England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		26 October 2016

1. [My Lord, does this need to be anonymised because of the reference to the appellant's rape?] Yes, please – I have made the necessary amendments

1. MR JUSTICE HOLROYDE: This is an appeal by Ms Z by permission of Cranston J against the order of District Judge Snow on 24 March 2016 that she be extradited to Poland in order to be prosecuted there for two offences said to have been committed in 2013.
2. The parties have been represented by Miss Kemish and Miss Hinton. I am grateful for their oral submissions and for the written submissions previously received by the court.
3. The appellant was born on 13 May 1991, so she is now 25 years old. The offences in respect of which her extradition was ordered are unfortunately not the first offences with which she has been charged. In November 2009, when she was aged 18, she was sentenced in Poland to a total of 4 years' imprisonment for a number of offences which must clearly have been serious. The appellant was released from that sentence on 11 July 2013. Within days, and at a time when she says she had neither money nor food, it is said that she committed the first of the two extradition offences by a fraud perpetrated upon a bank. It is said that she obtained a loan which enabled her to acquire electronic equipment costing around £900. The second extradition offence is alleged to have been committed some months later in early October 2013, when it is said that by fraud she obtained a cash loan equivalent to about £100.
4. It appears that the appellant came to this country in January 2014. Not long after her arrival in this country she conceived a child. It is her case that this was as a result of a rape which she was too frightened and embarrassed to report to the police. In the course of her pregnancy she began a relationship with her present partner. The child, a daughter, was born on 3 January 2015 and so is now about 21 months old. The appellant's partner has throughout the child's life treated her as his own daughter. He is named on the birth certificate as the father, although, as I understand it, it is not suggested that he is actually the biological father of the child.
5. As I understand it, the appellant returned to Poland for a visit in the summer of 2014. She was there arrested and served a short period in custody in relation to a failure to comply with certain community requirements of her previous sentence. She thereafter returned to the UK and so was in this country when her daughter was born.
6. Whilst she was in Poland, and before returning to the UK in September 2014, she was questioned by the Polish authorities about the extradition offences. The District Judge records in his judgment that in evidence to him the appellant agreed that she had been formally questioned and charged and accepted that at that time the prosecutor was aware of the fact that she was pregnant. She gave evidence denying that she had understood herself to be under any kind of restriction as to her return to this country.
7. A European Arrest Warrant was issued against the appellant by the Polish court on 26 October 2015 and was certified in this country by the National Crime Agency on 2 December 2015. It is, as I have said, an accusation warrant seeking her extradition so that she may be prosecuted for the two offences which I have very briefly summarised.
8. The appellant was arrested and made her first appearance before the court on 2 February 2016. She was represented that day by a duty solicitor, who informed the court that Article 8 issues would be raised in opposition to extradition.
9. Soon after that initial hearing the appellant consulted her present solicitors. An application for legal aid was made on her behalf. There appears to have been delay in processing it. The causes of that delay are not entirely clear to me and I therefore make no criticism of anyone involved in the process. The important points for present purposes are these. First, that on 10 March 2016 the appellant's solicitors wrote to the court indicating that the application for legal aid had not yet been determined and that the hearing listed for 24 March might therefore not be able to proceed. Secondly, that when the date of the hearing arrived the legal aid application still had not been determined.
10. On 24 March, the appellant's solicitor attended the court acting pro bono to make an application on her behalf for the matter to be adjourned. The District Judge refused that application. His reasons were that the appellant had had ample time to resolve her legal aid application, had failed to comply with directions which had been given at the first hearing as to the time for lodging of certain documents and had made no application to vary those directions. The District Judge concluded that to grant an adjournment would conflict with the Framework Decision and would not be in the interests of justice. Thus he directed the matter to proceed. At that point the appellant's solicitor understandably withdrew leaving the appellant, who acted with the assistance of an interpreter, to present her case in person. She gave evidence on her own behalf but called no other evidence.
11. The District Judge gave his decision at the conclusion of the hearing. It is apparent from the terms in which he did so that he correctly directed himself as to the approach he should take to the Article 8 issues which arose in the case. He accepted the information contained in the European Arrest Warrant and in further information provided by the Polish authorities, and disbelieved the appellant's evidence to the effect that when she returned to this country in September 2014 she did not believe herself to be in breach of any of her obligations towards the Polish court. The District Judge found that she knew when she left Poland in September 2014 that she had been charged with the two extradition offences and found that she became a fugitive from justice at that point. He further found, on the basis of the appellant's admission in the course of her evidence, that the Polish prosecutor had made the decision to charge her in the full knowledge that she was pregnant.
12. So far as the appellant's child is concerned, the District Judge noted in his judgment that the appellant was fearful at the prospect of separation and concerned as to how her partner, who works as a self-employed electrician, would cope with a young child in her absence. The District Judge went on to record the appellant's evidence that "she has no concerns" about her partner's commitment to care for the child and her evidence that if she were extradited her child would remain in the UK in the partner's care, "although she has made no detailed plans".
13. The District Judge rightly carried out the balancing of factors favouring and militating against extradition which is required of him by the judgment in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin). As factors in favour of extradition he listed the familiar considerations identifying the strong public interest in honouring extradition arrangements. He further referred correctly to the fact that matters of mitigation are ordinarily matters to be taken into account by the court in the requesting state. He also referred to the fact that the appellant had re-offended very shortly after her release from her previous prison sentence and said that she was a "clear and determined fugitive from justice".
14. In the section of his judgment in which he set out the factors militating against extradition, the District Judge said this:

"The RP has young child. She is in a settled relationship. She has lived in England since September 2014 and has no convictions in this jurisdiction".

He went on in the following paragraph to say:

"The JA have questioned the RP on a number of occasions, decided that there is sufficient evidence to charge her and concluded, in the knowledge of her pregnancy, that the offences are serious enough to justify the issuance of this EAW. I recognise that the RP will be distressed by her separation from [the child] and I accept that it is undesirable to separate a mother from her young child. [The child] will have the support of [the partner] who will be able to care for her."

15. The District Judge went on to consider section 21A of the Extradition Act 2003 and whether extradition would be disproportionate. In doing so he had regard to the decision in Miraszewski v Torun District Court [2014] EWHC 4261 (Admin). He noted that the offences of fraud with which the appellant has been charged had clearly involved small sums, but on the information before him he could not say that there was only a low impact on the victim. So far as likely penalty was concerned, taking into account in particular the aggravating feature of the previous convictions, the District Judge concluded that he was satisfied that a custodial sentence was likely to be imposed. In those circumstances he concluded that extradition would not be disproportionate.
16. The appellant gave notice of appeal against that decision. It is unnecessary to go into the procedural history of directions which were subsequently given by this court. Suffice to say that an initial hearing date was adjourned in order to allow time for the applicant's solicitors to obtain and present a report from a child psychologist. In the event a report is now available from Professor Bashir, Consultant Child and Family Psychiatrist, dated 18 October 2016.
17. The written grounds of appeal raise three issues. First, it is said that the decision of the District Judge to refuse the application for an adjournment was a breach of the appellant's Article 6 right to a fair trial. Secondly, it is said that the effect of the adjournment and the consequential loss of professional legal representation was that relevant information and evidence was not placed before the court, and that in consequence the District Judge failed to give proper weight to the Article 8 arguments against extradition and so reached a wrong conclusion. Thirdly, it is said that the District Judge was wrong to find that extradition would be proportionate. In this regard it is submitted that the European Arrest Warrant shows that the victims of the alleged frauds were respectively a large bank and a business organisation and that the District Judge should therefore have concluded that the offences not only involved small sums of money but were likely to have had only a low impact.
18. As to the first ground of appeal, it is now accepted by Miss Kemish on behalf of the appellant that the Strasbourg jurisprudence shows that extradition proceedings do not involve the determination of a criminal charge and therefore do not entitle a requested person to the rights which a person charged with a criminal offence enjoys under Articles 6.1 and 6.3. Nor, in the case of a person who is not an UK citizen, does extradition involve the determination of the requested person's civil rights within the meaning of Article 6.1. She therefore acknowledges that the respondent is correct in submitting that Article 6 has no application to the issue of whether the District Judge was wrong to refuse an adjournment. That issue falls to be resolved in accordance with ordinary common law principles relating to the just and fair conduct of hearings before the courts.
19. Applying those principles, I am unable to say that the District Judge was wrong to refuse the application for an adjournment. Certainly there were strong arguments to be advanced on behalf of the appellant. It could be said that any contribution she personally made to the overall delay in processing the legal aid application was no more than a minor factor in that delay. Secondly, it could be said that she was a litigant who had applied for legal aid in circumstances where it could be expected that the legal aid would be granted, and was therefore in a very different position from a litigant who comes to court having failed to make any application or having made an application in circumstances where he or she could have no realistic expectation that it would succeed. Nonetheless, this was a case management decision for the District Judge and the reasons which he gave for concluding that the hearing must proceed that day, as it had been listed for a considerable period of time, were perfectly proper considerations. He was therefore entitled to conclude that in all the circumstances the case must proceed.
20. The first ground of appeal accordingly fails.
21. Turning then to the second ground, which really lies at the heart of this case as Miss Kemish has focused her submissions on the Article 8 considerations rather than the discrete proportionality point. In this respect the respondent submits that the District Judge directed himself correctly in law, had regard to relevant matters and that there is no basis on which the court should interfere with his conclusion that extradition would not be a disproportionate interference with the Article 8 rights of the appellant and her daughter.
22. I have indicated that in my view the District Judge cannot be criticised for his conclusion that the hearing must proceed without any adjournment. The effect of that decision, however, was that the appellant's case was presented by her in person and through an interpreter. That, of course, is a common feature of extradition proceedings and is emphatically not a reason in itself for impugning a decision of an extradition judge.
23. One of the submissions made in writing on the appellant's behalf is that she understandably did not feel able to say anything to the District Judge as to the circumstances in which her child was conceived, and so the decision was made in ignorance of that fact. I accept the point, but I also agree with the submission for the respondent that the circumstances of conception in themselves would be unlikely to affect significantly the issues before the court.
24. It seems to me that I must focus on the particular circumstances of this case and consider whether in all those circumstances the District Judge had the material to enable him to reach a correct decision on the Article 8 issues which lie at the heart of the case.
25. In my view, it is entirely clear that the appellant was in fact unable to put before the court all relevant information. Dealing first of all with matters which it could be said it was within her own capacity to mention, it is apparent that very little was said or was placed before the court about exactly what the consequences would be for the appellant's child if she were extradited to face trial in Poland. I have noted above the terms in which the District Judge recorded the evidence on the point. From his note set out in his ruling, it seems to me that the appellant appears not to have been able to articulate the full extent of the concerns which she has and which must objectively arise in this case. All the indications are that the appellant's partner has very willingly accepted the child as his own and has stood in the position of father to the child. All the indications are that he has expressed his commitment, should the appellant be extradited, to caring for the child to the best of his ability. But what it seems to me does not appear to have been clearly canvassed before the District Judge or clearly taken into account in his ruling are the true practicalities of the situation. The partner, as I have indicated, is a self-employed electrician. He depends for his income, and therefore indirectly for his accommodation, on his ability to earn a living by working five or six days a week. Many couples face similar dilemmas when one of them is at risk of imprisonment; but there appears here to have been no detailed evidence before the court as to how in fact the partner would be able to provide for himself and the child, otherwise than by stopping work and (presumably) becoming dependent upon benefit and hoping to find accommodation which could in some way be funded at public expense.
26. Moreover, it does seem to me that no specific consideration was given to the position in law of the appellant's partner. As I have indicated, my understanding from everything before me is that although, for reasons which are not clear to me, he is named as the father on the birth certificate, he is not in truth the natural father. Quite what his parental rights are in that situation was not the subject of any evidence before the court. A hint of the sort of difficulties which might arise is given by a written representation to the effect that as things stand the child has no passport and would therefore be unable to be taken to visit her mother in the event of a prison sentence in Poland. It does not seem to me that there was any evidence before the court, or consideration, of whether it would be possible for a passport to be obtained if the partner has no parental rights.
27. In making these points I am very conscious that the court can only proceed on the basis of the evidence before it and I am reluctant to criticise the District Judge for doing so. But I am bound to say that these seem to me to be significant features of the evidence which really called for further detail, which the appellant - acting in person through an interpreter - was not able to provide.
28. I turn next to the expert evidence which is now available in the form of the report from Professor Bashir. Miss Hinton very realistically has accepted that this report is capable of being received as fresh evidence in accordance with the principles in Ladd v Marshall [1954] EWCA Civ 1 and, in my judgment, the court properly could and should receive it. To some extent the report sets out matters which the court no doubt had very much in mind in any event. It is self-evident that a young girl separated from her mother will inevitably suffer great distress, and no expert report was needed to make good that common sense proposition before the District Judge. He clearly accepted that consequence of extradition. Professor Bashir is, however, able to take matters considerably further than that in the particular circumstances of this case. He has interviewed both parents and has assessed how the emotional well-being of the child is likely to be affected by separation from her mother and by being left in the sole care of her mother's partner. The assessment which Professor Bashir makes comes to this: whilst the partner is strongly attached to the child and committed to her care, the fact of the matter is that he has not thus far played a substantial role in childcare, because he has been engaged in working and in proving the family's income. There is no suggestion that he has any other childcare experience. Whilst it was obvious to Professor Bashir, and for my part I readily accept, that the partner would do his best, Professor Bashir found upon inquiry that the partner was only able to speak in generalised terms about how he would look after the child.
29. The opinion expressed by Professor Bashir for the consideration of the court includes the following points. First, in his opinion there was no doubt that it was not conducive to the emotional well-being of the child to be separated from her mother at an important emotional developmental stage in her life. He felt that she would be at risk of suffering from adverse developmental effects if deprived of the company and support of her mother. He expressed the view that the risk of emotional dysfunction would be increased if it transpired that the partner was not able, despite his endeavours, to meet the child's emotional needs competently. He said that the partner:

" ... has a bonding and attachment to [the child] and is committed to her care. However he is honest enough to accept that as he has not played a significant role in her care due to work commitments the dynamic and between him and [the child] could evolve under the cloud of uncertainty, anxious behaviour and the child's regressive emotional functioning."

30. The Professor points out that by reason of the absence of her mother the child would have an enhanced need for emotional care, which would, as he put it, challenge the partner's parenting capacity: "It seems that he would try his best but he is very open in accepting that he will struggle". Moreover, Professor Bashir pointed out that there may be unpredictable and unanticipated consequences for the family unit of the mother being extradited and the father left either to juggle work and childcare commitments or to give up his work. Such consequences, in the Professor's opinion, could compromise the parenting capacity of the partner and would not be in the interests of the child's emotional well-being.
31. These are all matters which, in my judgment, call for careful consideration. In the circumstances of this case and recognising, of course, that I have the benefit of hindsight, it does seem to me clear that the court below did not have all the information and evidence which it needed in order properly to assess the interests of the child as a primary consideration when conducting the Article 8 balancing exercise. If the appellant had had the benefit of legal representation, as she would have done but for the delay in processing her legal aid application, she would have been in a position to put before the District Judge all the evidence which is now available to me, and her case would have been very much stronger in relation to the true interests of the child.
32. It also seems to me that legal representation would have enabled a far clearer articulation to the court of important points in the appellant's favour than she herself was able to achieve through the interpreter. It may certainly be said that much of what the appellant would have wanted the court to consider is the stuff of common sense and ordinary human concerns, and no particular legal skills would be needed to make relevant points. But true though that is, it does seem to me, to give an example, that with the advantage of legal representation the appellant would have been much better equipped to address the issue of whether her behaviour would necessarily result in an immediate custodial penalty in this country. That, of course, is in no way determinative of any issue in the case but it would be a relevant factor in considering the proportionality of extradition.
33. By way of further example, it seems to me that the terms in which the District Judge has summarised in his ruling the limited evidence before him as to the circumstances in which the appellant left Poland in September 2014 show that there was much more to be said on that topic. In particular, it does not appear that the court below had any opportunity to consider the appellant's case that when she first left Poland she did not believe herself to be under any threat of prosecution and that her visit to Poland in the summer of 2014 demonstrates that that was her belief. These are not decisive factors. The District Judge may nonetheless have concluded that the appellant had left Poland in September 2014 as a fugitive from justice. But had he been aware of all the material which is now before me, it seems that he would have had grounds to come to a different view and at the very least would have reached his conclusion on that particular point by a different route.
34. I have found this a difficult case. There is considerable force in the submissions made on behalf of the respondent. The court cannot be compelled to reach one decision rather than another by a requested person's case being presented in terms which are subsequently said to be incomplete or insufficient. The conclusion I have reached here is one which is very much dependent on the facts and circumstances of this particular case. It provides no precedent for any other case and should certainly not be regarded as providing any encouragement for applications to adjourn hearings before extradition judges.
35. Nonetheless, I do reach the conclusion that in all the circumstances the Article 8 rights of the appellant and her family, in particular her daughter, could not fairly or properly be determined on the basis of her own presentation, through an interpreter, of a case which lacked the evidence which would have been available but for the delay in the obtaining of legal aid. I am satisfied that if all the information now before this court had been available to the District Judge he would have reached a different decision on the Article 8 issue. He would still have found that the interference with the Article 8 rights of the appellant and her family were, of course, for a legitimate purpose but, in my judgment, he would have concluded that it was not necessary in a democratic society to order extradition and thereby to deprive this very young child of her mother for a wholly uncertain period of time in relation to the offences of which the mother is accused. He would therefore have reached a different decision and would have refused extradition.
36. In those circumstances and for those reasons this appeal succeeds. The appeal is allowed.
37. Miss Kemish, do you need anything more from me by way of order other than the appeal is allowed? You probably need an order for an assessment of your publicly funded costs, do you? I think such an order is probably needed. So I will order: (1) appeal allowed and (2) public funding assessment, in the terms which the associate will be able to draw up.
38. Miss Hinton, you will perhaps be able to assist, does the order need to say more than that? Does it need formally to record that the extradition order is discharged?
39. MISS HINTON: My Lord, we can assist, if you would like, in agreeing something between us and then emailing your clerk in those terms.
40. MR JUSTICE HOLROYDE: I am grateful.