England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/09/2016

Lord Justice Burnett :

1. The appellant is a 37 year old Latvian woman wanted for prosecution in Latvia for stealing a firearm and ammunition, which carries a sentence of between two and 10 years' imprisonment. She came to the United Kingdom in 2013 in circumstances which, when taken with her travails in the early months after she arrived, led to her being accepted by the competent authority here as a victim of human trafficking. She resists her surrender to Latvia on a combination of factors which include the risk of being trafficked once more, her vulnerability following a head injury and the presence in the United Kingdom of her father from whom she had been estranged but with whom she is seeking to rekindle a relationship.
2. On 28 July 2015 District Judge Zani, sitting at Westminster Magistrates' Court, ordered the appellant's extradition to Latvia pursuant to an accusation European Arrest Warrant ("EAW"). The appellant was arrested pursuant to the warrant on 25 October 2014 and was given bail following her first appearance two days later. She failed to attend the next hearing on 23 February 2015. A warrant for her arrest was issued which was later executed on 8 May 2015. She was taken before the court and re-bailed to attend a case management hearing on 13 July and the extradition hearing on 28 July. She attended neither, with the result that the judge issued another warrant and proceeded in her absence. Being without instructions, her solicitors withdrew from the extradition hearing. The judge considered potential bars to surrender on the basis of the little information available, which included that the appellant had been the victim of an attack causing a head injury, but concluded that there were no bars to extradition and no human rights impediments to the appellant's surrender. On 2 January 2016 she was arrested on the outstanding warrant. On 4 January 2016 she was brought before the judge for failing to answer to her bail, pleaded guilty and was sentenced to 12 weeks' imprisonment. She has remained in custody since the expiry of that sentence, a period of about six months. She has had no interest in seeking bail. It is apparent from the materials before us that the structure that prison has imposed, coupled with its keeping her away from people who were exploiting her and with whom she took drugs, has paid considerable dividends.
3. The appellant appeals out of time with leave of Cranston J. Mr Summers QC advances three grounds on her behalf. First, that the appellant's surrender to Latvia would breach her rights under article 4 of the European Convention on Human Rights ("ECHR") on the basis that there would be a risk of her again being a victim of human trafficking. Secondly, that her surrender would violate her rights under article 8 ECHR; and, thirdly, that her surrender would be oppressive for the purposes of section 25 of the Extradition Act 2003 ("the 2003 Act"). All three grounds rely upon the appellant's personal circumstances, the fact that she has been a victim of human trafficking and medical evidence from Dr Eileen Walsh, a clinical psychologist, and Dr Kim Jolliffe, a clinical neuropsychologist.
4. At the conclusion of the oral hearing Mr Summers sought leave to introduce further evidence from the Home Office files concerning its dealings with the appellant and the official United Kingdom acceptance that she had hitherto been a victim of human trafficking. The respondent did not oppose that course. We gave directions to enable further material to be provided together with short written submissions to be made upon it, if necessary. The expectation of the parties was that the additional submissions would follow within a week or two. The submissions were eventually filed over six weeks later in the last week of July 2016.

Article 4 ECHR

5. Article 4 ECHR provides:

"Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. [exceptions]"

Article 4 ECHR is but one of a number of international instruments which deal with slavery and forced labour. The Council of Europe Convention on Action Against Trafficking in Human Beings, CETS No. 197, done at Warsaw on 16 May 2005 ("the Anti-trafficking Convention"), is material to the arguments developed in this appeal. Its importance stems from the fact that in Rantsev v Cyprus and Russia (2010) EHRR 1, para 282, the Strasbourg Court held that trafficking in human beings, as defined in article 4a of the Anti-trafficking Convention, fell within the concept of slavery and forced labour for the purposes of article 4 ECHR. It provides:

"For the purposes of this Convention:

"Trafficking in human beings" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."

6. The Anti-trafficking Convention imposes obligations on its state parties to establish "competent authorities" to make decisions in respect of individuals who may have been the victims of human trafficking. If the competent authority concludes that there are reasonable grounds to believe that an individual is a victim of trafficking various protections kick in, including that a person subject to immigration control cannot be removed during a short cooling off period. Further protections follow if the competent authority then decides, on balance of probability, that the person concerned is a victim of human trafficking. For a fuller discussion of the effect of the Anti-trafficking Convention see Secretary of State for the Home Department v Hoang Anh Minh [2016] EWCA Civ 565 between paras 8 and 13.
7. In circumstances to which I will return, the appellant was referred to the competent authority responsible for cases involving European Union and European Economic Area nationals. By coincidence that is the same body with responsibility for administering the EAW system, the National Crime Agency ("NCA"). Acting as the competent authority, the NCA accepted first, that there were reasonable grounds to believe that the appellant was a victim of human trafficking and later, secondly, that she was a victim.
8. Article 4 ECHR prohibits convention states from holding people in slavery, servitude or exacting forced labour. It is not that negative obligation upon which the appellant relies, but the positive obligations which article 4 imposes. Those were drawn together by the Strasbourg Court in the Rantsev case between paras 283 and 289:

i) Legal safeguards should be in place, that are adequate to ensure practical and effective protection of the rights of victims and potential victims of trafficking. That requires, in addition to criminal law measures, appropriate regulation of businesses associated with trafficking (paras 284,285).

ii) In circumstances analogous to those which arise under article 2 ECHR and described in Osman v United Kingdom (2000) 29 EHRR 245 at para 116, in closely defined circumstances to take operational measures to protect victims or potential victims of human trafficking (para 286, 287).

iii) By analogy with articles 2 and 3 ECHR, a procedural obligation to investigate situations of potential trafficking (para 288).

iv) To co-operate with another country where there is a cross-border element to alleged trafficking (para 289).

9. The appellant's contention under article 4 ECHR set out in the skeleton argument was that because she was a victim of human trafficking in Latvia before she came to the United Kingdom she is at risk of being trafficked again, with the consequence that her surrender would violate article 4. She prays in aid her head injury as having increased her vulnerability. In oral submissions Mr Summers shied away from the argument that the appellant's surrender to Latvia would violate her rights under article 4 ECHR. Instead he relied upon the risk of re-trafficking, made all the more acute by the appellant's vulnerability, as a factor which weighs in the article 8 balance.
10. There is, of course, no suggestion that Latvia is itself engaged in human trafficking and it is plain that Latvia has in place appropriate laws which criminalise such activity. Furthermore, although various international reports placed before us make suggestions for improvement in the way in which Latvia can tackle human trafficking they fall far short of establishing the proposition that Latvia is failing to abide by its international obligations under the Anti-trafficking Convention or article 4 ECHR (The Group of Experts on Action against Trafficking in Human Beings, 31 January 2013; Europol Situation Report, February 2016; US State Department report on Trafficking in People, 2015). A direct appeal to article 4 ECHR would require a requested person to rebut by evidence the strong presumption that the country concerned would abide by its international obligations under the ECHR: Krolik v Poland [2012] EWHC 2357 (Admin); [2013] 1 WLR 490. Alternatively, and by analogy with cases under article 3 when the risk of ill-treatment etc. comes from non-state actors, a requested person may, at least in theory, be able to show by reference to the circumstances of his case that the requesting state cannot provide sufficient protection: see the discussion in R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38; [2005] 2 AC 668.

The facts in outline

11. The EAW alleges that the appellant, who was born on 15 July 1979, was in the house of P. Zaharenko on 14 April 2013 when she took advantage of his being drunk to steal his 9mm Walther pistol together with a magazine of ammunition. They were worth a little over 700 euros. It is not the value of the items which reflects the seriousness of the alleged offence but the fact that the stolen property comprised a firearm and ammunition. Section 175(4) of the Criminal Code of Latvia provides a minimum sentence of two years' imprisonment and a maximum of 10 years' imprisonment upon conviction for the offence. The appellant says she took the gun because Mr Zaharenko threatened her.
12. The appellant's case resisting extradition is set out in a witness statement filed in these proceedings. It is untested in its detail and is, to some extent, internally inconsistent and contradicted by recent further information provided by the Latvian authorities. In summary, the appellant says that she lost her job in 2007 working in Latvia for a company making power tools. In 2008 she started a small holding but ran into financial difficulty. The bank called in the mortgage. A neighbour suggested she travel to England and that he had friends who could arrange work and accommodation. The appellant says she travelled by air to England in May 2013 arriving at what she thought was Peterborough airport. She then lived in Peterborough in a house full of criminals. Her passport was taken away and she was forced to open bank accounts and provide the paperwork to those running the house. She realised that they intended to put her to work as a prostitute. She got away by calling a friend she knew in Birmingham and went to stay with him. After a couple of nights the appellant moved to a cheap hotel and then met a man who became her pimp. There was no connection with the earlier people in Peterborough, or her friend. She was soon arrested as a prostitute but released. Then she met another man she knew as both Larry and Steve. She fell in love with him, but he too worked her as a prostitute.
13. On 27 September 2013 the appellant was attacked by a client she had seen on a number of occasions. Her own account of the chronology is rather muddled but there are some independent documents which provide the bare bones of what happened. Both were drunk and had taken drugs. He attacked her with a hammer fracturing her skull and breaking a finger. The appellant was in hospital until 28 October 2013, although she suggested much longer in her witness statement. The man was eventually convicted of wounding with intent and sentenced to 10 years' imprisonment. We have no more than a press report detailing that. Whilst the appellant was in hospital the fact that she may have been trafficked to the United Kingdom, and since her arrival forced into prostitution, was reported to the United Kingdom Human Trafficking Convention Competent Authority.
14. The Anti-trafficking Convention imposes obligations to prevent trafficking, to discourage demand for trafficked people, to criminalise trafficking and to prosecute trafficking offences. Article 10 sets out procedures for the identification of the victims of trafficking. They require a two stage approach foreshadowed in para 6 above. First, the competent authority must determine whether there are "reasonable grounds to believe that a person has been the victim of trafficking". Then, if the competent authority determines that the person probably was a victim of trafficking, further protections are provided. For those not entitled to remain in the United Kingdom, one of the protections is to grant discretionary leave to remain for a year to enable him or her to cooperate in any criminal investigation into the alleged trafficking.
15. As a result of the concerns which followed the attack on the appellant and the reference to the competent authority, on 2 November 2013 the NCA decided that there were reasonable grounds to believe that she had been the victim of human trafficking. On 18 December 2013 it concluded that she had been trafficked. In the meantime the appellant had left hospital and gone to Bristol where she was in the care of the Salvation Army Anti-trafficking team.
16. A consistent theme in the evidence provided by the appellant was that either the Home Office or the NCA had accepted that she would be at risk of being further trafficked were she to be returned to Latvia. It was to corroborate that assertion that the pursuit of Home Office records was undertaken by the appellant's solicitors after the hearing of the appeal. Whilst the material later provided does not support that contention, the decision document records the appellant's account of her circumstances in Latvia, how she came to the United Kingdom and soon found herself being exploited. The route, that is from Latvia to the Wisbech area (not far from Peterborough), was well known to the Cambridgeshire police who had investigations underway into organised trafficking. The police had treated the appellant's account as credible and, on balance, so too did the NCA. There are further discrepancies between the account of events set out in the appellant's witness statement and her account recorded by the NCA but its core is consistent. I proceed on the basis that the appellant was a victim of trafficking. The respondent judicial authority does not seek to suggest otherwise in these proceedings. We are not in a position to make any independent findings of fact on that matter.
17. The papers from the Home Office show that in January 2014, immediately following the NCA's decision to accept the appellant as a victim of trafficking, she was given 12 months discretionary leave to remain in the United Kingdom. The police had asked that she be given such leave "so that she could be a witness in the serious assault against her." That was consistent with the arrangements in place to satisfy the Anti-trafficking Convention. Although the appellant is a citizen of the European Union she was not exercising treaty rights at the time. The discretionary leave gave her security and access to various benefits.

The Medical Evidence

18. Dr Eileen Walsh is a clinical psychologist who was instructed to make a general assessment of the appellant's mental state and to assess the likely impact upon her were she to be extradited. She reported on 25 April 2016 having seen the appellant in custody. Dr Walsh recorded that the appellant had a long history of drug abuse but had become clean in prison. She was worried and anxious. She described seeing images of the attack on her and suffered nightmares although she could not recall the attack itself. She met the diagnostic criteria for Post Traumatic Stress Disorder consequent upon the attack. Dr Walsh assessed her against the diagnostic criteria for a Major Depressive Disorder but she did not meet those criteria. She did not present with a risk of suicide but Dr Walsh noted her difficulty in disengaging from exploitative relationships and her past history of being harmed, and harming herself, through drugs. She was likely to be vulnerable to future risk in relation to her substance abuse and the risks that go with it, such as street prostitution, and to being exploited. Dr Walsh suggested that the appellant would benefit from treatment for PTSD. It does not appear to have been diagnosed or treated before Dr Walsh saw the appellant. Extradition would heighten the appellant's anxiety and might lead to an increase in her symptoms of PTSD. The progress she had made in custody might be impeded or reversed.
19. Dr Walsh recorded that the appellant had discovered that her father was in England and that although they had been estranged they were once again in regular touch by telephone. The appellant hoped to live near her father and find work were she to remain in the United Kingdom. If that did not happen she would be vulnerable.
20. Dr Kim Jolliffe is also a clinical psychologist who produced a neuropsychological report on 25 April 2016 following a visit to the appellant in custody. The appellant reported that as a result of her head injury she could not write or type as quickly as she could before. Her ability to switch between the three languages she speaks was not as quick as it was. Nonetheless, the appellant spoke good English with no difficulties of comprehension. The results of various tests administered by Dr Jolliffe were not conclusive but there was a suggestion that the head injury may have caused some impairment of memory. Flexibility of thinking was unimpaired. Speed of processing may have been reduced by the head injury. There was impairment of two tasks that required abstract and concrete planning. Dr Jolliffe confirmed that the appellant had benefited from the structure of life in custody and that without support she would be vulnerable to returning to drugs and a chaotic lifestyle. The head injury would increase the risk of her returning to substance misuse. She is vulnerable to further exploitation. Dr Jolliffe recommended a referral to a specialist brain injury service.
21. The discharge letter from University Hospitals Birmingham dated 18 October 2013 confirms that the appellant suffered a fracture of the skull vault on 27 September. Various follow up sessions were arranged. In March 2014 it was noted that she had made a good recovery but felt anxious. Her "main complaint" was that she was finding it a little frustrating to think and write in three languages but "she is not worried about this".

Further information from Latvia

22. A letter dated 16 May 2016 from the Prosecutor's Office of the Republic of Latvia confirmed that their domestic law criminalises human trafficking and provides for the protection of its victims. If the appellant is convicted, her health problems would be taken into account by the court in deciding upon sentence. Medical examination and treatment (including for mental health problems) is available both in the community and in custody. The court process would involve an assessment of the appellant's mental condition were it to be an issue and procedures be adjusted to take any difficulties into account.

Discussion

23. The appellant's argument under article 8 ECHR rests upon a series of propositions. First, the NCA and the Home Office have accepted that she falls within the definition of human trafficking found in the Anti-trafficking Convention. Second, her conduct in the United Kingdom in moving from one environment of exploitation to another demonstrates that she has an underlying vulnerability which allows her to be taken advantage of. Third, her head injury has made her more vulnerable and more generally her medical condition should tell against extradition. Fourth, by finding herself with the support of voluntary organisations in the United Kingdom, whose help she might reasonably seek again if at liberty here, she is well-placed to avoid further exploitation. Fifth, her father has indicated that he will provide support in the United Kingdom in the future. Last, if she is returned to Latvia and at liberty, there is a risk that she would again be exploited.
24. The appellant argues that she has suffered substantially since she came to the United Kingdom. She submits that the factors I have summarised should weigh heavily in the article 8 balance. She prays in aid a short delay of about three months before an arrest warrant was issued in Latvia and a further six months before the EAW was issued. Any sentence she might receive is likely to be mitigated to reflect the hardships she has endured and she has anyway been in custody for about six months. The weight in favour of extradition is reduced.
25. The applicable principles in extradition cases in which article 8 is relied upon to resist surrender derive from Norris v Government of the United States of America [2010] UKSC 9; [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic (Genoa) [2012] UKSC 25; [2013] 1 AC 338. They are too well known to require extensive citation. At their heart is a recognition of the constant and weighty public interest in the extradition of individuals to face trial for serious offences. The United Kingdom should honour its treaty obligations. No safe haven should be created for those accused or convicted of crimes overseas. Article 8 might in an exceptional case prevent extradition. The context of the cases heard together with HH was the potential impact upon children but reliance upon article 8 is not restricted to such cases.
26. In Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551 this court indicated that a District Judge should identify the factors pulling each way in an article 8 case and state the conclusion. An appellate court would interfere only if the conclusion was wrong. The judge in this case had very little information before him about the appellant's circumstances because of the way in which the hearing had to proceed in her absence. As a result, it is common ground that the limited role of the appellate court identified in the Celinski case needs modification in this appeal. We must make our own assessment.
27. The appellant has no real family life in the United Kingdom. It is true that she has made contact with her estranged father who works distributing parcels for a charity and lives in a single room in a shared house. His statement suggests that they talk frequently on the telephone and that the appellant regularly writes to him but they have not met. He says that if she is released he will find a room for her, help her and encourage her to work delivering parcels. The involvement of her father in her future is in truth speculative. But it is realistic to suppose that were she released into the United Kingdom the appellant would, if so minded, be in a position to seek the continued help of organisations dedicated to assisting victims of trafficking. She might avoid going back to the lifestyle she previously led, including a relapse into drug taking. Given her own account of her life after coming to the United Kingdom such an outcome must be far from certain. No doubt appropriate medical support would be available here.
28. The offence for which the appellant is wanted to stand trial in Latvia is a very serious one. Were she surrendered to Latvia she would be returned as someone who had been accepted by the competent authority in this jurisdiction as a victim of trafficking. Such a conclusion would not in any way bind the Latvian authorities to accept that as necessarily true, any more than it would have bound the District Judge had he heard evidence on the matter, but they would be well aware that the appellant was someone who might need protection. Such protection would be required only if she were granted bail. That protection might be secured by the imposition of bail conditions. The Latvian authorities would also be well aware of the appellant's medical needs. The medical evidence placed before this court could accompany her to Latvia. There is no reason to suppose that reasonable medical provision would not be made. Her medical difficulties, treatment in the United Kingdom at the hands of those she says abused her and the fact of her being attacked can all be relied upon as mitigation if she were to be convicted. The time she has spent in custody in the extradition proceedings is short compared with the sentencing range identified in the EAW. It is of very little weight in the article 8 balancing exercise and, in any event, if she is convicted must be taken into account by the sentencing court. The delay identified by the appellant in the Latvian authorities pursuing her is of no moment.
29. When the factors relied upon by the appellant are set against the weighty public interest in her extradition it becomes clear that they fail by a large margin to displace that public interest in the United Kingdom returning her to be tried for the serious offence of theft of a handgun and ammunition. In my judgment the article 8 argument fails.
30. Mr Summers focused his submissions on article 8. The argument that to extradite the appellant would be oppressive for the purposes of section 25 of the 2003 Act by reason of her physical and psychological injuries was but lightly pressed. The discharge of a requested person, or adjournment of the extradition proceedings, must be ordered if "the physical or mental condition of the person is such that it would be … oppressive to extradite him." The approach to such arguments was examined in detail in Republic of South Africa v Dewani [2012] EWHC 842 (Admin); [2013] 1 WLR 82, in particular at para 66 and following. Oppression is different from hardship and imports a high threshold. In my view the appellant's medical difficulties, described by Drs Walsh and Jolliffe and summarised above, fall a long way short of supporting the contention that her surrender would be oppressive. Conclusion
31. The appellant's grounds under article 8 ECHR and section 25 of the 2003 Act on examination are lacking in merit. In my judgment Mr Summers was right not to press the argument that the appellant's surrender would, without more, violate her rights under article 4 ECHR. I would dismiss the appeal.

MR JUSTICE GREEN

32. I agree.