England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2017

MR JUSTICE LANGSTAFF :

1. The appellant appeals against an extradition order made by District Judge Devas on 30^th. September 2016 at the Westminster Magistrates' Court. The appeal focuses centrally upon whether the judge was wrong to hold that the public interest in extradition outweighed the interference which that extradition would undoubtedly cause to the Article 8 rights of both the appellant and her children to private and family life. He concluded that that decision was "finely balanced", though what weighed significantly in it was a conclusion of fact which he had made to the effect that the claimant was a "fugitive" in that she had in effect known that the authorities in Hungary required that she should tell them of any change of address and provide contact details but had deliberately chosen not to do so when she came to the UK in 2011.
2. The European Arrest Warrant pursuant to which the extradition request was made was an accusation warrant. It alleged complicity in a significant fraud on a bank. There has been no dispute before me as to the District Judge's conclusion that if convicted such an offence might and probably would justify a significant term of imprisonment.
3. The judge's conclusion was that extradition to face such a charge was not a disproportionate interference with her Article 8 rights (and those of her children) such that extradition should not issue.
4. Under s14 of the Extradition Act 2003 ("the Act"):

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –

(a) committed the extradition offence (where he is accused of its commission) or

(b) become unlawfully at large (where he is alleged to have been convicted of)."

5. Although the judge's determination that the appellant was in colloquial terms a "fugitive" (that expression does not as such appear in the Act, and sits more easily with passage of time under section 14(b) rather than (a)), no objection is taken to the judge using that description as shorthand for a person who knowingly absented herself from the jurisdiction, knowing that she could be required to attend Court, who was obliged to let the authorities know of her whereabouts and contact details but deliberately chose not to do so.
6. Section 21A requires a judge to decide whether extradition would be compatible with or disproportionate to Convention rights within the meaning of the Human Rights Act 1998. It specifies the matters which are to be taken into account in respect of proportionality, each of which Judge Devas considered.
7. Section 26 provides for an appeal to be brought before the High Court where the judge has ordered a person's extradition; and section 27 provides for the powers of the Court on such an appeal. So far as is material: -

"(1) On an appeal under section 26 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 appropriate judge ought to have decided a question before him at the extradition hearing differently.

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that –

(a) ….evidence is available that was not available at the extradition hearing;

(b) the…evidence would have resulted in the appropriate judge deciding a question before him at the extradition differently.

(c) if he had decided the question in that way, he would have been required to order the person's discharge."

The Appellant and her leaving Hungary

8. The appellant is a single mother, with three dependent children. She has two daughters by a Hungarian man from whom she separated in around 2005 because of his violence toward her. She married another Hungarian, but that relationship was short-lived, and after some time during which she said the father paid no regard to their daughters, he attempted to make contact with her and demonstrated a wish to see them. He threatened to take them, and engaged a solicitor to take steps towards establishing contact by legal process.
9. In the meantime, the allegation of the appellant's complicity in fraud had come to light. The appellant was interviewed about it, and is said to have made some admissions as to her role in assisting another to obtain a significant bank loan by advancing fraudulent details. This interview occurred in 2010. She plainly formed the intention of leaving Hungary over the next few months, though her doing so at the precise time she did appears to have been precipitated by her agreeing to see the solicitor acting for her erstwhile partner in respect of contact with the children, telling him, deceptively, that she would meet on 18 December. The day before that set for the meeting she left with her daughters for the UK. The Hungarian authorities had not been able to trace her thereafter, until the present proceedings were begun.
10. The judge held in respect of that that he was satisfied to the criminal standard that she was aware of her obligations to notify the authorities of any change of address and failed to comply with her obligations: he rejected the account she had given him to the contrary on the grounds it was not credible.
11. He concluded in respect of an argument addressed to him under s14 of the Act, to the effect that it would be oppressive to extradite the appellant, that it would not be, since she was a fugitive.
12. On behalf of the appellant, Mr Mason argues that the judge was not entitled to reach that decision. He did not take into account matters which he should have done: that the claimant was fleeing domestic violence; that this was her primary motive for leaving; that she had spent several months between her interview and leaving the country in Hungary, which argued against her wishing to become a fugitive. Against that, Mr dos Santos says, in my view correctly, that the finding that the appellant was a "fugitive" was amply justified. It was one of fact, and has to be accepted unless it was reached by the wrong approach or was plainly perverse. It was neither.
13. I reject the attack upon the conclusions by the judge (1) that there was no oppression here, and (2) that such delay as there was was the responsibility of the appellant.
14. The difficulty in sustaining Mr Mason's argument is that the appellant asserts that her reasons for leaving Hungary were to escape the domestic violence of her ex-husband and (grounds paragraph 28) that she did so in order avoid further assaults at his hands. These did not prevent her telling the authorities where she had gone and why. The judge decided that he could not accept much of what she said about the circumstances of her leaving Hungary as being credible. He found beyond reasonable doubt that she was well aware of her obligations to tell the Court, the prosecutor's office or the investigative authority of her home address and of her place of stay, and any change in her home and place of stay, not later than within three working days after moving. She did not do so. He was satisfied beyond reasonable doubt that she deliberately left Hungary without giving details to the relevant authority, and did not believe her when she says she was unaware of her obligations. Those are powerful findings of fact by a judge who heard her give evidence and be challenged upon it. I do not accept that in reaching the conclusion he did, the judge was obliged to spell out in detail what other reasons the appellant may have had for wishing to leave Hungary, nor did he have to explain why she had not done so earlier. He nonetheless dealt with the matter in the alternative (at paragraph 27), saying that even if he were wrong on this point extradition would not be oppressive since the major change in her situation relied on in respect of the relevant period was the birth of a son, Saaram, which did not significantly change her status as the main carer for her young children. Equally, he held it would not be unjust as the continuing Court process in Hungary meant that the evidence in the case would not become stale, adding:

"It also has to be said that, even if not a fugitive, such delay as there has been in the case is largely due to the RP leaving Hungary when she did."

Section 21A/Article 8

15. The appellant's elder daughter, Edina, is now 14, and her younger, Vivien, is now 13; they were 13 and 12 at the date of the hearing before the judge. Their brother, Saaram Usman is now three, having been born on 8 August 2013: the appellant met the father in 2012 and moved in within a few months. He, too, was controlling and abusive, and she separated from him in 2015. However, according to a psychological report prepared by Dr. Stokou, he spends a significant amount of time in the family home.
16. The evidence before the judge was that the appellant suffers significantly from depression. Dr. Stokou thought that the family had close and loving relationships collectively, and the appellant had such relationships individually with each of her three children. She considered that in the event of the appellant's extradition, "…the impact upon Saaram would be devastating and he would suffer severe emotional and relational problems as a result." This conclusion derived from attachment theory, causing a "major and traumatic loss" (paragraph 7.21 of her report), instability (paragraph 7.22) and a view that it would be difficult for him to maintain contact with the appellant during her imprisonment. Edina would be severely impacted: her primary care giver was her mother and any separation from a secure attachment figure would constitute a major and traumatic loss for her (paragraph 7.28). Vivien currently functioned well socially, behaviourally and academically. She would be likely to suffer moderate mental health problems and educational difficulties if her mother were to be extradited and would suffer instability.
17. The London Borough of Redbridge Community Social Work Team had been engaged with the appellant and her children since before any immediate question of extradition arose. A report of the 8 August 2016 was before the judge. In summary it concluded that it would cause the children further upset, disruption and instability if they were removed from their mother's care and placed in the care of another care-giver: "It is my view that this would be harmful to the children emotionally and psychologically and have a lasting impact given their early childhood experiences." In part of that report is said

"47. At such time the local authority has not identified any viable alternative care-givers within the family or friends network. The local authority would have no other option but to accommodate the children in foster care placements if [the appellant] was extradited."

18. Considering this material, the judge directed himself by reference to the key principles established in the Supreme Court in HH [2012] UKSC 25, following on from Norris [2010] UKSC 9. In the latter, Lord Phillips of Worth Matravers had said that,

"…The consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition." (Paragraph 56)

In HH, the Supreme Court considered three cases in which it was said that to extradite the RP would be disproportionate to interference with the rights to family life, taking into account their interests and the interests of the children. The Court discharged the warrant in one case, but refused to discharge it in the other two cases (Lady Hale dissenting as to one). The judge quoted the principles Lady Hale had expressed at paragraph 8 which included her statement echoing the words of Lord Phillips that, although there was no test of exceptionality as such,

"…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."

Lord Judge compared a single mother imprisoned within the jurisdiction, after domestic legal process, and one who was subject to extradition. He observed that the domestic sentencing process would often have severe effects upon the innocent members of a criminal's family. Although the extradition process involved the proper fulfilment of international obligations rather than domestic sentencing principles (paragraph 132) perhaps the crucial difference between extradition and imprisonment within the domestic jurisdiction was that extradition involved the removal of a parent or parents out of the jurisdiction and their serving any sentence abroad whereas, to the extent that prison overcrowding permits the prison authorities to manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment in the UK where the sentence should be served. But fulfilment of international obligations remained an imperative and for the reasons explained in Norris, and ZH (Tanzania) did not diminish that imperative. He noted that,

"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.."

19. It has not been argued before me that, taking into account the domestic circumstances of the children, a Court in the UK sentencing for the offence concerned would not, or probably would not, impose an immediate custodial sentence. Nor was this argued before the judge.
20. The appellant urges that the effect on her children was nonetheless exceptionally severe, given the contents of the Social Services' report and that of Dr. Stokou: Mr Mason highlighted some of the more emphatic phrases from the reports. I agree that the effects on the three children will be severe, on the evidence before the Judge. But the Judge was aware of this too: it was the reason for his saying that the case was finely balanced. In saying that, he addressed the principles set out in HH. Though Mr. Mason argues that he should not have reached the ultimate conclusion he did, he has not demonstrated that the judge was in error in any of the principles which he drew from the judgments in that case. Ultimately, the difference between the judge's approach and that which Mr. Mason advocated came down to one of judgment as to the point at which the balance should be struck between the undoubted and significant public interest that those accused of serious crime should be tried, and the importance of honouring international obligations, on the one hand and the significant degree of interference with the best interests of the children on the other.
21. In the light of the judgments in HH, the judge was entitled to reach the conclusion he did on the evidence before him. A mark of the care he took was his careful weighing of the Article 8/Section 21A considerations, plainly troubled by the potential effect on the children. Given the terms of Section 27(3) I am unable to hold that he ought to have decided the balance differently. Subject only to Section 27(4), therefore, the appeal has to be rejected.

New Evidence

22. Garnham J. ordered on 16^th. January 2017 that permission to appeal be granted to consider the Article 14 and Section 27/Article 8 grounds, and he gave leave to the appellants to refer to a supplemental viability assessment, prepared by the London Borough of Redbridge, which had not been available at the date of the hearing before the judge, compiled by the same author as had prepared the Social Work Assessment which was before the judge.
23. At the earlier hearing there had been a suggestion that a friend of the family, Istvan Racz, could care for and support the children during the appellant's time in Hungary. The new assessment however confirmed the view which had been expressed in the Social Services report which had been before the judge at the time of the hearing, to the effect that the local authority had not identified any viable alternative care-givers within the family or friends network, and would have no other option but to accommodate the children in foster care placements if the appellant were extradited.
24. On the face of it, therefore, this would seem to offer little prospect of the judge having reached any different a decision. It confirmed, not altered, the previous position. Undaunted, though, Mr. Mason pointed to the fact that the judge had held at paragraph 29 that he could not conclude that:

"..the only possible result of their mother's extradition would be the children taken into care and possibly split up"

25. Now that it could be seen for certain that Mr. Racz would and could not be a viable care giver, he argued that the scales had shifted significantly in favour of extradition being refused.
26. Mr. dos Santos submitted that the report of November 2016 did not disturb the findings of the judge. In any event, he pointed out that foster care would in this case be temporary for the time that the appellant was absent – if, indeed, the family could not in fact be supported in Hungary as to which no evidence had been advanced below - and submitted that it was inevitable that hardship would arise from orders of extradition, especially where an appellant had children. Such hardship was no bar to extradition in itself: in this fact sensitive arena there was insufficient evidence to show that the judge was wrong in his conclusion that extradition would not impact on this appellant so much more harshly than on others subject to extradition as to re-balance the considerations under Article 8 in her favour.
27. He drew my attention to the case of Fenyvesi (The Szombathely City Court/The Sopron City Court/The Municipal Court of Szombathely (Three Hungarian Judicial Authorities) v Roland Fenyvesi Kalman Fenyvesi [2009] EWHC 231 (Admin) decided in the Divisional Court (May PQBD; Silber J) as to new evidence in extradition cases. Save for the emphasis on the strictness of the test in section 27(4), where the words require a court to be satisfied that the evidence not previously before the court "would" (not "might") have made a difference, I have not found this particularly helpful – the factual circumstances are very different, and the relevant propositions dawn from it seem to be to be obvious in any event. Apart from being reminded by the case of the strictness of the test, I have approached the issues guided by the unadorned words of the statute.
28. It is possible that the additional evidence might have persuaded the judge to draw the balance he did differently. I do not read his judgment as indicating that was likely. I certainly am unable to say it would have led to a different decision. In particular, the judge had had already considered and taken into account the conclusion of the earlier Social Services report to identical effect, and it cannot realistically be that a repeated argument is to be regarded as stronger because of its repetition. Rather, the new evidence confirmed rather than doubted what was on the face of it the position which the judge had taken into account.

Conclusion

29. Though the case, in my view, comes close to the line, I am unable to hold either that the judge ought to have decided the case differently on the material before him, or that the previously unconsidered material would have led to him making a different decision. The appeal is dismissed