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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> ZZ v Ministry of Justice Lithuania [2014] EWHC 4285 (Admin) (17 November 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4285.html
Cite as: [2014] EWHC 4285 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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| MINISTRY OF JUSTICE LITHUANIA | Defendant |
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Ms S Townsend (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
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Crown Copyright ©
- MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003, against the decision of District Judge Zani on 3rd September 2014, to order the appellant's extradition to Lithuania, pursuant to a conviction arrest warrant in order to serve the balance of a 2 year sentence of imprisonment, that is to say 1 year and 10 months. That is the balance of what had been imposed in respect of four offences of fraud altogether.
- The offences in question were committed in November 2009. The total amount obtained was something above £3,000. The offences were committed in association with others. They all related to false information in relation to a supposed road traffic accident. They are serious enough in the sense that they cannot be regarded as in any way trivial and even in this jurisdiction might have crossed the custody threshold, although they would have been very close. The sentence imposed was one of 2 years' imprisonment but that was suspended for two-and-a-half years. The conditions of the suspension were threefold. First, the appellant was obliged to pay compensation to the victims by 1st October 2011, the sentence having been imposed on 12th April; to undertake employment or be registered in the labour exchange until 1st June 2011 and not to leave her place of residence for more than 7 days. She decided to come to this country in August 2011 without informing the authorities in Lithuania that she was doing so, thus she was in breach of the conditions of her suspended sentence. However, it is apparent that she appreciated that she would not be able to pay the compensation by 1st October because she had been unable to obtain work in Lithuania. She decided to come to this country as a result. At that time she was with her husband and, more importantly for the purposes of this appeal, there were three children born respectively in 1998, 2003 and 2006.
- Unfortunately since her coming to this country she and her husband had split up because of his bad behaviour. He has not only been violent to her but has also been violent and unpleasant to the children, with the result that they are obviously frightened of him. He has now, it seems, left the scene. So she has to be regarded as a single parent because there is no question but that it would be quite impossible for the children to be looked after by their father. However, what it does mean is that the reliance of the children on their mother who has looked after them and to an extent protected them from their father is their only carer and thus the wrench to them of being deprived of the care of their mother is likely to be that much greater.
- The relevant local authority has been involved. At the time of the hearing before the District Judge it was not certain that proper arrangements could be made to look after the children were their mother to be extradited. There is a most helpful position statement which has been provided for the purposes of this appeal and it is clear that the local authority has made arrangements which will ensure that the three children are looked after in foster care together and so will not be split up. That of course is something which is necessary in a case such as this to avoid extra hardship on the children in question.
- One has to bear in mind that the appellant deliberately left Lithuania to avoid what was apparent to her namely that there would be an overwhelming probability that she would be made to serve the sentence in question. The starting point clearly for the courts in this country is that great weight must be attached on the obligation, particularly in that sort of situation, to comply with the international obligations resulting from the European arrest warrant system.
- However, as the Supreme Court has made clear in the case of HH, which was heard together with another case FK v Poland, the position of children must be carefully considered. It is a trite observation that any sentence of imprisonment on a parent is likely to bear harshly on children of the family. That, as I say, is inevitable. That in itself will not be sufficient to justify a decision that the term to be disproportionate.
- The situation is somewhat different when the parent in question is a sole parent. That is in reality the position here; the children's mother is their only carer. There is a statement from the eldest child, now aged 16, which makes clear her real concern as to how she would be able to deal with the absence of her mother. There is no question that her mother (the appellant) has been a good mother to all the children. She has done her best to work in this country, to provide for them and to look after them. As I say, there is no criticism of her as a mother.
- The offences in question are not the most serious. They are, as I have said, by no means trivial and it is not entirely surprising that a custodial sentence was considered appropriate, albeit 2 years I do not doubt is harsher than the sentence that would have been likely to have been imposed in this country. Indeed having regard to the fact that there may have been an element of pressure by others with whom she was involved in the commission of this offences and the overall amounts, it is highly unlikely that a custodial sentence would have been imposed in this country. That is by no means a conclusive factor because it is important that we respect the approach that is deemed appropriate in another country in relation to what is the correct penalty for offending behaviour. We do not know what are the full circumstances, what is for example the prevalence in a particular sort of offence which may lead to what appears to be a harsher penalty than would be imposed here. Nonetheless, as I say, looking at the circumstances and the consideration of the level of offending is something which is material. It is to be noted that in the case of FK before the Supreme Court, the level of offending was at least as serious if not more serious than that involved here and the court allowed the appeal of FK.
- This is as are all these cases a very difficult one for the court to deal with. The breakdown of the family resulting from the father's bad behaviour is a factor which clearly increases the damage to the children were their mother to be extradited. That is a factor which I can properly take into account.
- I have to decide where the balance should be struck having regard, as I have already said, to the very great weight that has to be attached to the need to comply with a arrest warrant, particularly where the individual in question has deliberately left the country in order to avoid serving a sentence of imprisonment.
- Having said that, I am satisfied that this case does fall on the side of the line which is favourable to the appellant in all the circumstances. Because of what was happened to the marriage and because of the fact that albeit the local authority will have done their best in sorting out a placement which will keep the children together, nonetheless it is obvious that there will be real damage to those children were their mother to be removed. Of course the sentence that has to be served is a substantial one. They would be without their mother at an important time in their young lives for the possibility of as much as just under 2 years which is a substantial period. It is to be noted of course that she has served 2 months' imprisonment on remand. By all accounts that was a pretty horrible experience for her. She has not gone entirely unpunished for the commission of the offences in question.
- In all the circumstances, and I emphasise that this case like almost all these cases depends entirely on its own facts, I am persuaded that it will not be right for her to be extradited and accordingly I should allow this appeal.
- MR COOPER: My Lord, I am grateful for the court's careful judgment. There are just two very minor points which matter not, but...
- MR JUSTICE COLLINS: Yes, I am quite prepared to recognise that I may have got some things wrong in an extempore judgment.
- MR COOPER: Would the court prefer if I put them by e-mail?
- MR JUSTICE COLLINS: Put them now because they can be corrected in the transcript.
- MR COOPER: The first point was simply the court referred to the children being twins.
- MR JUSTICE COLLINS: I got that from the dates of birth, they seem to be the same.
- MR COOPER: Can I refer the court to the chronology at page 3 of the appellant's skeleton argument where I set --
- MR JUSTICE COLLINS: May be I was looking at the wrong argument.
- MR COOPER: My Lord, the short point is the children are 8, 11 and 16.
- MR JUSTICE COLLINS: You are quite right. There must have been a mistake on document I saw. The children are 16, 8 and 11. That will be corrected.
- MR COOPER: The other point, it may have been my hearing, if the court referred to SK it was FK.
- MR JUSTICE COLLINS: I think I said FK.
- MR COOPER: Thank you.