England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		7th December 2015

MR JUSTICE MITTING:

1. The extradition of the appellant is sought on an accusation European Arrest Warrant, said to have been issued on 7^th June 2010, but in fact issued on an unknown date in 2013 by a magistrate of the Court in Figueres, Spain, for the purpose of conducting a criminal prosecution against him for one offence of trafficking of 2.88 tons of hashish from Malaga to Gerona between 15^th and 21^st June 2007. The warrant replaced at least one earlier warrant, the first of which was issued on 7^th November 2007.
2. On 15^th December 2014, as District Judge Rose found, after the first hearing in this by now lengthy set of proceedings, the requesting Judicial Authority had made at least seven, and possibly as many as ten, attempts to put a European Arrest Warrant into a form which SOCA (then) and the NCA (now) would be willing to certify. Eventually, the NCA did so on 15^th October 2013. The appellant was arrested on 17^th October. After a contested extradition hearing, District Judge Rose discharged him under section 14 of the Extradition Act 2003 on the ground that it would be oppressive to extradite him due to the passage of time.
3. The requesting Judicial Authority appealed under section 28 of the 2003 Act to the Divisional Court. In a judgment given on 25^th February 2015, Aikens LJ, with whom Popplewell J agreed, allowed the appeal and remitted the case to the District Judge: see [2015] EWHC 981 (Admin).
4. After a further hearing, District Judge Rose ordered the extradition of the appellant on 26^th August 2016. The appellant appeals against that decision on two grounds: first, that the District Judge should have found that it was oppressive by reason of the passage of time to extradite him and should again have discharged him under section 14; and second, that she should have found that his extradition would contravene his right to respect for his and his family's right to private and family life under article 8 of the European Convention on Human Rights and/or would be disproportionate, and so should have ordered his discharge under section 21A of the Act.
5. As to the first ground of appeal, it is necessary to understand what the Divisional Court was empowered to do by section 29 of the Act, and what it did do.
6. The relevant parts of section 29 are as follows:

"29. Court's powers on appeal under section 28

(1) On an appeal under section 28 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 judge ought to have decided the relevant questions differently;

(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.

...

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

(a) quash the order discharging the person;

(b) remit the case to the judge;

(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing."

7. The relevant question was whether or not it was oppressive by reason of the passage of time to extradite the appellant. The Divisional Court decided, for the reasons which Aikens LJ gave at [26] to [31] of his judgment, that the District Judge should have decided that question differently. The court therefore ordered her to proceed as if she had done so. If she had done so, she would not have ordered the appellant's discharge under section 14.
8. The order made by the Divisional Court reflected precisely the statutory wording of section 29(5)(c) and directed District Judge Rose to proceed as she would have been required to do if she had decided the relevant question differently at the extradition hearing.
9. At the remitted hearing District Judge Rose considered that she should consider further evidence about the circumstances of the appellant and his family since the first extradition hearing for the purpose of re-determining the section 14 issue. She should not have done so. That evidence was admissible to inform her decision on the remaining undecided issue, whether or not extradition would infringe the right of the appellant and his family to respect for their private and family life and/or be disproportionate. But she should not have entertained any further argument or evidence on the section 14 issue.
10. In the event, having, for reasons which I will briefly explain, misdirected herself as to what her task was, the District Judge decided that the new evidence did not cause her to conclude that extradition would be oppressive by reason of the passage of time, so that the issue was, in fact, academic.
11. The reason why the District Judge should not have gone on to consider the circumstances that had arisen since the judgment of the Divisional Court can be simply stated. The question for the Divisional Court was a binary one: should she have decided that it was oppressive by reason of the passage of time to extradite the appellant? If her decision on that issue was sustainable, then the appeal had to be dismissed; if it was not, then the statute required that it be remitted to her, but remitted for the purpose set out in section 29(5)(c), and for that purpose only. The wording of section 29(5)(c) is unequivocal. The court was required to – "must" – direct the District Judge to proceed as she would have been required to do if she decided the relevant question – the question which arises under section 14 – differently. If she had decided that question differently, she would not have ordered discharge under section 14. She should, therefore, have proceeded to consider the remaining issues. It was those issues, as yet undecided, which were required by the judgment of the Divisional Court to be decided by her.
12. The original question was resolved by the Divisional Court. Single Judges and Divisional Courts hearing appeals on questions such as this sometimes wish that where a district judge has made an error of law, as the District Judge was adjudged to have made in this case, the error of law could be corrected and the issue remitted to a district judge to decide afresh. But that course is not open to the Divisional Court or to a Single Judge as an appellate court. Its function is binary: to allow or dismiss the appeal; and if it allows it, to remit for one purpose only.
13. Accordingly, and despite the fact that it makes no difference to the outcome, it is important that it should be stated for the purpose of clarity hereafter, that what the District Judge in this case was incorrect. She should simply have proceeded as if the section 14 issue was decided against the appellant, and should have declined to hear any further argument or evidence directed to that issue.
14. The second ground of appeal is well-trodden. The two determinative cases which must bind the approach of the court are HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, and Celinski v Slovakian Judicial Authority [2015] EWHC 1274 (Admin). Since Celinski, which directed that district judges should deal with article 8 challenges by conducting a balancing exercise in which they set out expressly the factors favouring and the factors against extradition, it has been, I believe, the universal practice of district judges to follow that guidance. District Judge Rose did so. Having cited Celinski, she set out the factors favouring extradition. They were: the public interest in ensuring that extradition arrangements are honoured – and that interest is very high; that the decisions of a Judicial Authority of a Member State making a request should be afforded proper respect in the light of the obligation of mutual confidence and respect; the serious nature of the allegation against the appellant, who faces a sentence, if convicted, of between three and nine years' imprisonment; and the fact, as she found, that he had never been led to believe that there would be no prosecution.
15. Against those factors were, as the District Judge found, the long delay in the conduct of these proceedings. She expressly reminded herself that that delay may both diminish the weight to be attached to the public interest, and increase the impact on private and family life. In considering the proportionality balance, she set out that there had been inefficiency and incompetence on the part of the requesting Judicial Authority, but no bad faith. She analysed in some detail the private and family life of the appellant. She noted that he was the father of two children, each now living with their mother, and that he had taken on the role of a stepfather to his partner's older daughter. She noted that his relationship with his fiancée had suffered as a result of the proceedings, to the extent that they were now living apart; and that extradition would inevitably be emotionally distressing for all members of this family. She accepted that there would be hardship for all concerned. She also accepted that the appellant suffered from emotional and medical problems which were being treated; and, finally, that he was not a fugitive. She balanced those factors on the one side against those on the other and expressed her conclusion in these words:

"Extradition will inevitably amount to an interference with Mr Warne's right to a private and family life. The additional evidence about his personal circumstances does not alter the conclusion that they are not unusual in the context of extradition cases. Unlike many in his position, his family is not financially dependent upon him. The principal argument advanced on his behalf is that the way in which the Spanish authorities have conducted these proceedings and the consequent delay should 'tip the balance' in his favour by 'diluting' the legitimate public interest in extradition, despite the serious nature of the allegation against Mr Warne. That delay has had a considerable impact on Mr Warne and his family. It is however my assessment that these factors cannot outweigh the factors in favour of extradition when he faces such a grave allegation in Spain. I have concluded that extradition would not be a disproportionate interference with Mr Warne's Article 8 rights."

16. The District Judge went on to consider the statutory proportionality balance and took into account one of the factors mentioned expressly: "the seriousness of the conduct alleged to constitute the extradition offence". Finally, she concluded that there were no less coercive measures available, other than extradition.
17. Despite Miss Lindfield's valiant efforts, I am satisfied that that was an impeccable balancing exercise as required by Celinski, and that the conclusion of the District Judge, far from being wrong, was right. Even if I had not reached that conclusion, it was one to which she was plainly entitled to come.
18. Miss Lindfield's core criticism is that the District Judge did not give proper weight to the delay and incompetence shown by the requesting Judicial Authority. I am simply unable to accept that District Judge Rose did not have that submission firmly in mind and did not give it proper weight. She expressly cited the passage from Baroness Hale's judgment in HH when considering factors against extradition. It is not necessary that a judgment of a district judge should set that out in terms in the passage dealing with the public interest in upholding extradition arrangements and the United Kingdom's obligations under them. Provided that it is properly taken into account where it arises, as it does here, it does not matter precisely where in the judgment that factor is taken into account.
19. The District Judge reached, to my mind, plainly the right conclusion: that because this was a very serious offence the public interest required the United Kingdom to extradite the appellant to Spain to face trial.
20. For those reasons I dismiss this appeal.
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