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
		24 October 2018

MR JUSTICE HOLMAN:

1. The situation in this case is both very unusual and very regrettable. It concerns proceedings for the extradition of the requested person ("RP"), Georgi Lazarov, to Bulgaria pursuant to a European Arrest Warrant which was issued and certified during April 2017.
2. On a date which is not clear from the papers, the RP was convicted in his absence in Bulgaria of two offences, namely (1) growing cannabis plants between May 2011 and 28 September 2012, and (2) being in possession of numerous specified quantities of marijuana on 28 September 2012. He was sentenced to a total of three years' imprisonment. There was apparently a series of appeals by alternately the RP and the prosecution to ever higher courts. The sentence was finally fixed as one of three years' imprisonment.
3. The warrant states that the sentence became enforceable on 21 February 2017. The RP has not served any part of that sentence. He was arrested pursuant to the warrant on 22 May 2017 and the extradition proceedings, which he resists, ensued. The proceedings were heard before a senior and experienced district judge of the Westminster Magistrates' Court on 26 March 2018, and his written reasons and decision were delivered on 11 April 2018, just over two weeks later. He ordered the RP to be extradited to Bulgaria.
4. In proceedings number CO/1531/2018, the RP appealed to the High Court pursuant to sections 26 and 27 of the Extradition Act 2003, namely a statutory appeal. Permission to appeal was granted, and the substantive appeal was heard before myself on 10 October 2018. The sole pleaded ground of appeal is that, contrary to the decision of the district judge, "extradition would be a disproportionate interference with the appellant's private and family life", a ground firmly anchored in Article 8 of the European Convention on Human Rights. However, as the written, and more particularly the oral, argument unfolded on 10 October 2018, it became clear that the true essence of the appeal in this case is that the reasons of the district judge contain so many errors of fact that, viewed cumulatively, his decision cannot be said to be a decision based upon the facts of this case at all. I regret to have to say that that criticism and complaint was, in my view, amply made out. It has since been confirmed and accepted by the district judge himself, as I will later describe.
5. The typed reasons are relatively concise, occupying four sides of A4 paper (plus the cover sheet), much of it quite spaced out. Within those few pages there are the following errors:

(i) On the cover sheet of the reasons, the advocate appearing on behalf of the Judicial Authority is named as "Mr Cole". It was not Mr Cole. It was Miss Catherine Brown.

(ii) At the top of page 2 of the reasons, the offence specifically in September 2012 (in fact on 28 September) is described as "possession of cannabis". In fact, the warrant quite clearly refers (no less than 23 times) to "marijuana". Whilst the two words may be used interchangeably to describe the same drug, the word used in the warrant is "marijuana".

(iii) At a paragraph numbered 3.12 of the reasons, the district judge stated:

"The RP suggests that the sentence was suspended and accepts that he did not pay the £2,000 required of him and did not attend the rehabilitation course."

Mr David Williams, who appeared on behalf of the RP before the district judge and continues to appear on his behalf before me, assures me that none of those matters were "suggested" or in any way referred to by the RP at the hearing or in his written evidence. Further, so far as I can discern, the warrant makes no reference to any payment of (or equivalent to) £2,000 or any other sum being required, nor attendance at a rehabilitation course.

(iv) At paragraph numbered 3.13 of the reasons, the district judge stated:

"The RP came to the UK in 2016 knowing of the fact that he had not fulfilled his obligations under the terms of the sentence. When the immediate sentence was passed, he was here in England."

The RP did not come to the UK in 2016. In his written statement dated 16 August 2017, which must have been before the district judge, the RP stated (and there was nothing to contradict this), "I moved to the UK almost four years ago". Almost four years back from 16 August 2017 was the late summer or autumn of 2013, not 2016. (Although the precise date was not stated to, or in evidence before, the district judge, I am in fact satisfied that the actual date when the RP travelled to the United Kingdom was actually 9 June 2013, since he produced to me the flight e-ticket which is still stored on his mobile phone.) It is also not correct that when the immediate sentence was "passed" the RP was here in England. On the original date when the sentence was passed, he was still in Bulgaria, although it is correct that by the time all the appeals had been exhausted and the sentence finally became enforceable (viz 21 February 2017), he was here in England;

(v) At paragraph numbered 3.22 of the reasons, the district judge stated:

"The RP stands convicted and has a sentence of 1 years [sic] to serve on the EAW."

That is not correct. He still has three years to serve, as the warrant clearly states;

(vi) At paragraph numbered 3.23 of the reasons, the district judge stated:

"The RP came to the UK in September 2016 from Romania [sic] where he was born and lived since. He has been in the UK for a little longer than 18 months and whilst he has built a private life, it is not a very long period…"

The erroneous reference to Romania is the first of three erroneous references to Romania or the Romanian judicial system (see also in paragraph numbered 3.24 of the reasons). The reference to the RP coming to the UK in September 2016 repeats the earlier mistake. The consequential reference to his having been in the UK "for a little longer than 18 months" is consequentially wrong. By the time of the hearing before the district judge in late March 2018, the RP had been in the UK for at least four and a half years and, as is now established, actually about four and three-quarter years.

(vii) At paragraph numbered 3.24 of the reasons, the words as originally typed, which are still clearly visible were:

"The offences date back to 2014. They are not old."

The date "2014" has been corrected in handwriting (I presume by the district judge) to "2011/2012"; but of course the characterisation as "not old" may be affected by whether one is considering the correct period of 2011/2012 or the later incorrect date of 2014.

(viii) At paragraph numbered 3.25 of the reasons, within a section headed "Balancing in favour of extradition", the district judge states:

"The RP has no children and is a single man. I note he has no convictions here."

That is not correct. The RP's British PNC record, which is within the papers and was presumably available to the district judge, clearly shows a conviction on 15 March 2017 for an offence committed on 13 August 2016 of "causing the depositing of controlled special waste in or on land without a licence". I understand that this was "fly tipping", and it was relatively serious since the sentence was a fine of £3,500, costs of £1,233 and compensation of £500. The statement in paragraph 3.25 that "The RP has no children and is a single man" does not lie easily with the immediately following paragraph numbered 3.26, under the heading "Balancing against extradition". Here the district judge stated:

"The RP has family here. There would be emotional impact upon them all if he were extradited. This is a sad feature of many cases this court deals with."

Nothing further at all is said in elaboration of the RP's family or family circumstances, although there is a brief reference to his partner in paragraph 1 of the "Annex" to the reasons, which I understand to be the district judge's notes of the RP's oral evidence. In his written statement dated 16 August 2017, the RP had said that he lives with his partner and "we have been together for ten years". As paragraph 1 of the Annex records, the period by the time of the hearing was "a little over 11 years". The RP and his partner were thus already living together in Bulgaria and had relocated as a couple to England. The statement describes that the partner has two fully adult daughters who, however, "both live with us". One of the daughters in turn has a daughter, born in November 2015, and so aged about two and a half in April 2018, "who also lives with us". The statement continues:

"I am the only person in the household who works. No one else works, claims benefits, or has any other sources of income. All of our bills are paid with my income. If I were to be extradited, my family would struggle to get by."

There is no narrative at all in the reasons with regard to any of these facts. The district judge described the RP as "a single man". It is correct that he is not a married man; but misleading to describe as "a single man" without more, a man who has lived in a continuing partnership for 11 years and who supports the adult daughters and also a dependant young grandchild of his partner who all live together.

6. As well as these many cumulative errors or omissions, it is noticeable that the paragraph numbering in the typed reasons is somewhat awry. The paragraph numbered 3 is subdivided into 3.1, 3.11, 3.12, 3.13, 3.14, 3.15, 3.22 and then sequentially until 3.27. There are no subparagraphs 3.2 to 3.10, nor 3.16 to 3.21. This curious feature led both counsel to speculate at the hearing before me on 10 October 2018 that what had happened in this case was that the district judge had "cut and pasted" various parts of his reasons from some other case or cases and, in the process, transposed into this case facts from such other case or cases. I myself cannot indulge judicially in that speculation. I simply do not know how the many errors occurred. They may have resulted from cutting and pasting. They may have resulted from misremembering facts in the period between the hearing and the preparation of the judgment. I do not know and I must not speculate.
7. The plain fact is that, in the space of four short pages, the reasons disclose that catalogue of errors. Some of them when considered individually may of course be of little or no consequence at all. It makes no difference to the outcome whether the advocate for the Judicial Authority was Mr Cole or Miss Catherine Brown. Nevertheless, it is an error as to both the identity and even the gender of the advocate, and turns out to be the first of an accumulation of errors. Similarly, it makes no difference whether the offence in September 2012 was described as unlawful possession of cannabis or of marijuana, but it is another error. The wholly erroneous paragraph 3.12 is more significant, and at that point the district judge does not seem to be correctly recalling the facts of this case at all. The error as to the date or period when the RP came to the UK is potentially much more significant (see below), but here I merely observe that it is a clear error as to the true facts of the case under consideration, as is the statement that when the immediate sentence was passed the RP was here in England.
8. The error in paragraph 3.22 which refers to a sentence of "1 years [sic]" is of course an error favourable to the RP, since the longer the sentence the stronger is the case for extradition. But it is nevertheless a significant error on an important element of any extradition case (viz the length of the sentence). The reference to "1 years" (using the plural) is, to say the least, curious, and was a small part of counsel's reasons for speculating that a process of cut and paste may have been involved here. The three references to Romania and the Romanian judicial system are just plain wrong. It may make no difference in this particular case whether extradition to Bulgaria or to Romania is in point, but to make the same mistake not once but repeatedly in typed written reasons is, to say the least, unnerving. The statement that the RP has no convictions here is, of course, favourable to the RP, but it is wrong.
9. However they arose, there is an accumulation of errors in this case which, in my view, have the cumulative effect that the reasons simply cannot be considered as addressing the true and actual facts of this case at all. Further, two of the errors or omissions, even standing alone, are potentially of considerable significance. First, the error as to the date the RP came to the UK and consequentially the length of time he had now lived here. At paragraph 3.23 of the reasons, the district judge erroneously referred to "a little longer than 18 months", which (if correct) he justifiably described as "not a very long period". A period of almost five years is markedly longer. The length of time that the RP has lived in a settled private and family life after fleeing to the UK is always a relevant factor in extradition cases, and if it is so understated that raises a serious question as to the reliability of the district judge's overall exercise of discretion.
10. Second, the confusing treatment between paragraphs 3.25 and 3.26 of the RP's family and family status. To say that he "has no children" is true in the sense that he is not the genetic father of any child, and to say that he is "a single man" is true in the sense that he is not a married man. But, in a case in which the whole basis of the resistance to extradition was Article 8 and the interference with the RP's private and family life, the absence of any narrative about that family life (including a two-and-a-half-year-old child within it) is a serious omission. To say no more than that "there would be emotional impact upon them all" is not enough. There is no assessment at all of the extent of the emotional impact, and no consideration at all of the financial and economic impact. The RP had said in his statement that his partner, her daughters and her granddaughter all lived with him and are all wholly financially dependant upon him.
11. I wish to stress, first, that most judges, and certainly I myself, may and do make slips or minor errors of fact in the course of delivering oral ex tempore judgments. These may be corrected if the judgment is later transcribed, and it must be rare indeed (if ever) that such slips could afford any ground of appeal. Higher standards of accuracy are, however, required and expected of judgments or reasons which are typed and which should be checked before being handed down or delivered. Second, I wish to stress that I am deeply conscious of the huge pressure of work under which the judges of a court such as the Westminster Magistrates' Court are labouring. I was told that there are typically listed three substantive extradition hearings a day before a given judge, and the judge may then have to wait an appreciable time before he has any opportunity to prepare his judgment. In those high-pressure circumstances, which are not the fault or responsibility of the judges, it is small wonder if muddle or confusion may sometimes take place.
12. But having said that, and for all the above reasons in combination, this particular decision is one which cannot in justice stand. The RP faces extradition on the basis of reasons, many of which simply do not describe his case at all. The reasons are so removed from the true facts of the case and the evidence that they are tantamount to, if not actually, a nullity.
13. At this point, however, a difficulty arises. The powers of the High Court on a statutory appeal to it under section 26 of the Extradition Act 2003 are very precisely described and circumscribed by section 27 of that Act. I will not quote the section in full, but the effect of it under both subsection 27(3)(b) and subsection 27(4)(c) is that this court can only allow a statutory appeal and order the requested person's discharge if the judge below "would have been required to order the person's discharge". The word "required" is a strong word, and the effect of section 27 is that on a statutory appeal the court can only order the person's discharge if that was the only outcome which the judge below, properly directing himself, could have reached. Put colloquially, the High Court can only allow the appeal if the case could only have been properly decided one way, namely against extradition and in favour of discharge.
14. There are, however, many cases in which the decision whether or not to order extradition could quite properly, and without error, be decided either way. In my view, this is such a case. There is, on the facts and in the circumstances of this case, a good and strong case why this RP should not be extradited. But there are also good and strong reasons why he should be. I could not say, as section 27 requires, that the district judge "would have been required to order the person's discharge". But if, for that reason, I cannot allow the statutory appeal, then a serious injustice has been done. In a situation which may be relatively finely balanced for and against extradition, an order for extradition has been made on the basis of reasons which contain so many errors that they simply do not engage the true facts of the case at all.
15. It was in these circumstances that, during the course of the substantive hearing of the appeal two weeks ago, Mr Williams, on behalf of the appellant, suggested that the correct and better remedy in this most unusual case may lie in judicial review. I agreed with that suggestion, and Mr Jonathan Swain, who appears on behalf of the respondent prosecutor, felt unable to argue against it, although he was without any formal instructions.
16. Judicial review of decisions of lower courts is a very rare remedy, to be exercised very sparingly and with great caution and circumspection. I wish to stress very clearly and strongly indeed the very exceptional facts and circumstances of this case. This judgment and my decision are no warrant or precedent at all for the incursion of judicial review into the field of extradition, which has a complete statutory framework. In my view, however, judicial review, rather than a statutory appeal under section 26, does, on analysis, represent the correct remedy on the particular facts and in the particular circumstances of this case. This is not a case in which, while properly addressing the case in hand, the district judge made some error or errors of law and/or fact. It is a case in which, on proper analysis, the district judge simply did not address the facts and circumstances of this case at all, so that, as I have said, his decision is tantamount to a nullity. Justice requires that this case is reconsidered afresh and from scratch by a completely different district judge, who must be one experienced in extradition. He or she should not even read the reasons of the first district judge. He or she should exercise from scratch the difficult assessment and judgment which this case requires as to whether, balancing all the required factors, including the heavy and constant public interest in extradition, this requested person should be extradited or not.
17. To give effect to the suggestion of judicial review, the appellant issued in the Administrative Court a formal claim for judicial review (case number CO/3979/2018) towards the end of the day of the substantive hearing of the appeal two weeks ago on 10 October 2018. The claim has been served upon the Westminster Magistrates' Court, which is the defendant to it. I have added the requesting Judicial Authority in Bulgaria as an interested party. Other procedural formalities of judicial review have either been complied with or dispensed with, and the judicial review was listed for a so-called rolled-up hearing today, concurrently with the adjourned hearing of the appeal.
18. After the judicial review claim form was served upon the Westminster Magistrates' Court, a legal team manager of that court, Susan Watt, emailed to the parties and this court as follows:

"I can confirm that [the relevant district judge] accepts that he provided the incorrect judgment to the parties in the above matter. He had prepared another judgment that should have been supplied to the parties. He therefore agrees that the order should be quashed and the matter remitted back to this court..."

That email is the only information that I have from the magistrates' court. It discloses a sorry state of affairs. The error was made six months ago and has either only just come to light, or only just been accepted as a result of the issue of the claim for judicial review on 10 October 2018. At an earlier stage in the statutory appeal proceedings, a judge of this court had refused permission to appeal on paper, giving as her overall reason that "the decision is not arguably wrong and the appeal has no reasonable prospects of success accordingly". The appeal was resolutely resisted by the CPS Extradition Unit right up to, and during, the hearing before me on 10 October 2018. There was, therefore, a significant risk in this case that the appellant would be extradited on the basis of what the district judge himself now states (six months later) to have been "the incorrect judgment".

19. For the above reasons, I will now grant permission to the RP to apply, and to apply out of time, for judicial review of the reasons, decision and order of the district judge delivered and made on 11 April 2018. I will allow the claim for judicial review and I will quash the order made on 11 April 2018. I will direct that the application for extradition must be reheard and reconsidered from scratch by a different district judge, experienced in extradition. I will consequentially grant permission to the appellant to withdraw even at this late stage his statutory appeal, on the ground that the order from which he was appealing has now ceased to exist.

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