011 she made a request to the Probation Service for her to be allowed to come to this country, in order for her to earn more money and to enable her to repay her debts. Her request was granted. The decision was communicated in a letter dated 28 July 2011 which stated, so far as is relevant,

"N. Krushinina has been working as a postwoman at SJSC Latvijas Pasts until July 2011 on the basis of employment contract. N. Krushinina lives in Kalnciems, she rents a two room council flat together with her underage daughter Victoria Krushinina. N. Krushinina is regularly in touch with district social service and she has been granted a status of a poor family. N. Krushinina has serious debts, a debt for her flat in the amount of LVL 500, also she has to pay to the court bailiff for various court matters the total amount of which is LVL 4646.44 and administrative breach fee in the amount of LVL 50. The client has started paying reimbursement of injury to the victim, however taking into account the income of the client the paid amount is not sufficient. The client's daughter Tamara Krushinina has invited her mother and sister to come and stay with her in London, so the mother could look for a paid employment in London and to pay her debts off in the future. N. Krushinina has already shown an active interest in monitoring progress before the monitoring period began and worked together with Yelgava SPS TSU. She has submitted all the necessary documents on time, she has informed about her daily progress on time, that she had visited addiction service and attended the consultation of narcologist.

State Probation Service does not have information that if N. Krushinina changes her place of residence this would endanger public safety or promote a new criminal offence."

9. The Appellant was therefore allowed to come to this country while she was on probation and to reside at a stated address, initially for three months from 3 August to 3 November 2011, on condition that she kept in touch with the duty officer three times a month with information as to her progress.
10. The Appellant came to London with her daughter Victoria in August 2011. Within a week of arriving the Appellant started working as a hotel cleaner in Ilford, a job which she has held until her arrest on the Warrant. She maintains that she kept in touch with the Probation Service, as required, and that no difficulty was raised with her extended stay in this country until 2012.
11. The further information from the Requesting Authority indicates that the Appellant was given permission to continue to live here, initially until May 2012, and that she notified them of her various changes of address. This document indicates that, on 23 May 2012, the Appellant was initially told to return to Latvia by 11 June 2012. However, there were then further communications with the Appellant after that date and it appears that her stay was further extended, without objection. After June 2012, the dates in 2012 on which the Appellant is said to have sent communications in electronic form to the authorities are stated as 2 July, 19 July, 17 October, 22 October and 3 December. The information refers also to there being a number of telephone conversations with the Appellant during this period. It seems clear therefore that the Appellant was maintaining contact with the authorities during the later part of 2012 and that they knew where she was. There was no finding by the District Judge that she was at any time a fugitive.
12. It seems that a hearing date was then fixed at the Jelgava Court for 6 December 2012, the precise purpose of which is unclear on the evidence. There is no dispute that the Appellant did not attend that hearing. On that date it is said in the further information provided by the Requesting Authority that the Court, in the presence of the public prosecutor, defence counsel and the representative of the Probation Service proceeded to activate the six year suspended sentence in full. The Appellant's extradition has now been ordered so that she may serve that sentence.
13. The further information provided by the Requesting Authority contains contradictory information about the events leading up to this hearing. There are references to her having failed to comply with probation conditions, but it is not clear which conditions are being referred to, or when these occurred. It is said at one stage that the Appellant stated, in her submission of 22 October, that she would not appear in court and that she thereafter "cut off any communication at all" with the Probation Service and the Court. She is also said to have provided "blatantly false" information in the extradition proceedings, in that it is said that a submission she maintains was sent on 3 December 2012, notifying them that she was unable to attend on 6 December, was never received by the Court.
14. The Appellant has always denied this, and elsewhere in the same document her submission of 3 December is expressly referred to as having been received by the authorities. Mr Payter, appearing on behalf of the Respondent in this appeal, fairly accepts that the evidence indicates that her communication of 3 December 2012 was in fact received. This is significant for reasons which will become apparent below.
15. Ms O'Byrne relies on the exchange of written communications between the Appellant and the authorities, during November and December 2012, as demonstrating facts which are relevant to the balancing exercise required under Article 8 in this case.
16. The Jelgava Court wrote to the Appellant on 14 November 2012, after receiving her submissions (called her "statements") sent in October. It is clear from this letter that the Court was aware at this stage that this Appellant was indicating she could not attend the court hearing on 6 December. The Appellant was also raising questions about the nature of this hearing, and whether it was to discuss any other types of punishment or reconviction. She was told that it was not, and that "the sentence dated 14.02.2011 has come into effect". In relation to her non-attendance at this hearing the Appellant was told the following:

"Your failure to appear is not a hindrance for consideration of the statement, and a defence lawyer advocate J. Ernstsons has been invited to the court hearing for representation of your interests, who may also provide a consultation related to the case. After statement review, a resolution will be forwarded to you, according to the standard procedure."

Nowhere in this letter, or any other document I have seen, was the Appellant told expressly that, at the hearing on 6 December, the Court would consider whether her suspended sentence should be activated, in whole or in part.

17. As I have said, it is accepted that the Requesting Authority received the Appellant's statement of 3 December 2012, in which she explained that she was unable to come to Latvia for two reasons, as follows:

"1. I do not have money to buy a plane ticket.

2. My underage daughter Victoria Krushinina attends school and studies in form 8. We live together and I cannot leave her alone, but if I were to buy two tickets, it would be twice more expensive.

Therefore, I ask you to extend my stay in England."

18. There is no suggestion that this communication was not genuine, or that the stated reasons for her inability to attend the hearing were untruthful.
19. The District Judge concluded as follows on the evidence before him:

"In this case I am satisfied that the return of the RP to Latvia would necessitate the continued care of Victoria by her sister Tamara. I accept that this would cause hardship, but I am satisfied that it is a sustainable position. The offence for which the RP's return is requested is particularly serious and I have weighed in the balance her compliance such as it was with the terms of the originally suspended sentence. I don't believe it is for this court to criticise or analyse minutely the reasons for that sentence being implemented.

…

As I have said the offence in this case is especially serious, and cannot be said to tip the scales against extradition.

…

I am therefore satisfied that it is proportionate and necessary for me to Order the Extradition of the Requested Person Natalija Krusinina to return to Latvia to serve the sentence of imprisonment …"

The Law

20. The Court's approach in cases involving Article 8 is now well known and well understood. The general principles are to be found in the decisions of the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, and in particular, in cases involving children, ZH (Tanzania) v SSHD [2011] UKSC 4. They are as follows: (1) The question is always whether the interference with the private and family lives of the extraditee and other members of her family is outweighed by the public interest in extradition. Exceptionality is a prediction and not a test; (2) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no safe havens to which people can flee in the belief that they will not be sent back; (3) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crimes involved; (4) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.
21. In relation to the interests of children, Lady Hale said this at paragraphs 33-34 of HH:

"33 ... The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, 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 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. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Children's Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as 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.

34. One thing is clear. It is not enough to dismiss these cases in a simple way – by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it. There is no substitute for the careful examination envisaged by Lord Hope DPSC in Norris."

22. Every case will always turn on its own facts. The balancing exercise conducted pursuant to Article 8 is always fact specific.

The Appeal

23. Ms O'Byrne submits that the Requesting Authority were clearly aware of the reasons for the Appellant's inability to attend the hearing on 6 December; that there was no attempt by the Appellant at any stage to conceal her whereabouts in this country; that she was told in the letter to her of 14 November that her non-attendance at the hearing would not be a hindrance; that she had had no communication with the lawyer who attended that hearing to "represent her interests"; and that she was unaware that her suspended sentence would or might be activated at that hearing. Having regard to these circumstances and having regard in addition to Victoria's age and her dependence on her mother as sole carer, the interference with the family life of this Appellant and her young daughter would be wholly disproportionate to the public interest served by extradition in this case.
24. Mr Payter submits that the District Judge arrived at the right decision. The Appellant is wanted to serve a sentence for a grave offence and failed to abide by the conditions of her suspended sentence and attend the hearing of 6 December. There has been no delay in seeking the Appellant's extradition. The Appellant's older daughter Tamara is presently caring for Victoria to a satisfactory standard and there is no reason why that cannot continue, or why telephone contact between Victoria and her mother, as provided for in the prison system, cannot take place to alleviate the hardship of their separation.

Discussion

25. The offence itself appears very serious indeed, involving as it did serious injuries inflicted by the Appellant with a knife on two victims in the same incident. It would normally lie heavily in the scales in favour of extradition, save for the unusual features in this case.
26. First, the Jelgava Court, which had heard all the evidence at trial, clearly took the view that the circumstances of this offence were not so serious as to warrant an immediate custodial sentence. That was the assessment of the Court, based on all the evidence it heard, and the decision was to suspend the sentence of imprisonment imposed. Secondly, the Appellant was then allowed to leave Latvia to come and work in the United Kingdom during the period of her suspended sentence, to enable her to repay her debts.
27. Thirdly, on the basis of the information before this court the Appellant appears essentially to have complied with the conditions attached to that sentence from June 2010 to about October 2012. At any rate the Authorities knew of her whereabouts at all times and she was not found to be a fugitive.
28. It also appears that, despite informing the Appellant on 14 November 2012 that her non-attendance at the hearing on 6 December would not be a hindrance and that her interests would be protected by a legal representative, and notwithstanding receipt of her letter of 3 December explaining her reasons for non-attendance, the fact that she did not attend on 6 December was a critical factor in the decision to activate the suspended sentence in full. Mr Payter does not suggest otherwise.
29. The reason that her extradition is now being sought is therefore not related to the seriousness of the original offence. Nor is it due to her having committed a further offence during the period of suspension which would, I accept, be a serious matter. Rather, it is due to her failure to comply with conditions attached to her probation supervision, as a result of not attending the hearing on 6 December 2012, when it is not in dispute that there were valid reasons for her inability to attend on that date, when she had been told that her non-attendance would not be a problem, and when she was not told expressly that the suspended sentence could be activated at that hearing. The purpose of the 6 December hearing is unclear on the evidence before me.
30. I note that the Appellant has not committed any other criminal offence in this country. Having been permitted to come here with her daughter to obtain work, she found work shortly after her arrival and she has since worked hard to support herself and her 14-year-old daughter, as the District Judge accepted. The circumstances surrounding this offence, the suspended sentence imposed and the subsequent activation of that suspended sentence therefore all fall to be considered in the balance with the interests of Victoria, now just 14 years of age, and the right to a family life of this Appellant herself.
31. On the evidence before this court, the effects upon Victoria of her mother's extradition to serve a term of almost six years' imprisonment (the period still to be served is 5 years, 11 months and 27 days) would, I accept, be devastating. Her mother has been her sole carer since they both came to this country in August 2011 and it is clear on the evidence that they have a particularly close bond. This was not disputed below. She has no contact with her father and there is no other family to care for her in Latvia. She therefore faces being effectively orphaned if her mother were to be extradited. She refers to having been very depressed and anxious since her mother has been taken into custody and this evidence is not in dispute.
32. Victoria has now been in this country with her mother for almost three years. She is currently attending a local school and studying for her GCSEs, with a view to going on to college. It is correct that her older sister Tamara is currently living with Victoria, while their mother is in custody, in order to look after her. However, in order to do this, Tamara has left the accommodation she was sharing with her own, long-term partner and I accept that this has caused difficulties in her own relationship and could not be sustained for a long period.
33. I do not accept Mr Payter's submission that there is a satisfactory care plan, which could continue. I have to consider the situation as it is now. As a young teenager, Victoria is now at a stage in her life when parental guidance is of particular importance. Tamara is currently working at a gambling establishment in Croydon ("Shoppers Amusements") and she works shift hours, often not arriving home before 11pm. She earns a sum just above the minimum wage and there are significant financial pressures. Victoria and Tamara are currently living in a shared house in East London, sharing one small room and sleeping in bunk beds. They share the kitchen and bathroom, currently with six or seven other young people who also rent rooms at the property, but this is a transient population and the accommodation is, in my view, an inappropriate environment for a 14-year-old girl.
34. While I accept that Tamara is doing all she can to avoid Victoria being taken into care this situation is, in my judgment, precarious and unsustainable. There has so far been no proper consideration of the support Victoria will need to survive without her mother and her future is therefore at risk. There has been some contact between the Appellant's solicitors and Newham Social Services, in connection with a section 17 assessment for Victoria as a 'child in need', but I have no further information about that at present.
35. Victoria refers in her statement to being very concerned not only about being separated from her mother, but also about her inability to communicate with her mother regularly if she is in prison in Latvia for a long period of time. I accept that Victoria would be unable to afford to go to Latvia to visit her in prison. There is no evidence that Tamara could finance such visits and there is no other source of financial support.
36. In such cases the court will look to see whether there are other measures in place in Latvia which could cushion the blow and limit the effects of this separation, such as telephone calls or face-time link up over the telephone, or the internet. The evidence before me from the Prison Administration (dated 26/3/13) indicates that s.49 of the Sentence Execution Code of Latvia allows between one and six telephone calls per month, at the prisoner's expense, or at the family's expense, depending on the sentence. No internet contact is allowed. The expert report from Charles Allen, dated 24 January 2013, states at paragraph 27 that the number of phone conversations permitted depends on the regime level of the convicted person and that "generally this is quite low at the moment". He refers to proposed amendments to the Sentence Execution Code being under way, allowing unlimited access to a pay phone, and therefore dependent on financial means. However, the CPT report of 11 March 2014 repeats the concerns as to limited telephone contact and raises others in relation to prison visits generally (see paragraph 53). There is therefore no evidence before the court showing that this situation has improved since early 2013.
37. On the available evidence Victoria would therefore effectively be isolated from her mother for a substantial period of time and at an important stage of her life. Depriving her of her relationship with her mother at this time would, in my view, be likely to cause significant damage to her social development and psychological well-being. The consequences for Victoria of her mother's extradition would, I accept, be very serious.
38. The absence of effective communication also impacts upon the Appellant's own private and family life in Article 8 terms. Her inability to communicate effectively with Victoria while serving her sentence would, I accept, significantly increase her anxiety as to Victoria's general welfare, and indeed the welfare of her elder daughter.

Conclusion

39. In my judgment, weighing all these factors in the balance, the extradition of this Appellant now would have a profound impact upon the Appellant's daughter Victoria and upon the Appellant herself, for the reasons I have set out above. The public interest in returning this Appellant to serve her sentence, given the unusual circumstances in which this suspended sentence was activated, is not such as to justify the significant harm that would be likely to be caused to Victoria as a result of this prolonged separation from her mother. As Lord Kerr succinctly expressed it in HH, the public interest importance of maintaining a comprehensive system of extradition will not suffer a significant impairment if this Appellant's surrender to the Latvian authorities is not ordered. By contrast, the adverse impact on her and in particular on her young teenage daughter is likely to be profound.
40. For all the reasons set out above I have concluded that this appeal must be allowed.