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
		30/06/2015

Mr Justice Holroyde:

1. On 13^th February 2015, District Judge (Magistrates' Courts) Snow ordered that the Appellant be extradited to Lithuania to stand his trial on a charge of supplying cannabis to another. The Appellant has appealed against that decision. At the conclusion of the hearing I reserved my judgment, which I now give.
2. The Appellant was born on the 9^th May 1985, and so is now 30 years old. The Respondent alleges that on 31^st March 2010 the Appellant bought 0.38 grams of cannabis in the vicinity of the railway station in Vilnius, travelled some distance by train to another town, and there sold the cannabis to an acquaintance for the same price as he had paid for it – a sum equivalent to about £7.50. On 21^st June 2010 the Appellant learned that the police were looking for him, and went to his local police station. He was detained for two days, and it is alleged that on 23^rd June he admitted the offence. He was then released, subject to a written commitment that he would not leave his residence without the permission of the court or the police.
3. It is alleged that in breach of that commitment, the Appellant came to the United Kingdom in August 2010. On 17^th November 2010 he was summonsed to attend at his local police station in Lithuania, but did not do so. In December 2010 the Lithuanian police learned that he was no longer in their country. On the 9^th July 2013 the Respondent issued a European Arrest Warrant seeking the surrender of the Appellant. It was certified by the National Crime Agency on 11^th November 2014. The Appellant was arrested on 14^th November 2014.
4. The Appellant denies the alleged offence. Whilst in the UK he has (at his own expense) acquired qualifications as a fork lift truck driver, and he was in good employment at the time of his arrest. He was living in Hertfordshire with his parents and sister: they are not dependant upon him financially, and he has no dependants. He has no convictions in his native country. Whilst in this country, he has been convicted (in 2013) of being drunk in a public place. When arrested for that offence, he initially gave a false name. Later, when sober, he gave his correct details. It is submitted on his behalf that the giving of the false name was the product of his intoxication rather than an attempt to avoid being identified as a person wanted in Lithuania. He had also received in this country a police caution for a separate incident of drunkenness.

The relevant law:

5. Part 1 of the Extradition Act 2003 applies to this case. Section 11 of that Act identifies a number of possible bars to extradition. One is "the passage of time". Section 14 applies to such cases: in an "accusation" case such as this, it provides that extradition is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite the Requested Person by reason of the passage of time since his alleged commission of the offence.
6. Where there is no statutory bar to extradition the court must proceed, in a case such as this, in accordance with section 21A of the Act. That section came into force on 21^st July, 2014. So far as is material for present purposes, it provides –

"(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")—

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

(b) whether the extradition would be disproportionate.

(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.

(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.

(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.

(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.

(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."

7. The section thus raises two separate questions, albeit that they may overlap, and the court must give separate consideration to both: see Miraszewski v Poland [2014] EWHC 4261 (Admin).
8. In considering whether or not extradition would be compatible with the Appellant's Convention rights under Article 8, the court must apply the principles which have been laid down by the Supreme Court in the familiar cases of Norris v Government of USA (no 2) [2010] UKSC 9 and HH v Deputy Prosecutor of Italian Republic, Genoa [2012] UKSC 25. At paragraph 8 of her speech in HH (a case in which the interests of children were particularly relevant), Baroness Hale said –

"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. The principles established by those two cases have recently been summarised by a Divisional Court in Polish Judicial Authorities v Celinski & others [2015] EWHC 1274 (Admin). In the course of his judgment in that case, the Lord Chief Justice emphasised that the public interest in ensuring that extradition arrangements are honoured is very high. The decisions of a judicial authority in a member state making the request for extradition should be accorded a proper degree of mutual confidence and respect, and the independence of prosecutorial decisions must be borne in mind. Mitigating factors will ordinarily be taken into account by the court in the requesting state.
10. At paragraph 13(ii) and (iii) the Lord Chief Justice said, in relation to conviction cases –

"(ii) Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide … (iii) It will therefore rarely be appropriate for the court in the UK to consider whether a sentence was significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been".

11. The court in Celinski emphasised the importance of the judge in an Article 8 case listing the factors which militated in favour of, and against, extradition, and then setting out his reasons and his conclusion as to the balancing of those factors.

The District Judge's decision:

12. In the present case, the Appellant gave evidence that he had made no admission of guilt whilst detained in Lithuania, that at the end of that period of detention had believed the police enquiry was at an end, that he did not read the written commitment which he admittedly signed and that he did not know he could not leave his home address without permission. District Judge Snow did not believe that evidence: he could not accept that the Appellant would not have read such important documents. He concluded that the Appellant fled Lithuania knowing that he was to be prosecuted and knowing that he was required to remain at his home address. District Judge Snow therefore found that the Appellant was a fugitive, and not entitled to rely on the passage of time since his departure from Lithuania as a bar to extradition under section 14 of the Act.
13. As to section 21A, District Judge Snow accepted that the Appellant's Article 8 rights were engaged. He acknowledged that in this country the offence of which the Appellant is accused would not be regarded as serious, and that in this jurisdiction it is "inconceivable" that a custodial sentence would be imposed in the circumstances alleged. He also acknowledged that the Appellant was in employment and living with (though not supporting) his family. On the other hand, he observed, the appellant was a fugitive from justice and had not led a blameless life in this country because of his drunkenness offence and a further caution for being drunk. He noted in passing that the Appellant "also perverted the course of justice by giving a false name and date of birth to the police".
14. The District Judge then went on to say, at paragraph 22 of his judgment –

"The issue of the seriousness of the offence is a genuinely interesting one. The Republic of Lithuania clearly takes a more serious view of drugs offences than we do in this country. In assessing the relevance of that I have in mind dicta of Collins J in Polczynski v Poland [2013] EWHC 4059 (Admin) particularly at paragraph 7. I place particular reliance on the sentence: 'It is not for this country to impose its view on the seriousness of offending upon other countries. We have to accept the situation which is regarded as being material in that other country'."

15. The District Judge concluded that extradition would not be incompatible with the Appellant's Convention rights. He then went on to consider whether extradition would be disproportionate, having regard to the matters specified in section 21A(3). He assessed the seriousness of the alleged offence, which involved a small quantity of cannabis but travel from one area to another in order to supply that cannabis. As to the likely penalty on conviction, he noted that in Lithuania the offence of which the Appellant is accused carries a mandatory sentence of immediate imprisonment for at least two years. He repeated his view that if a man of previous good character were convicted in this country of a corresponding offence – that is, supply of a small amount of cannabis in circumstances not involving any financial gain – it would be extremely unlikely that an immediate custodial sentence would be imposed. He then continued, at paragraph 27 –

"I have therefore to ask myself whether this is an extremely rare case where the penalty would be offensive to a domestic court. In my judgment it is not.

28. It is well known that the misuse of drugs has very damaging consequences within different countries. Those countries must be at liberty to determine how in the light of their own domestic circumstances they should punish such conduct. It is not for this country to impose its views on the seriousness of offending upon another independent state."

16. Finally, the District Judge noted that the Appellant had not made any attempt to discharge the evidential burden of raising the possibility of less coercive measures, and observed that his fugitive status would weigh firmly against him in that regard. He therefore ordered extradition.

The appeal:

17. The principles to be applied on an appeal to this court under section 26 of the 2003 Act were made clear by Aikens LJ in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin): the correct approach is one of review. In the absence of fresh evidence, a challenge to the decision on proportionality will only succeed if the judge had misapplied relevant legal principles, or made a finding which no reasonable judge could have made, or took into account an irrelevant fact, or failed to take into account a relevant fact, or reached an overall conclusion that was perverse or irrational. In Celinski the court endorsed that approach but added that the court should apply the approach by using the analysis which Lord Neuberger made in his judgment in re B (a child) [2013] UKSC 33. At paragraph 24, the Lord Chief Justice emphasised that the single question for the appellate court is whether or not the District Judge made the wrong decision. Findings of fact must usually be respected, especially if evidence was heard. The District Judge's reasons for the proportionality decision must be considered with care, but the focus must be on whether the decision itself was wrong.
18. In the present case, there is no challenge to the District Judge's decision in relation to section 14 of the Act. The grounds of appeal are that in his application of section 21A, District Judge Snow erred in his finding that extradition would be compatible with the Appellant's Article 8 rights, and erred in his conclusion that the Lithuanian minimum sentence of 2 years' imprisonment was not offensive to a domestic court, even though the offence was not serious and a custodial sentence would have been unlikely in the United Kingdom. In the light of additional information received from Lithuania, a further ground of appeal which had initially been advanced is – rightly - no longer pursued.

The submissions of the parties:

19. I am grateful to both counsel for the clarity of their submissions.
20. For the Appellant, Mr Seifert relied on the Appellant's generally high standard of behaviour whilst in the UK, and on the efforts he has made to learn English, and obtain qualifications. He submitted that the District Judge wrongly rejected the Appellant's evidence that he believed the Lithuanian police investigation had ended, gave undue emphasis to his finding that the Appellant had perverted the course of justice in this country by giving false details when drunk, and wrongly allowed his views to be coloured by those matters. The main focus of his submissions, however, was his attack upon the decision of the District Judge that the penalty upon conviction in Lithuania should not be regarded as offensive to the courts of this country.
21. In this regard, Mr Seifert invited the court's attention to paragraph 17 of the Criminal Practice Direction. At paragraph 17A.5 there is a table of categories of minor offence, the last of which is possession, for personal use, of a controlled substance other than those such as heroin, cocaine, LSD or crystal meth which have a high capacity for harm. With reference to that table, paragraphs 17A.3 and 17A.4 provide as follows –

"17A.3 In any case where the conduct alleged to constitute the offence falls into one of the categories in the table at 17A.5 below, unless there are exceptional circumstances, the judge should generally determine that extradition would be disproportionate. It would follow under the terms of s. 21A (4) (b) of the Act that the judge must order the person's discharge.

17A.4 The exceptional circumstances referred to above in 17A.3 will include:

i.Vulnerable victim

ii. Crime committed against someone because of their disability, gender-identity, race, religion or belief, or sexual orientation

iii. Significant premeditation

iv. Multiple counts

v. Extradition also sought for another offence

vi. Previous offending history."

22. Mr Seifert relies on what was said about that Practice Direction by Pitchford LJ in his judgment in Miraszewski. At paragraph 28, Pitchford LJ accepted a submission that the Practice Direction should be regarded as identifying a floor rather than a ceiling for the assessment of seriousness. He added that a judge applying the statutory criteria of proportionality was not limited by the categories listed in the Practice Direction, and might conclude that an offence was not serious even though it was not included in those categories. He then went on, in later paragraphs, to say –

"Subsection (3)(a) – seriousness of the conduct alleged

36 … Section 21A(3)(a) requires consideration of "the seriousness of the conduct alleged to constitute the extradition offence". I agree that, as Mr Fitzgerald QC argued, paragraphs (a), (b) and (c) of subsection (3) all assume an approximate parity between criminal justice regimes in member states that embrace the principles of Articles 3, 5 and 6 of the ECHR and Article 49(3) of the Charter of Fundamental Rights of the European Union. In my view, the seriousness of conduct alleged to constitute the offence is to be judged, in the first instance, against domestic standards although, as in all cases of extradition, the court will respect the views of the requesting state if they are offered. I accept Mr Summers QC's submission that the maximum penalty for the offence is a relevant consideration but it is of limited assistance because it is the seriousness of the requested person's conduct that must be assessed. Mr Fitzgerald QC's identification of 7 years imprisonment as the maximum sentence for theft in England and Wales makes the point. Some offences of theft are trivial (see the Lord Chief Justice's Guidance); others are not. In my view, the main components of the seriousness of conduct are the nature and quality of the acts alleged, the requested person's culpability for those acts and the harm caused to the victim. I would not expect a judge to adjourn to seek the requesting state's views on the subject.

Section 21A(3)(b) – the likely penalty on conviction

37 Section 21A(3)(b) requires consideration of "the likely penalty that would be imposed if D was found guilty of the extradition offence". Since what is being measured is the proportionality of a decision to extradite the requested person under compulsion of arrest, I consider that the principal focus of subsection (3)(b) is on the question whether it would be proportionate to order the extradition of a person who is not likely to receive a custodial sentence in the requesting state. The foundation stone for the Framework Decision is mutual respect and trust between member states. The courts of England and Wales do not treat as objectionable the possibility that sentence in the requesting state may be more severe than it would be in the UK. Raised in the course of argument was the case of a member state that imposed minimum terms of imprisonment for certain offences by reason of the particular exigencies of the crime in the territory of that state. Appropriate respect for the sentencing regime of a member state is required under subsection (3)(b); the UK has itself imposed minimum terms of custody as a matter of policy. However, in the extremely rare case when a particular penalty would be offensive to a domestic court in the circumstances of particular criminal conduct, it is in my view within the power of the judge to adjust the weight to be given to "the likely penalty" as a factor in the judgement of proportionality. "

23. As an example of that rare category of case, Mr Seifert points to the decision of Ouseley J in Miglans v Prosecutor General of the Republic of Latvia [2014] EWHC 2659 (Admin). The relevant law of Latvia provided for a minimum sentence of 5 years' imprisonment for simple possession of a controlled drug. Mr Miglans, a drug addict, was wanted for prosecution for possession of 0.22 grams of cannabis and a small quantity of a substance containing 0.017 grams of heroin. The learned judge was satisfied that extradition would not breach Mr Miglans' Article 8 rights if conviction would be followed by a proportionate sentence, making full allowance for the range which other countries may see as appropriate. But, he continued, for possession of such tiny amounts of drugs as were found in that case, it was impossible to say that a minimum 5-year sentence was proportionate:

"It is simply so disproportionate that extradition to face trial for that offence, risking conviction as the prosecutor must intend, and the certainty on conviction of such a sentence, would be disproportionate."

24. Mr Seifert submits that the District Judge should have reached a similar conclusion in the present case. He notes that if the alleged offence were simple possession rather than supply, it would be included in the table in the Practice Direction. Although it was an alleged supply, he submits, it was a supply which had no commercial element and was not significantly more serious than personal use. He argues that District Judge Snow, having assessed a custodial sentence as "very unlikely" or "inconceivable" in this country, gave no reasons for his conclusion that the penalty in Lithuania would not be offensive to the courts of this country, and submits that he should have reached the contrary conclusion. He points out that the Appellant has already spent some 14 days in custody immediately following his arrest in this country, in relation to an offence for which he would not be imprisoned if convicted in this country. He submits that the decision to order extradition was unreasonable and wrong.
25. For the respondent, Mr Gibbins argues that the District Judge properly identified the factors which militated in favour of and against extradition, and in effect adopted the "balance sheet" approach which was advocated some months later by the court in Celinski. He submits that the District Judge properly balanced the competing considerations, was in the best position to assess the Appellant's credibility, made justified findings in that regard, and reached conclusions which cannot be impugned. He notes that the offence of supplying a controlled drug is not one of those listed in the table to which I have referred, and submits that is precisely because supply of a controlled drug is rightly regarded as more serious than mere possession. Although the quantity of cannabis is small, he submits that the alleged offence was committed by a mature adult and involved significant premeditation because of the travel between towns. He submits that District Judge Snow rightly considered whether this was an extremely rare case where the penalty would be offensive to the courts of this country, and rightly concluded that it was not for the reason which he gave in paragraph 28 of his judgment (quoted above at paragraph 15).
26. Mr Gibbins points out that Ouseley J's decision in Miglans predates the coming into force of section 21A and predates the decision in Celinski. In any event, he submits, Miglans can readily be distinguished from the present case, because in Miglans there was a much longer minimum sentence for a less serious type of offence. Mr Gibbins submits that the words of the Lord Chief Justice at paragraph 13(ii) of his judgment in Celinski, though referring specifically to conviction cases, indicate that the courts in this jurisdiction should respect an ECHR-compliant sentencing regime in another country. In this regard, Mr Gibbins emphasises the need for mutual respect between different jurisdictions. He submits that the Lithuanian legislature must be presumed to have taken account of the situation prevailing in that country so far as drug supply is concerned. He notes that there is no evidence that the Lithuanian legislature acted irrationally, and no suggestion that their sentencing regime has been challenged in the European Court of Human Rights. He therefore invites this court to dismiss this appeal.

My conclusions:

27. The Appellant's Article 8 rights are plainly engaged. He has made a life for himself in this country, together with his family.
28. I reject the challenge to the District Judge's findings of fact. Having heard the evidence of the Appellant, he was entitled to disbelieve important aspects of that evidence. It is no doubt correct, as Mr Seifert submits, that other findings were open to the District Judge; but he cannot successfully be criticised for making the findings that he did.
29. I also reject the criticism that the District Judge was wrong to find that the Appellant had tried to pervert the course of justice, and/or that he gave undue weight to that finding. The giving of false details cannot sensibly be regarded as a mistake. The District Judge might have treated it as a drunken error of judgment, but he was entitled (particularly bearing in mind the Appellant's fugitive status) to conclude that it was a short-lived attempt by the Appellant to pass himself off as someone else in the hope that the police would not realise he faced prosecution in Lithuania. In any event, it seems to me that the District Judge made this finding in the context of considering whether the Appellant could be said to have lived a blameless life in this country. In that context, he gave appropriate and not unfair weight to it.
30. More generally, the District Judge in my view correctly identified all relevant factors, with one possible exception. He did not specifically mention the fact that the Appellant has already spent some 7 days in custody in this country. That point, however, is merely made by way of emphasis of the Appellant's principal argument that it would be disproportionate to extradite him to face the risk of a minimum two-year sentence. The District Judge's failure to mention it therefore does not undermine his overall conclusions.
31. I accept that the Appellant has led a largely law-abiding life in this country and has done much to better himself. But he has done so as a fugitive from Lithuanian justice, knowing that he was wanted for prosecution. I have rejected the criticisms of the District Judge's judgment as unfounded; but in any event – as Celinski makes clear - the focus must be on whether his decision was wrong.
32. The real thrust of the Appellant's case, both in relation to his Convention rights and in relation to proportionality, relates to the penalty which will be imposed if he is extradited and convicted of the alleged offence. He faces the prospect of being deprived of his liberty for 2 years, a much more substantial interference with his private and family life than would be regarded as appropriate for a comparable offence in this country. Although section 21A(1) requires the court to consider two separate questions, there is in my view a substantial overlap between them in this regard.
33. Mr Seifert put forward the Appellant's submissions very persuasively. It cannot however be said that extradition in this case would be incompatible with the Appellant's Article 8 rights, and/or disproportionate, merely because a comparable offence in this country would not result in a custodial sentence. It is essential to bear in mind the words of the Lord Chief Justice in the passage in Celinski which I have cited in paragraph 10 above.
34. In deciding whether extradition would be disproportionate, section 21A(3) required the District Judge to consider both (a) the seriousness of the alleged conduct, and (b) the likely penalty if convicted in Lithuania. As to the former, he correctly identified that the culpability of the alleged conduct was high, because of the travel which was involved, but the harm was low, because of the small quantity of cannabis and absence of any commercial element. He was aware of the seriousness with which Lithuania regards offences involving the supply of controlled drugs, and he was right to accord respect to that view: see the passages cited from Polczynski (at paragraph 14 above) and Miraszewski (at paragraph 22 above).
35. As to the latter, it is necessary to keep in mind that this is not a case in which it is said that extradition is disproportionate because the likely penalty will be minor: it is the opposite situation. Certainly the Lithuanian minimum sentence is by UK standards a heavy one in circumstances such as are alleged here; but appropriate respect must be accorded to the view taken in another member state of the seriousness of a particular type of offending and of the appropriate level of punishment under the sentencing regime of that state. Drug supply is a type of offending which can be very damaging to society, and it is understandable that the Lithuanian legislature has chosen to deter such offending by prescribing a minimum sentence. I accept Mr Gibbins' submission that the Lithuanian legislature must be presumed to have taken account of the situation prevailing in that country. Miglans can and in my view should be distinguished because in that case a much heavier minimum sentence was imposed for offences of simple possession.
36. In Miraszewski, Pitchford LJ said that cases in which a particular penalty would be offensive to a domestic court in the circumstances of particular criminal conduct would be "extremely rare". In my judgment, District Judge Snow was entitled to conclude that this case does not come within that rare category. Indeed, far from being open to challenge, it seems to me that the decision which he made on that point in February 2015 was consistent with the principles enunciated some weeks later by the Lord Chief Justice in Celinski.
37. District Judge Snow concluded that extradition would not be incompatible with the Appellant's Convention rights and would not be disproportionate. In my judgment, it is impossible to say that either of those conclusions was wrong. He was entitled to reach them, and on balance I consider him right to have done so.
38. For those reasons, I conclude that this appeal fails and must be dismissed. The extradition of the Appellant to Lithuania must proceed accordingly. Neither party sought any further or consequential order, and none is made.