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
		16 April 2015

1. MRS JUSTICE LANG: The appellant appeals against the order of District Judge Coleman, made on 30 January 2015, ordering his extradition to Lithuania under section 21(3) of the Extradition Act 2003 ("the 2003 Act").
2. The warrant is based on a ruling of the Telsiai Region District Court of 10 June 2013, activating a suspended sentence of 18 months imprisonment because of breach of conditions. It stated:

"By the judgment of 24 July 2012 of Telsiai Region District Court the execution of a sentence imposed on [the appellant} has been suspended by 1 year and 6 months, obligating him for the period of the suspended sentence not to leave the place of his residence longer than for 7 days without the consent of the institution supervising the suspension of the sentence execution. The convicted person did not comply with the obligations imposed by the court during the period of his suspended sentence. Therefore [the court] has decided to cancel the suspension of the sentence execution by its ruling on 10 June 2013. The execution of the sentence did not commence because [the appellant] has absconded from serving the sentence."

3. The appellant was convicted of an offence of swindling committed where a person, by deceit, acquires another person's property for his own benefit. It is punishable by a maximum sentence of 3 years' imprisonment. The warrant also referred to offences concerning counterfeit electronic means of payment with a maximum sentence of 6 years' imprisonment.
4. He was sentenced to a period of imprisonment of 18 months, suspended for 18 months. The warrant was certified on 10 February 2014. The appellant was arrested on 6 November 2014 and detained until bail was granted on 12 December 2014, subject to reporting conditions and a night-time curfew between midnight and 3 am.
5. Before the district judge the only bar to extradition relied upon was under section 21 of the 2003 Act, namely that the extradition was not compatible with the appellant's human rights under the European Human Convention on Human Rights, in particular article 8.
6. In a judgment, dated 30 January 2015, District Judge Coleman concluded that the family and private life factors against extradition did not outweigh the public interest in favour of extradition.
7. The appellant submitted a notice of appeal but has never filed any grounds of appeal. Whilst I appreciate the time pressures in extradition appeals, I wish to record that this is unacceptable.
8. The appellant now appeals on the basis that the decision to extradite him would be incompatible with his article 8 rights and those of his family living in the UK. His mother is very unwell and he provides childcare for his niece, aged 8, while his sister is at work. His sister is also ill with Hepatitis B and a skin complaint.

The Law

9. Section 26 of the 2003 Act confers a right of appeal against an order of extradition on a question of law or fact. Section 27 sets out the court's power on appeal as follows:

"(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at The extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he Would have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

10. The principles engaged in extradition cases which raise article 8 issues have been considered by the Supreme Court in two leading cases. In Norris v The Government of The United States of America (No 2) [2010] 2 WLR 572, the Supreme Court held that there should be no absolute rule that extradition would always be proportionate in cases where the article 8 rights of the requested person and his family were engaged.
11. In paragraph 56 of his judgment Lord Phillips of Worth Matravers, with whom all other members of the court agreed, said:

"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 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."

12. In HH v Deputy Prosecutor of The Italian Republic [2013] 1 AC at 338 SC Baroness Hale drew the following conclusions from Norris, at [8]:

"(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."

13. In HH, Lord Judge explained the extent to which sentencing practices in the UK might be taken into account. He said, at [132]:

"When resistance to extradition is advanced, as in effect it is in each of these appeals, 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)."

Discussion and Conclusions

14. The warrant states that on 8 August 2011 the appellant took advantage of the disability, ie mild mental retardation and emotional disorder of the victim, lied that a friend from abroad had to transfer money to him, promised him money, and unlawfully acquired by deceit the victim's electronic bank account details. On 9 August 2011 he used those details to obtain a loan in the sum of LTL 750. I am told that is about £170 Sterling.
15. I consider that the district judge was correct to conclude that this was a relatively serious offence. She pointed out that it was premeditated and, although it did not involve a large amount of money, it did involve taking advantage of a vulnerable individual and abusing the trust placed in him.
16. The suspended sentence of 18 months' imprisonment imposed by the court is an indicator of the seriousness with which the Lithuanian court viewed the offence.
17. I am not convinced by the appellant's submission that a custodial sentence, whether immediate or suspended, would not have been passed in the UK courts for an offence of this kind. Under the sentencing guidelines he probably fell within category 5A, in which case the starting point would be 36 weeks with a range of a high level community order to 1 year's custody. However, previous convictions are an aggravating factor and he had two previous convictions for offences of violence. He served 18 months detention in a Young Offenders' Institute for one and 6 months imprisonment for the other. In reaching the conclusion that a custodial sentence might have been imposed in the UK, I take into account the appellant's youth. His date of birth is 13 May 1992. So he was 20 when he was convicted in July 2012, and 19 when he committed the offence.
18. It is important to bear in mind that the Lithuanian court suspended the sentence of imprisonment and the appellant is only facing custody because he has been in flagrant breach of the conditions imposed by the court.
19. The district judge recounted the appellant's evidence to the effect that he came to the UK at the end of 2012 to help care for his mother, at the invitation of his sister. He did so without the permission of his probation officer and knowing it was a breach of the court order made only 5 months earlier. The district judge recorded:

"He conceded that he knew what the consequence would be, namely that the suspended sentence would be activated."

20. He did not make any effective contact with the probation officer when he arrived in the UK either and never disclosed his whereabouts. He has not taken any steps to regularise the position.
21. Mr Cooper drew my attention to the discretion which UK courts have to activate a suspended sentence wholly or in part. For all I know, the court in Lithuania has a similar discretion. But as the appellant absconded and the breach hearing was dealt with in his absence, arguments on his behalf in favour of partial activation or no activation of the custodial sentence were not presented to the court. He must take the blame for that. At the last hearing the appellant apparently indicated that he wished to apply to the Lithuanian court to reopen the decision to reactivate in full. I am informed today by the appellant's counsel that he has been told by his Lithuanian lawyer that it is too late now to do so. The respondent's counsel, Ms Bostock, says she has no information about the powers of the Lithuania court and can neither accept nor dispute what is said by the appellant.
22. The district judge correctly noted that this was not a particularly old offence. The delay has been has been caused by the appellant's absconding.
23. As Ms Bostock points out in her skeleton argument, the appellant has not led a blameless life in his brief stay in this jurisdiction. I think it would be premature to assume that he has grown out of his youthful misdeeds. On 2 May 2013 he was cautioned for using threatening, abusive or insulting words or behaviour. On 19 November 2013 he pleaded guilty to an offence of criminal damage, receiving an absolute discharge and an order for costs.
24. On the positive side, he has complied with his bail conditions to report and with the night-time curfew. However, the brief time spent in custody and the restrictions on his bail, whilst to be weighed in the balance, fall well short of the 18 months sentence he is liable to serve.
25. The district judge took into account the "ongoing significant and weighty public interest in upholding extradition agreements". In my judgment she was correct to give this factor significant weight in this case.

Family and Private Life

26. The appellant was born in Lithuania. He has six sisters. Two brothers are deceased. His mother was unable to care for the children because of alcohol abuse and so he and his sisters were brought up in children's homes. He has only resumed contact with his mother in the last three years.
27. His older sister, Silva, whose date of birth is 5 September 1988, came to the UK in 2008. She has a daughter, Gabrielle, aged 8 and she is a single parent. Another sister, Monica, lives in the UK too with her husband and children. His other four sisters still live in Lithuania, three of whom have their own families.
28. In 2011 Silva invited their mother, Zita, to come to the UK to live with her because she was seriously ill. The medical care in Lithuania was inferior to that available in the UK and Silva wanted to look after her.
29. In 2012 Silva asked the appellant to come to the UK to live with them, to help look after their mother and to assist her with childcare whilst she went out to work. Silva was working part-time in a shop but is now working full time in a car wash. The appellant does not work and cares for his mother full time and looks after Gabrielle while Silva is at work.
30. Ordinarily relationships between adult siblings and relationships between parents and adult children do not constitute family for the purposes of article 8 (see Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 at paragraphs 14-25. However, each case has to be assessed on its own particular facts. In this case the appellant was not brought up by his mother and does not have a history of long residence or mutual dependence (emotional or financial) with his mother or sister. I suspect that the cohabitation is a temporary arrangement which is expedient for all concerned. However, as the district judge apparently accepted that there was sufficient family life to engage article 8, and this was not disputed by the respondent, I consider that I ought not to disturb that finding.
31. The appellant's relationships and current living arrangements with his mother, sister and niece also fall within the scope of his private life and therefore article 8 is also engaged in that respect. Article 8 of course protects the rights not only of the appellant but also his family members.
32. I accept that it is convenient and economic for the appellant to provide care for Gabrielle, thus enabling Silva to work longer hours and not have to pay for the cost of childcare. However, this arrangement is readily distinguishable from those cases in which a child is at risk of being separated from his or her parent or primary carer. Gabrielle is not emotionally or financially dependent on the appellant. Prior to the appellant's arrival in the UK at the end of 2012 she would have had little contact with him.
33. The appellant is a young man with his life ahead of him and it is reasonable to assume that in due course he will move on to live elsewhere, probably to form a family of his own, as his sisters have done.
34. The appellant's mother, Zita, has lung cancer, chronic osteomyelitis of the lower leg with impaired mobility, asthma, and obstructive pulmonary disease. She is receiving medical treatment for all these conditions. Her lung cancer was first diagnosed in February 2013 and so the appellant was not aware of her cancer when he decided to come to the UK to help look after her. She was treated with chemotherapy and radiotherapy for her lung cancer in June and July 2013.
35. At the hearing before the district judge the most recent medical evidence was a letter dated 6 August 2014, which I have not seen, but which stated that she had responded well to treatment and that the cancer appeared to be in remission. The district judge made her assessment of proportionality on that basis. She accepted that Zita had multiple health problems but noted that she was not bedridden and that her health was reasonably stable. She noted Zita was in receipt of disability living allowance at the higher level of £138 per week. She recorded the evidence from the appellant that none of the other sisters could care for their mother. However, she considered that Silva could care for her mother, if necessary giving up work. The district judge concluded that, difficult though extradition would be for the family, those difficulties did not outweigh the strong public interest in extradition.
36. In my judgment, the district judge applied the correct legal principles, conducted the balancing exercise appropriately and reached a conclusion that she was entitled to come to and which does not disclose any error.
37. However, the appellant has applied to adduce fresh medical evidence about Zita's condition. This was not opposed by the respondent and Mr Justice Sweeney adjourned the earlier hearing on 25~March to enable medical reports to be obtained.
38. The report, dated 2 April 2015, from Dr Franks at St James' Hospital, states that a scan on 19 November (which I believe must be November 2014) was suggestive of lung cancer and in further tests on 20 February 2015 it was confirmed that she had developed a new primary lung cancer. She is due to undergo SABR treatment: eight sessions as an outpatient between 14 April and 1 May 2015. The success rate of this treatment is relatively high. During the treatment she will experience fatigue, pain and shortness of breath and she will need care at home and help to travel to and from the hospital.
39. As this evidence was not in existence at the date of the Magistrates Court hearing and was directly relevant to the appellant's ground of appeal, I concluded that I ought to consider it on appeal. I agree with the respondent that the new witness evidence from the appellant and Silva ought not to be considered, save insofar as it provides updating information which was not available at the time of the hearing before the district judge.
40. I have had regard to the conditions in subsection (4) of section 27 and the divisional court judgment in the case of Hungary v Fenyvesi [2009] EWHC 231 Admin
41. The district judge was aware that Zita was suffering from multiple illnesses, some of which were potentially life threatening. Although at the time of her decision, Zita's condition was said to be stable, it must have been obvious that she might deteriorate whilst the appellant was in prison. I do not consider that the fresh medical evidence would have led the district judge to a different conclusion nor ought it to have done.
42. The period of outpatient treatment for her cancer in April and May (when she will need the most care and to be transported to and from hospital) is for a period of less than three weeks. The general practitioner's report from Dr Ling, dated 20 March, states that she is frail and needs someone to care for her at home, particularly after the radiotherapy. The report states:

"It would be ideal for (Zita) to be looked after by her own family member if they available. Should she be unable to cope at home the adult Social Service care will assess her needs and provide support as needed."

43. In my view the family's predicament in caring for an ailing, elderly relative is difficult but by no means exceptional. Zita is living with her daughter Silva who, if necessary, could return to part-time work, as she did when the appellant was not there. Silva's income is supplemented by child benefit, housing benefit and tax credits. If she is not working she will also be eligible for job seeker's allowance. Zita's disability living allowance is relatively generous, at £138 a week, and can be used to purchase care or supplement the family income. Silva's illness has not prevented her from working full time, nor from caring for her mother and her child.
44. There is, of course, another daughter living in the UK and, as Dr Ling indicates, the safety net of Social Services' care is also available. In the medium to longer term Zita also has the option of returning to her home country, Lithuania, where she has four other daughters. So the appellant's extradition does not deprive Zita of her only family member who might reasonably be expected to support her. The court can only give limited weight to the possibility that Zita's other family members may choose not to support her, or that Zita may choose not to live near her family members, either elsewhere in the UK or in Lithuania.
45. Beyond normal family ties, Zita is not exceptionally emotionally or financially dependent upon the appellant. Whilst no doubt Zita and the appellant have become much closer since he came to live with her in 2012, they have in fact been separated and estranged for most of his life. The appellant is providing essential care to her now but this care could be provided by others. I take into account the point that the appellant's reunion with his mother is of particular value to them both after such a long separation but fortunately they have had some two and a half years together in the UK and presumably they can stay in contact by letter whilst he is in prison.
46. I have conducted the balancing exercise afresh on the basis of the new evidence. In my judgment, the recurrence of Zita's cancer does not render the extradition disproportionate, having regard to all the factors to be weighed in the balance, which I have set out above.
47. On the facts of this case the consequences of the interference with the family and private life under article 8 are not so severe as to outweigh the public interest in extradition.
48. Therefore, the appeal will be dismissed. The decision of the court will become final 14 days from today. The extradition should take place within ten days after that. In the meantime the appellant should remain on bail in accordance with usual practice, subject of course to compliance with his bail conditions. Fortunately this will enable him to be in the UK for a little longer during the current radiotherapy treatment which is due to finish on 2 May.
49. MRS JUSTICE LANG: Are there any other matters?
50. MR COOPER: My Lady, not as far as the appellant.
51. MS BOSTOCK: Not from me either.
52. MRS JUSTICE LANG: I wonder if I could have the book back?
53. MR COOPER: Of course.