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
		15 October 2014

1. MR JUSTICE BLAKE: This is an appeal against a decision of District Judge Coleman given on 27 June 2014 ordering the Appellant's return to Poland on an accusation European Arrest Warrant containing two counts.
2. There are two grounds of appeal developed. Ground 1 is that the European Arrest Warrant fails to contain the necessary particulars to satisfy the requirements of section 2(4) of the Extradition Act 2003.
3. The second was that the judge was wrong to conclude that extradition was justified and proportionate, having regard to the adverse impact on the two children of the Appellant, now aged 14 and 15, of whom he is the principal carer.
4. In respect of the second ground there have been material developments since the judge made his decision. At that time, the matter had been properly investigated by the local authority who were alerted to a child at potential risk issue in October 2013 when the Appellant was first arrested on the European Arrest Warrant.
5. The children had come across to the United Kingdom in 2012 and were attending school at Wellingborough. They originally lived alone with their father. At some stage the Appellant moved in with another partner, whom he had met and formed a relationship with in England, and that other partner gave birth to his child in September 2013. It seemed likely that the partner would agree to be the principal carer of all three children in the event of the Appellant's extradition to Poland.
6. Secondly, there was a detailed report from a social worker, Jemma Ginns, of the Wellingborough Child in Need team who had recommended that in the event that the present partner would not look after the Appellant's two children, the children would be fostered with a family in Wellingborough, kept together and enabled to continue their education and their cultural nexus to Wellingborough. The option of returning the children to be with their Polish mother, who was still resident in Poland, was not considered suitable since, first, there was no accommodation for them there; and, secondly, the children had expressed a strong wish not to return to the mother.
7. The development since the hearing has been that the present partner has now told Social Services in July and this court in a witness statement dated September 2014 that she now has decided she could not look after the 14 and 15-year old as well as her young son. Secondly, it transpires that the panel of Wellingborough Social Services who had received the report have made a decision in September 2014 not to presently take the children into care as children in need and to foster them in their father's absence but to pursue enquiries, which to date have not yielded any fruit, as to whether the mother in Poland would look after them. It is therefore submitted that the impact of the Appellant's extradition on the children is uncertain and there is no presently clear plan for their care, as the judge understandably thought there was, at the time when the matter was before him.
8. Having regard to the material that is now before the court, I accept that the position is unsatisfactory and needs to be clarified. The attitude of the local authority as to whether they would now resume the plan of fostering the children in Wellingborough needs to be explored. If not, there are substantial issues that would need to be determined on appeal. I therefore propose to adjourn the Article 8 issue to a date to be fixed and I will discuss with counsel when that date should be.
9. The first issue, however, is a distinct one and, having explored the matter, there seems to be no reason why I should not determine it now. If it is a good one, it is of course a complete answer to this appeal and would preclude the need for a further Article 8 hearing. If it is not, then it can be removed from the issues in the outstanding appeal that can be entirely focused upon the arrangements to be made for the children.
10. In box E of the European Arrest Warrant the conduct for which the Appellant's return is sought is described as follows:

"1. Throughout June 2009 in Gorzow Wlkp. and other towns in Poland, Holland, Germany, Denmark, Sweden and Norway, jointly with [MK, TB, BJ, MB] and other persons, was involved in organised criminal group headed by [HB], whose aim was illegal trafficking through the territory of other Member States and taking outside the customs territory of the European Union and subsequent sale of considerable volumes of eatable cat (Catha edulis), while his role consisted in carrying the said drugs from Holland to Denmark; that is an offence under Article 258 [para] 1 of the Criminal Code.

2. Throughout June 2009 in Gorzow Wlkp. and other towns in Poland, Holland, Germany and Denmark acting in an organised criminal group aimed at perpetrating offences jointly and in conspiracy with [the same people as in Count 1] in various personal configurations, at short time intervals, with a premeditated intent, in contravention of the provisions of the law, with a view to getting a material gain, and by making perpetration of offences his ready source of proceeds, took part in trafficking considerable volumes of narcotic drugs in the form of eatable cat (Catha edulis) of the total weight of 368.5 kg by carrying 200 kg of the said narcotic drug from Holland through Germany to Denmark, and intending to resell it in Denmark carried from Holland to Germany with a drug weighing a considerable 168.5 kg was seized; that is an offence under Article 56.3 of the Law of 29 July 2005 Anti Drug Abuse Enforcement Act . . . "

11. Other legal provisions of Polish law are set out elsewhere in the warrant.
12. Box E.1 of the warrant was ticked, indicating that this was a framework offence punishable by a maximum of at least three years as defined in the laws of issuing state and the two framework offences that were ticked were "Participation in a criminal organisation" and "Illicit trafficking in narcotic drugs and psychotropic substances". I should indicate that in reciting the particulars of the other people in Offence 1, I have initialised their names for the sake of convenience.
13. The learned judge was directed to the terms of section 2(4)(c) of the Extradition Act 2003, which states that the warrant must state:

" . . . particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence . . . "

14. There is a volume of well-known jurisprudence which says that these particulars have to be given in the warrant, should not be looked for by extraneous information and should be sufficiently clearly identified to enable the Appellant to understand what he is accused of and also to ensure that any defence that he may have to extradition for those offences can be articulated by reference to sufficient information as to the conduct. I accept entirely those principles when considering whether the statutory requirement has been fulfilled in this case.
15. By way of explanation of the point, Mr Hearn, who appears for the Appellant, draws attention to section 64 of the Extradition Act 2003 and indicates that it is a requirement of a framework offence that the conduct has been committed in the category 1 territory (see section 64(2)(a)) and no part of it occurs in the United Kingdom. It is not suggested that the wording of the offence indicates that any part of the conduct has occurred in the United Kingdom, but the critical issue is whether the conduct has been sufficiently identified in the warrant so the Appellant can know whether he is alleged to have committed the offence in Poland. It is sufficient if part of the offence has been committed in Poland to found jurisdiction, both, of course, under the framework offence route (section 64(2)) or the dual criminalality route (section 64(3)).
16. Mr Hearn submits that the language of the warrant must be such that the only reasonable inference to be drawn is that the conduct described involved an offence in Poland. I agree with the test. He then submits that the description in the warrant makes it entirely unclear as to whether it is suggested that anything has taken place in Poland, as opposed merely to the fact that the conspirators, or some of them, came from Poland. He submits that it would not be a framework offence unless it was clear that the conduct was committed, at least in part, in Poland and if the language in the warrant is sufficiently ambiguous on this question, then that is a powerful indication that the particulars are inadequate.
17. Whilst I agree with the legal propositions so far developed by Mr Hearn, I part company with him on their application to the language of this particular offence. It is common ground that if the warrant is indicating that the agreement to become a member of a criminal gang, Count 1, or to traffic drugs internationally elsewhere in the European Union was entered into in Poland, then that is a sufficient criminal act in Poland to make the conspiracy or the membership of a gang, even before it has carried out the illegal purposes for which it was formed, an offence committed in Poland.
18. In my judgment, the District Judge was correct to conclude that the wording in the warrant was sufficient. In my judgment, the only purpose of identifying June 2009, Gorzow, and other towns in Poland is indicating that that was the place and the time in which the agreement to become a criminal gang member was first formed and the agreement to traffic drugs was first formed. There is no other explanation that is reasonably available for introducing that time and place into the conduct described. I reject the proposition that a reasonable interpretation was that that was the place of origin of one or more of the conspirators or gang members.
19. Accordingly, on this point I dismiss the Appellant's appeal.
20. That leaves only the Article 8 issue. How long are we going to need to get further enquiries? 28 days?
21. MR HEARN: I think as a minimum, my Lord. There's a suggestion in the letter from Mr Studdart -- I think he's setting out, in fairness, a worst case scenario, but I would hope that Social Services will reflect on the submissions that he is going to make to them, the representations and, of course, the decision of this court to adjourn the appeal. One would hope that there will be cooperation.
22. MR JUSTICE BLAKE: I hope someone will explain to them that this court has adjourned the appeal and why it has adjourned the appeal. Does the judicial authority participate in this or does it just wait to see what happens? Does it communicate the matter?
23. MR SEIFERT: My Lord, given that it's a question of the Social Services providing a response to any request of how the children will be cared for, I don't think it's proposed that the children would necessarily go to Poland. Indeed, I believe they don't want to go to Poland.
24. MR JUSTICE BLAKE: The children certainly don't want to go Poland but the panel, the safeguarding panel --
25. MR HEARN: I'm not sure of the exact name.
26. MR JUSTICE BLAKE: -- would rather think that was a brilliant idea.
27. MR SEIFERT: Yes.
28. MR JUSTICE BLAKE: But I think as long as the local authority are aware that this court has adjourned and the principal reason for the adjournment is clarification of their proposals to safeguard the welfare of these two young people and that the court needs to keep a watchful eye on the passage of time, I think that 28 days in the first instance is the appropriate time, with directions that the court is updated after 21 days, so we don't have the last minute rush scenario that we usually have. If by then it is apparent that an important decision has yet to be made by the safeguarding panel or the mother in Poland is now coming up with a penthouse suite in Warsaw with all educational facilities that any child could possibly want, then we might have to wait and see a little bit further. But at least the master who will probably be in charge of further adjournments will know what it is about.
29. MR HEARN: Yes, my Lord. Can I undertake to draft a proposed order with my learned friend's assistance?
30. MR JUSTICE BLAKE: That would be very helpful if you could do that, yes. Do you need an expedited transcript of these remarks?
31. MR HEARN: It may well assist.
32. MR JUSTICE BLAKE: Then that would mean, I hope, that we have made some progress today, even though we haven't made complete progress. But at least we know what we're looking for. Thank you for your help.