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
		14 January 2015

1. SIR STEPHEN SILBER: Alexander Petrovs appeals against an order made by District Judge Coleman at the Westminster Magistrates' Court on 3 December 2014 to order the extradition of the Appellant pursuant to a European Arrest Warrant issued by the Prosecutor General's Office in the Republic of Latvia on 11 September 2013 and which was certified by the National Crime Agency on 17 October 2013.
2. The warrant seeks to enforce decisions ordering for the Appellant's request for two allegations, the first being one of theft or burglary of jewellery valued at about £300 on 20 April 2008 between 30 and 31 January 2008 in which the Appellant and another entered a jewellery shop. They went to an area confined for permanent and temporary valuables, mainly storage facilities, and used a device adopted for the commission of the offence to steal these items.
3. The second offence for which his extradition is sought is the theft of two wing mirrors from a Mercedes motor car on 1 April 2011. It is said to have happened when the Appellant was under the influence of drugs. The loss to the complainant is said to be about £500.
4. The Appellant resisted his extradition on the grounds that it would constitute an interference with his rights under Articles 3 and 8 of the European Convention on Human Rights.
5. He was first produced at the City of Westminster Magistrates' Court on 28 October 2013. The proceedings were adjourned because the Appellant was serving a sentence of 22 months imposed on him at Blackfriars Crown Court for offences of robbery for which he received a sentence of 16 months and burglary for which he received a consecutive sentence of 6 months.
6. There was a contested hearing in front of the District Judge. The District Judge noted that the Appellant had been candid in his proof, giving details of his offending history and drug abuse in Latvia, which was long standing. It is noted that since he has been in the United Kingdom he has accumulated an unenviable list of convictions, his first being cautioned for theft on 1 October 2012. He has then been to court for offences of theft and burglary on six more occasions. He has been sentenced to prison on three occasions. He has no home or family in the United Kingdom.
7. His Article 3 case is based on the fact that he fears retribution from a gang called "the Japanese" and was described by the Appellant as being ruthless and violent. The District Judge noted the fear expressed was very vague and general and he heard no evidence on which he could reach any conclusions that the Latvian authorities would not be willing or able to fulfil its obligations under the Convention.
8. Mr Cadman who appears on behalf of the Respondent accepts the test of the court in considering an Article 3 breach of this sort was set out in Krolik v Poland [2012] EWHC 2357 (Admin) by the President of the Queen's Bench Division, who then was Sir John Thomas.
9. It has been more recently repeated in Brazuks v Latvia [2014] EWHC 1021 at paragraph 4:

i. "In assessing whether there may be a breach of Article 3, the approach which must be applied has been considered in a number of cases. A very strong case must be established to show that there would be a real risk that the requested person would be subjected to treatment which would breach his or her rights in that he or she would suffer torture or inhuman or degrading treatment. Latvia, in common with all states which can use the EAW procedure, is a signatory to the ECHR and a member of the Council of Europe. Accordingly, it would take very strong and cogent evidence to show that Latvia or any requesting state within the EU was not willing or able to fulfil; its obligations under the Conventions. A number of cases have referred to a presumption that states will comply with their Convention obligations which will have to be overcome by evidence in a particular case. In one of the most recent cases, Aleksynas & Others v Lithuania [2014] EWHC 437 (Admin), Jay J, who was sitting with Moses LJ, said in paragraph 98:

ii. "Perhaps the better way of expressing the matter is that the Appellants face the legal burden of proving that the requesting state would not fulfil its obligations under the Convention, and that the threshold is a relatively high one ('strong grounds for believing')"."

10. In this case, as the District Judge noted, the fear was very vague and there was nothing to suggest that the Latvian authority would not be able to give him proper protection.
11. So far as the Article 8 point is concerned, the law on that has been clarified by two decisions of the Supreme Court, the first one being in Norris v United States No 2 [2010] UKSC 9 and more recently HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.
12. The test that has to be applied is whether the interference with the private and family life of the person to be extradited, other than his family, is outweighed by the public interest in extradition.
13. Baroness Hale explained in paragraph 8 of HH:

i. "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."

14. In this case, there is no evidence to suggest the effect on the Appellant's private life would be exceptionally severe, taking into account all the relevant matters. He has no family or job in the United Kingdom and, as I have explained, he has spent long periods in prison and therefore, subject to the Respondent satisfying the provisions of section 21A of the Extradition Act 2003, there would appear to be no bars to extradition.
15. Section 21A is relevant because section 11A of the Act points out if a person is accused of the commission of the offence but is not alleged to be unlawfully at large after conviction of it, the judge has to proceed under section 21A:

i. "(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D") -

(b) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(c) whether the extradition would be disproportionate.

i. (2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

ii. (3) These are the specified matters relating to proportionality -

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

iii. (4) The judge must order D's discharge if the judge makes one or both of these decisions -

(a) that the extradition would not be compatible with the Convention rights;

(b) that the extradition would be disproportionate.

iv. (5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions -

(a) that the extradition would be compatible with the Convention rights;

(b) that the extradition would not be disproportionate.

v. (6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.

vi. (7) If the person is remanded in custody, the appropriate judge may later grant bail.

vii. (8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."

16. My task is deciding whether the extradition would be proportionate. There are three matters referred to in sub-section (3) to which I have referred.
17. Insofar as the seriousness of the conduct alleged to commit the extradition offence, in this case they were repeated offences of dishonesty which, although they fall in the mid range of that, they would constitute serious offences.
18. The second factor is the likely penalty that would be imposed. We have no evidence in respect of this, but what is clear is that, as the District Judge found, the Appellant had given details of his offending history and drug abuse in Latvia, which were long standing. Dealing as best I can without any evidence at all, it would seem very likely to me, of what I have seen of many other sentences imposed in similar Polish cases, that he would have received a substantial custodial sentence.
19. Finally, the matter is to be considered under sub-section (3) is the possibility if he was to be extradited that measures could be taken that would be less coercive than the extradition of the Appellant. I think that is unlikely.
20. I also have to take into account on proportionality part 17A of the Criminal Practice Direction. It refers to the seriousness or the exceptional circumstances. They include matters such as the fact there are "multiple counts" and "previous offending history". Both of those are matters which would constitute aggravating factors.
21. So having considered all the matters under section 21A and the Criminal Practice Direction, I am satisfied that it is entirely proportionate to extradite the Appellant and that there are no bars to it. Therefore, I would be minded to dismiss the appeal.
22. The only problem is that the Appellant has not appeared. He is in custody. He has solicitors acting for him. They have not turned up at all. Nothing has been said to explain why he is not here. I raised with Mr Cadman the possibility that he might have a good reason for not being here.
23. For those reasons, I have suggested to Mr Cadman, and he agreed, that the Appellant should have liberty to apply to set aside or vary my order dismissing the appeal provided he does so within 7 days, accompanied by a witness statement.
24. Thank you very much.