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
		10 December 2014

1. SIR STEPHEN SILBER: Sofia Pogoda appeals against a decision of District Judge Margot Coleman made at the Westminster Magistrates' Court on 16 October 2014 by which he ordered her extradition to Poland on a conviction European arrest warrant issued out of the Regional Court in Bielsko-Biala on 8 October 2012. It was certified by the Serious Organised Crime Agency on 6 May 2014. The extradition is sought to serve an sentence of imprisonment of one year in respect of an offence of theft of cash from her employer.
2. This offence is alleged to have been committed between 31 December 2004 and 29 June 2005. The appellant was convicted in her presence on 10 January 2006. She was arrested in this country on 4 June 2014 and appeared before the court on the following day.
3. The sole issue raised is whether the appellant's extradition was incompatible with her rights under Article 8 of the European Convention on Human Rights. In a reserved judgment, as I have explained, the District Judge ordered the appellant's extradition.
4. So the sole ground of appeal is that the District Judge was wrong to conclude that her extradition represented a proportionate interference in her right to a private life under Article 8. It is said that if the matter had been looked at correctly, the District Judge would have been obliged to order the appellant's discharge under section 21(4) of the Extradition Act 2003.
5. The circumstances in which an Article 8 claim will preclude an order being made for extradition has been the subject of two important decisions of the Supreme Court. First, in the case of Norris v Government of the United States of America [2010] UKSC 9, in which the Supreme Court reviewed the existing authorities and considered the circumstances in which extradition will be contrary to Article 8.
6. Lord Phillips of Worth Matravers, giving the judgment of the court, stated at paragraph 56:

a. "56. The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the Commission had in mind in Launder (1997) 25 EHRR CD67, 73 when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life. I can see no reason why the District Judge should not, when considering a challenge to extradition founded on article 8, explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition. 'Exceptional circumstances' is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition."

7. The decision in Norris was reconsidered by the Supreme Court in HH v Deputy Prosecutor of the Italian Republic of Genoa [2012] UKSC 25, in which it was asked to consider the extent to which the approach in Norris should be not modified where the interests of children were involved in the light of the decision in ZH (Tanzania). What was of importance in that case is a number of points were made which were of general application, not merely where there are children involved.
8. At paragraph 8 Baroness Hale of Richmond set out a number of important considerations:

a. "8. We can, therefore, draw the following conclusions from Norris:

(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(2) There is no test of exceptionality in either context.

(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(4) 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 either can flee in the belief that they will not be sent back.

(5) 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 crime or crimes involved.

(6) 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.

(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

9. Baroness Hale then proceeded, in paragraph 30, to set out the approach that should be adopted by the courts.
10. In this case, as I have explained, the issue is whether the interference was exceptionally severe.
11. Ms Rebecca Hill, who appears for the appellant, has put forward a clear and impressive case, in which she puts at the forefront of her case the position of the appellant's mental health and the likely deterioration if she is extradited. Although the appellant says that, despite suicidal thoughts, she does not think she would kill herself, the psychologist who examined her, Dr Scheiner, believes if extradited the appellant would present a high risk of self-harm or suicide. Further, it is explained as well that as a result of the extradition the view of the psychologist is that irreparable damage might be done to the appellant's ability to recover from the post-traumatic stress disorder from which she is suffering as a result of the Polish proceedings.
12. Quite correctly, Ms Hill does not contend that the appellant's vulnerable and fragile mental state would enable the court to refuse extradition on the basis of section 25 of the Extradition Act 2003. That is because it is accepted that the Polish authorities could offer proper care to the appellant. However, her point is really that the threat to the appellant's long-term mental stability, the inevitable and grave deterioration she would suffer if extradited, together with other factors, would render the extradition disproportionate.
13. Ms Natasha Draycott, who appears for the judicial authority, points out that the District Judge noted there was no medical evidence before the court and that the appellant had not sought medical intervention or help from her doctor prior to these proceedings. I will bear in mind all these factors in determining whether or not to allow the appeal.
14. The second matter that Ms Hill relies on is the nature of the offence. It is pointed out that this theft, which was theft from an employer, was not done for personal greed but, rather, through a folly and the victim was a large commercial organisation. She also draws to my attention to the facts that the appellant drew to the attention of her employers the theft that she had in fact committed.
15. However, it must not be forgotten that this case was a flagrant breach of trust committed by a long-term employee, over a substantial period of time, and involving a not inconsiderable amount of money.
16. The third point that is made is that the sentence was suspended in the first place and there was partial compliance, which, it is said, should be taken into account. It is pointed out that the evidence of Dr Scheiner and the appellant's own account suggest that the appellant's mental health might have had something to do with this. But, nevertheless, this is a case where she deliberately came over to this country.
17. The next point that is relied on is the delay in this case. It did take four and a half years to issue the European arrest warrant after the suspended sentence was activated. It is suggested by Ms Hill that the delay diminishes the weight to be attached to honouring the international obligations. I will take into account in the appellant's favour the factor of delay.
18. The final point relied upon by Ms Hill is that the appellant has led a law-abiding life in this country. She has worked in a public service role at Cheltenham Hospital, which she has been employed consistently for more than eight years. She lives here with her sister, whose support is clearly important for her.
19. In my view, this is a case where extradition will cause some hardship, but there is no evidence to suggest it will be a disproportionate interference with the appellant's Article 8 rights. I stress that there is a strong public interest in honouring extradition requests of this kind. It is accepted by Ms Hill that it can be assumed that the Polish authorities will take care of the appellant if she is extradited. To make sure that there can be no misunderstanding, I would order that a copy of Dr Scheiner's report is in fact provided to the Polish authorities as soon as possible and in time for her extradition.
20. Thus, notwithstanding the admirable submissions from Ms Hill, this appeal must be dismissed.
21. Thank you very much for the way you have both presented it.
22. Does the order have to say or would it be good idea for the order to say that the report has to be sent?
23. MS HILL: I would be grateful if it would.
24. SIR STEPHEN SILBER: I have never seen it put in a report, but I cannot see any reason why it should not be put in.
25. MS HILL: No.
26. SIR STEPHEN SILBER: What is the date of the report? I am just mentioning it for the purpose of the associate.
27. MS HILL: It is 5 October.
28. SIR STEPHEN SILBER: Could I ask you, before you leave, if you could just draft the order. I think it would make life much easier.
29. MS HILL: Certainly.