England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		27 February 2015

1. MR JUSTICE MALES: This is an appeal pursuant to Part 1 of the Extradition Act 2003 from the order of District Judge Zani dated 12 November 2014 that the appellant, Evaldas Toleikis be extradited to Lithuania to face prosecution for four offences concerned with the possession and supply or attempted supply of cannabis. Although the challenge to the European Arrest Warrant below and in the appellant's grounds of appeal was advanced on a number of grounds, only two issues have been argued before us. There are, first, that extradition would constitute a disproportionate interference with the appellant's family life and that of his partner and child, contrary to article 8 of the European Convention on Human Rights; and second, that extradition would be disproportionate within the meaning of section 21A of the 2003 Act, inserted into the Act by section 157 of the Anti-social Behaviour, Crime and Policing Act 2014.

The offences charged.

2. The offences with which the appellant is charged are as follows.
3. The first occurred on 20 August 2009 when the appellant is alleged to have purchased three packets, each containing one gram of cannabis resin, for the purpose of selling them. He paid 35 litas for each packet. On the following day he smoked two packets himself and sold or attempted to sell the third packet, containing 0.823 grams, to an undercover test purchase officer for 40 litas (equivalent to about £10). This gives rise to a charge of attempt to commit a criminal act, namely the unlawful supply of drugs, contrary to Article 22 paragraph 1 and Article 260 paragraph 1 of the Lithuanian Criminal Code.
4. The second offence occurred on 30 September 2009. It relates to a single packet, containing 0.35 grams, which the appellant purchased for sale to an undercover test purchase officer for a price of 40 litas.
5. The third offence occurred between 7 and 10 November 2009 when the appellant purchased 5 grams of cannabis for which he paid 165 litas (equivalent to just over £40). He smoked 2 grams himself and supplied the remainder to a man called Arturas Zageras. This gives rise to a charge of unlawful supply, contrary to Article 260 paragraph 1.
6. The final offence concerns a purchase of cannabis on 10 November which the appellant is alleged to have transported from the house of Arturas Zageras to a school elsewhere in the town and then back to the house, where he is alleged to have thrown away a small amount of cannabis which he had on him when detained by police officers. This gives rise to a charge of unlawful possession not for the purpose of selling or distribution, contrary to Article 259 paragraph 2 of the Criminal Code.
7. The appellant's evidence is that he purchased the cannabis which is the subject of the first charge for his own use, but was persuaded by the test purchase officer to sell him the remaining packet which he had not smoked; that he was pressed by the test purchase officer to purchase for him the cannabis which is the subject of the second charge; that he made these supplies only because he was induced to do so by the officer; and that he purchased the cannabis which is the subject of the third and fourth charges for his own personal use, although he shared some of it with his friend, Arturas Zageras.

The proceedings

8. The appellant was arrested for these offences in Lithuania on 10 November 2009 and was detained for two days. On 12 November 2009 he was released on bail, subject to conditions. These required him to report to a local police station twice a week and not to leave Lithuania.
9. On 4 February 2010 the appellant was summoned to his trial, the pre-trial investigation having concluded. He received the summons, which he signed. The trial was to take place on 24 February 2010. As already mentioned, he was required to report to the police station as part of his bail package. The last occasion on which he did so was 15 February 2010.
10. Instead of remaining in Lithuania to face trial, as he was required to do, the appellant came to this country on 18 or 19 February 2010. He did not notify the Lithuanian authorities of his whereabouts and they only learned that he was here on 23 May 2011. The extradition process was initiated promptly thereafter, on 25 July 2011, although it took some time to locate the appellant within the United Kingdom. He was eventually arrested on 23 July 2014. Since then he has been subject to a nine-hour qualifying curfew, that is to say a curfew which (if he were being sentenced here) would mean that each two days under curfew would count as one day in custody for the purpose of section 240A of the Criminal Justice Act 2003.

The appellant's circumstances

11. On arrival in this country in February 2010 the appellant went to Bristol, where he had previously lived between 2005 and 2007, looking for work. He obtained work in a tannery in April 2010 and has worked there ever since. He earns approximately £1,200 per calendar month in the summer months and £1,000 per month in the winter months, depending on the volume of orders received. He has a partner, a Lithuanian national Indre Zvilauskaite, with whom he has been in a relationship for some eight or nine years, who moved to join him in this country in the summer of 2010. They have a son, A, who is now two years old. The appellant's partner initially worked in a hotel and then a factory, but stopped working when their son was born in order to care for him. The family is supported financially by the appellant's wages, together with child benefit, child tax credit and working tax credit. While the appellant's partner is the primary carer for A, the appellant plays his part in parenting him when he is not working. Both the appellant and his partner say that the appellant has a close bond with A.

Article 8 in extradition cases involving children.

12. The application of article 8 to extradition cases where the rights of children are concerned was considered by the Supreme Court in R (HH) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338. Lady Hale summarised the existing law, as explained in Norris v Government of the United States of America (No2) [2010] UKSC 9, [2010] 2 AC 487, at [8]:

"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."

13. Norris was a case which did not involve children's article 8 rights. Lady Hale went on to explain that extradition cases did not require a "radically different" approach from expulsion cases, albeit that one of the factors applicable in extradition cases will be the mutual obligations owed between states to return those charged with criminal offences where this does not contravene fundamental rights, and that "the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued" by extradition, and not whether the circumstances of the case are exceptional. She dealt further with the way in which the particular interests of children should be addressed at [33].
14. Lord Judge CJ pointed out at [121] to [124] that extradition cases involve obligations undertaken by states to promote international co-operation for the prosecution of crimes and the removal of safe havens for those suspected of having committed such crimes. These are themselves weighty considerations. It may be, therefore, that the same facts (so far as the welfare and interests of children are concerned) may produce a different outcome in an extradition case from that which would occur in an expulsion case. However, the fact that it would only be in an exceptional case that the interests of a dependent child not to be separated from its parent would prevail over the factors in favour of extradition, at any rate in the case of serious criminality where separation is likely to be long term, did not mean that the test was whether the circumstances were exceptional:

"In the end, however, the issue remains proportionality in the particular circumstances in which the extradition decision has to be made when the interests of dependent children are simultaneously engaged."

15. In considering this question it is relevant to consider the sentence which our own courts would be likely to impose for the conduct in question. Lord Judge explained this at [132]. Having emphasised the importance of compliance with international obligations in the field of extradition and the impact of extradition on a requested person's family members, he continued:

"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)."

The judgment below.

16. District Judge Zani recognised that each case has to be considered on a fact-specific basis and that it is necessary to weigh the requested person's Article 8 rights (and those of his partner and any dependent children) against the public interest of the United Kingdom abiding by its Convention obligations in respect of properly made extradition requests. He considered that the balance came down in favour of extradition:

"50. With regard to the Article 8 and overlapping s.21A challenges, I note that ET had already spent 2 days in police custody in Lithuania, prior to his release. I bear in mind that he is a man of good character who is in regular employment and enjoys a settled family life in the UK. I am also aware that he has abided by a qualifying curfew in the UK since his release on conditional bail after his first court appearance on 23rd July 2014.

51. However, I regard the offences that he faces as serious. In my view - having considered the current Sentencing Guidelines - were they to have been the subject of proceedings in the UK, a series of four offences of possession of Cannabis/Hemp with intent to supply may well result in a custodial sentence of some length.

52. I have given very careful consideration to the proportionality argument forcefully promoted by Mr Cooper alongside his Article 8 simpliciter argument but having carried out the balancing exercise I find that the scales are weighed considerably in favour of this court ordering extradition. I am satisfied (per s.21A) that it is proportionate to order the return of ET and that it is also compatible with his Human Rights (and separately the Article 8 rights not only of ET but also of his partner and child).

53. I appreciate that there will be hardship caused to ET, his partner and child, but hardship is not enough to defeat extradition. This is not a sole carer case albeit ET is the main breadwinner, his partner received child benefits for their son and no difficulty has been brought to my attention in her seeking other State benefits in the event of ET returning to Lithuania. I take into account that neither ET nor his partner has any family in the UK that would be able to assist, although Ms Zvilauskaite does have some family members in Lithuania."

17. It can be seen, therefore, that the District Judge's view was significantly influenced by his view of the seriousness of the offences and the likelihood that, if sentenced for those offences in this country, the result might well be "a custodial sentence of some length".

The approach on appeal.

18. Whether extradition would be proportionate for the purposes of article 8 involves a value judgment in which a number of considerations have to be balanced. As held in Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin) at [66] the approach of this court on appeal will be one of "review". This court will not interfere with the value judgment of the District Judge merely because it takes a different overall view, or because it takes a different view of the weight to be attached to one or more of the factors taken into account in reaching that overall judgment. It will in general only interfere if:

"the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse."

19. In the present case the District Judge was right to assess the seriousness of the appellant's offending by reference to the likely sentence which would be imposed in this country for such offending, but as I shall explain, the conclusion which he reached about this was clearly wrong. As the nature and seriousness of the offences are always important factors, that error vitiates the District Judge's overall conclusion. It requires us to reconsider for ourselves the Article 8 value judgment which should be reached in the circumstances of this case.

The likely sentence in this country

20. There is no evidence of the likely sentence which the appellant would receive if convicted of these offences in Lithuania, although it appears that the maximum sentence would be one of eight years. However, I would respectfully disagree with the view of the District Judge that a lengthy custodial sentence would be imposed in this country. In the terms of the Sentencing Council Guidelines for Drug Offences, the supply offences with which the appellant is charged appear to fall at worst within category 3 (on the basis that the two sales to the test purchase officers constitute street dealing) and the appellant can be regarded as having played a lesser role. These were, so far as the evidence before us goes, two isolated occasions on which a user of cannabis buying for his own personal use was prevailed upon to sell to a man whom he understood to be a fellow user. There is no evidence of any other dealing by the appellant. The quantities involved were very small. He made little or no profit from these two sales. The third offence consisted of no more than sharing with a friend cannabis which he had purchased for his own use, while the fourth is one of simple possession.
21. In these circumstances the Sentencing Council Guidelines prescribe at worst a sentence range of between a low level community order and 26 weeks' custody, with a starting point of a high level community order (not 18 months custody as Ms Hannah Hinton initially submitted on behalf of the respondent: that is the starting point for the equivalent category of Class A drugs, but the relevant guideline here is that for Class B). Bearing in mind the minimal quantities involved and the appellant's good character, it seems to me most unlikely that an immediate custodial sentence would be imposed for these offences in this country.
22. As Lord Judge made clear at [132] of his judgment in HH quoted above, the mere fact that a sentencing court here would not order immediate custody does not mean that extradition should be refused, but it is a relevant and important factor in considering the Article 8 balance, at any rate where there is no evidence of the likely sentence which the appellant would receive in the requesting state, and particularly where the rights of the child have to be weighed.

Qualifying curfew

23. A question arises whether, and if so to what extent, it is relevant also that the appellant has been subject to a qualifying curfew and electronic tagging for a period of seven months which, if he were being sentenced here, would be treated as equivalent to three and a half months in custody for the purpose of section 240A of the Criminal Justice Act 2003. This would mean that if he were to be sentenced here to as much as seven months in custody (or in other words, if he were to receive a sentence even more severe than the 26 weeks which represents the top of the relevant sentencing range), he would be entitled to immediate release. There is no evidence whether this time would be counted against any sentence which the appellant might receive in Lithuania or would be taken into account in any other way, and in any case we must not assume that the courts in Lithuania take the same approach to sentencing in drugs cases as that set out in the Sentencing Council Guidelines here. However, there are several cases in which judges have treated time spent on curfew as at least a relevant factor in assessing proportionality for the purpose of Article 8, even in the absence of evidence as to how that would affect the position in the requesting court: e.g R(Goman) v District Court Lublin, Poland [2013] EWHC 3606 (Admin); Czeslaw Pamula v Regional Court in Tarnow, Poland [2014] EWHC 3693 (Admin); and Mika v Judicial Authority of Poland [2015] EWHC 145 (Admin).
24. I would respectfully agree that time served on curfew may in some circumstances be a relevant factor, but would emphasise that it is only a factor and that its weight will depend on all the circumstances of a particular case (Tyza v Circuit Court in Wroclaw, Poland (Divisional Court, 26 February 2015)). It should certainly not be applied mechanistically by treating the requested person as having served the time for which he would be given credit if section 240A of the Criminal Justice Act 2003 applied. The analogy with that section is far from perfect. For example, a requested person will often be made subject to a curfew precisely because he has already absconded and is resisting extradition. In short, he is a flight risk and has brought the curfew on himself. Moreover, while Article 26 of the European Framework Decision provides that time spent in detention must be counted against the sentence imposed by the requesting court in a conviction case, there is no corresponding provision relating to time spent subject to curfew. When a requested person is subject to a curfew because he is a fugitive from justice, the existence of a qualifying curfew will not generally be a strong factor against extradition.

The Article 8 balance

25. I turn, therefore, to the Article 8 balance in the circumstances of the present case.
26. I accept that extradition of the appellant would be detrimental to the Article 8 interests of his child, and that this must be a primary consideration. If A and his mother remained in this country while the appellant is extradited, there would be a period of separation of uncertain length (depending on how quickly the appellant could be dealt with in Lithuania and what sentence was imposed in the event of conviction) which would no doubt be painful for them and which would deprive A of his father's emotional and financial support at an important period in his development. On the other hand, the appellant is not the sole or even the primary carer even though he is the main breadwinner. A would therefore continue to enjoy a loving and supportive relationship with his mother. There is no evidence of any particular damage which would be done to A by a period of separation over and above the loss which every young child must experience from the absence for an uncertain period of a loving father. The family would lose the appellant's financial support but, if they stay in this country, will receive state benefits, at any rate until A is old enough to attend nursery school so that his mother can go out to work.
27. It must on the evidence be an open question whether, in the event that extradition of the appellant is ordered, his partner and A will remain in this country. The appellant's partner says herself that she does not know what she would do. She came to this country specifically to join the appellant. Having done so, she returned to Lithuania from time to time to complete her studies until these were concluded in 2011. Neither she nor the appellant has any family here. They both have family members in Lithuania. Although she says that she has friends here, they are apparently not sufficiently close that she could look to them for support. It may well be, therefore, that the appellant would return to Lithuania, in which case it would in all likelihood be easier for her and A to maintain at least some contact with the appellant.
28. In these circumstances, although recognising that a degree of hardship will be sustained, I do not regard the Article 8 rights of the appellant's child as carrying overwhelming weight. Moreover, the fact that the appellant came to this country in deliberate breach of his bail and contrary to a written pledge not to leave Lithuania when he was aware of the date set for his trial (a finding of the District Judge which is not challenged on appeal) is a significant consideration in support of extradition.
29. On the other hand, the offences with which the appellant is charged are at or very near the bottom of the range for offences involving the supply of illegal drugs and it is most unlikely, as I have concluded, that the courts here would impose a sentence of immediate custody. The appellant is otherwise of good character and has lived a responsible life since he came to this country, working hard to support his family. Although the appellant as an absconder is responsible for much of the passage of times since these relatively minor offences were committed, the fact is that they were committed over five years ago and have not been repeated. Moreover, although this is not a factor of great weight, the qualifying curfew is at any rate a factor which should go into the overall balance.
30. As the judgments in HH make clear, the importance of extradition is always a factor, but the weight to be attached to it will vary according to the nature and seriousness of the crimes involved. While I would not wish to say anything to imply that dealing in controlled drugs is not a serious matter, that weight must be regarded as towards the lower end of the scale in the present case.
31. Taking all these matters into account, and applying the guidance in HH, I conclude on balance that this is one of those rare cases where the interference with the child's family life, particularly given the need to lay primary consideration on the position of the young child, outweighs the public interest in the extradition of the appellant to Lithuania. In particular, on the facts of this case the relative lack of seriousness of the offence with which the appellant is charged and the likely sentence which would be imposed here are the decisive considerations, with the consequence that the weight to be attached to the importance of extradition is much less than will usually be the case. I consider in these circumstances that it would be disproportionate within the meaning of Article 8 for the judge's order to stand.

Section 21A proportionality.

32. This conclusion means that it is unnecessary to say much about the issue of proportionality under section 21A of the Extradition Act 2003. Proportionality for the purpose of this section is to be determined exclusively by reference to the seriousness of the conduct alleged, the likely penalty that would be imposed and the possibility of the relevant foreign authorities taking measures that would be less coercive than extradition.
33. Miraszewski v District Court in Torun, Poland [2014] EWHC 4261 (Admin) makes clear at paragraphs 28 and 29 that this is an issue which requires separate consideration from factors which are relevant to Article 8, although there will be an overlap between then. It determines also that the guidance given by the Lord Chief Justice under section 2(7A) of the Extradition Act 2003 by means of the Criminal Practice Directions Amendment No.2 [2014] EWCA Crim 1569 represents "a floor rather than a ceiling for the assessment of seriousness". That guidance identifies certain categories of offending, including possession of very small quantities of Class B drugs intended for personal use, which in the absence of exceptional circumstances will generally mean that extradition will be disproportionate. As the guidance represents a floor, I would not accept that extradition for drug offences which involve an element of supply (as the present case does) can never be disproportionate within the meaning of section 21A. No doubt such cases will be rare, but it remains necessary to apply the statutory tests.
34. In the present case I have concluded that the offences are not particularly serious when judged against the overall spectrum of possible criminality and would not attract a custodial sentence in this country, but we do not know what sentence would be likely to be imposed in Lithuania where it is possible that a different approach may be taken. There is no reason to suppose that the Lithuanian authorities may take any measures less coercive than extradition. There is, therefore, very little material on which to make an assessment of proportionality for the purpose of section 21A and, in view of my conclusion on Article 8, it is unnecessary to do so.

Conclusion

35. I would allow the appeal and order the appellant's discharge.
36. LORD JUSTICE AIKENS: I agree. I have no doubt that the District Judge clearly erred in characterising these four extradition offences as "serious" such that in UK proceedings they "may well result in a custodial sentence of some length". That error is important because the assessment of the seriousness of the extradition offences goes fundamentally to the weight to be given to the public interest side of the balancing exercise that has to be undertaken in considering proportionality for the purposes of seeing whether or not extradition is barred by reason of article 8 rights.
37. In considering all the factors that are relevant to this issue I have found this a finely balanced case. But ultimately, having considered all the factors to which my Lord already referred, I have concluded also that the proportionality balance comes down against extradition. This is indeed one of those rare cases where the public interest balance is outweighed by the countervailing factors concerning the article 8 rights of the appellant, his partner and, in particular, his young son A.
38. MR COOPER: My Lords, I am grateful. Nothing else arises as far as I am concerned.
39. LORD JUSTICE AIKENS: Doubtless you can agree an order then, and let the associate have it.
40. MR COOPER: Yes.
41. MS HINTON: We will, my Lord.
42. LORD JUSTICE AIKENS: Thank you both very much indeed.