England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/05/2014

1. This is an appeal against the extradition order made by District Judge John Zani at Westminster Magistrates Court on 15th August 2013. The order was made pursuant to a European Arrest Warrant issued by the Regional Court in Poznan in connection with the Appellant's conviction for the misappropriation of PLN 33,837 which were paid by customers to her employer in repayment of loans which had been made to the customers. At today's exchange rate the total was equivalent to about £6,000.
2. The offence or offences were committed between October 2005 and November 2006. The Appellant was convicted in June 2007 and sentenced to 2 years imprisonment suspended for 5 years. Execution of the sentence was ordered in February 2011. The EAW was issued by the Polish Court in June 2012. It was certified by the Serious Organised Crime Agency on 5th September 2012. The Appellant was arrested on 28th November 2012. The substantive extradition hearing began on 13th June 2013. It was adjourned part heard to 23rd July 2013 by which time further information (dated 21st June 2013) had been received from the Polish authorities.
3. The sole ground of appeal is that the District Judge ought to have ordered the Appellant's discharge because her extradition would be contrary to the rights to private and family life of her and her children under Article 8 of the European Convention on Human Rights.
4. The Appellant married PB in 1995. They had three children. They separated and were divorced in 2010. Two of these children live with their father in Poland and have not featured in the present proceedings. The third, a son, was born on 19th October 2007. I will refer to him as AnB. He came with his mother when she moved to the UK in 2011.
5. The Appellant said in evidence to the District Judge that she had paid back part of the losses caused by her thefts or frauds (as she was required by the terms of her suspended sentence to do). She said that she was waiting for further instructions from her probation officer as to the balance. She said she called her probation officer from London and was told that the case was closed. She said that she was not told the suspended sentence had been activated. The District Judge observed that there was no corroboration for any part of this account.
6. The Appellant began a relationship with another man, PC, and they lived together in London. PC and the Appellant had a daughter born on 6th January 2012 whom I will to as AlB.
7. In her evidence to the District Judge AB said that her relationship with PC was strong and close, but, as the District Judge observed, "it had not been without its difficulties". PC developed an alcohol dependency. The police were called twice because of AB's allegations that she had been assaulted by PC. On one occasion he was arrested, but AB chose not to press charges. Social Services also became involved. A child protection plan was put in place, but it was discharged in December 2012.
8. An inevitable and important question canvassed before the District Judge was what was to happen to AnB and AlB if the Appellant was extradited. The District Judge had written and oral evidence from Joanna Beazley Richards, a Registered Clinical Psychologist, a Chartered Psychologist and a Registered Psychotherapist. She thought that AnB demonstrated signs of troublesome insecurity and emotional instability. She thought he was already at risk of having behavioural difficulties later in life (because of his unsettled family background), but that these would be exacerbated if he was separated from his mother. Ms Richards thought that separation from her mother would be severely detrimental for AlB. AnB and AlB had a close relationship and if they were to be separated from each other that might well have serious and long lasting consequences. PC (like the Appellant) had a history of self harm and exhibited moderate symptoms of anxiety and depression. This together with signs of alcohol abuse meant that it was uncertain how he would be able to cope looking after the two young children if the Appellant was to be extradited. PC gave evidence before the District Judge. He denied having a problem with alcohol. While he agreed that the Appellant had been the primary carer of the children, he said he was willing and able to look after them if she was extradited.
9. I have mentioned that in the interval between the two hearings, the Judicial Authority provided further information. Among other things, this said:

a) A person with sole care of a child could ask for sentence to be deferred for up to 3 years after the child's birth.

b) a convicted person could be granted release on temporary licence for important personal or family circumstances.

c) breastfeeding women would be given specialist care.

d) in chosen prisons on a mother's request, children could stay with them in these facilities up to the age of 3, unless parental or health circumstances, confirmed by an expert opinion of a medical officer or psychologist dictate that the child should be taken away from the mother, or that the term should be shortened or lengthened. Decisions on these matters required the approval of a family court.

10. The District Judge's conclusions can be summarised as follows:

a) The Appellant had committed serious offences involving a breach of the trust placed in her by both her employers and customers who relied on her to credit properly their accounts. The offence would have attracted a prison sentence had the offences occurred in England, although it was a matter of speculation as to whether it would have been suspended.

b) The Appellant had been given a chance in Poland since the sentence had been suspended there. It was the Appellant's own fault that the terms of the suspension had been broken and in consequence the sentence was activated.

c) There were arrangements in place for the children to be looked after by PC. Alternatively, AnB could remain with his step-father and AlB could travel with her mother to Poland. Social Services were aware of the family and could, if necessary, become involved again.

d) This was not a case where extradition would violate the Appellant's human rights.

11. On 20th November 2013 Collins J. adjourned the hearing of this appeal to allow the local authority to produce a report on the children. This was not finalised until March 2014. It reported that there had been further incidents of domestic violence by PC on the Appellant and following some of these the police had again been called. PC no longer lives with the Appellant although he visits the children weekly. He continues to drink alcohol regularly, particularly at the weekends and was not willing to accept professional help in this regard. The social worker who prepared the report considered that PC would be unable to meet the emotional needs of AnB because of the poor relationship which currently existed between them. The social worker thought that, if AnB and AlB were left in PC's care after the Appellant's extradition, an updated assessment would be needed to decide whether safeguarding intervention was necessary to keep the children safe.
12. In her further updating statement of 4th April 2014 the Appellant says that presently she does not want PC living with her and the children, although she would not rule it out in the future. Such equivocation is far from unusual.
13. The Supreme Court has recently considered the proper approach where extradition is resisted on the grounds there would be a violation of the right to family life because of the impact on children in H (H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338. I have considered and applied those principles. Notably, the best interests of children are a primary consideration. They are not the only consideration and a competing factor of substantial weight is the importance of giving effect to extradition arrangements. Parental responsibilities are not a trump card. After all, in the domestic sentencing context, they do not guarantee a non-custodial disposal. Extradition may involve an extra, international, element to the separation, but as Lord Judge CJ said at [132], it would only be in very rare circumstances that extradition could be avoided if, on the same facts, a domestic court would pass a sentence of immediate imprisonment.
14. Plainly, all the circumstances of the case have to be considered. The combination of one case is very unlikely to be matched by another. That is why the citation of authorities to demonstrate how the court has reacted to one set of facts is unlikely to be helpful because the facts in the case under consideration are almost certainly going to differ and a score card of differences and similarities is not usually a fruitful exercise.
15. In this case, Mr Hearn is entitled to say that the offences committed by the Appellant were not trivial. They continued over a substantial period of time. The total losses were considerable and the Appellant had acted in breach of trust towards her employer. On the other hand, this is not the type of offence contemplated by Lord Judge. The Guideline from the Sentencing Guidelines Council for a series of frauds with even these features recommends a starting point of 6 weeks custody (based on losses of twice the amount in question here) and a range of community order to 28 weeks. Thus it could not be assumed that the equivalent offence committed in this country would have attracted a sentence of imprisonment, still less one of immediate imprisonment.
16. Mr Hearn is also right to say that the sentence imposed in Poland was, initially, one which was suspended and what is now sought to be enforced is the activation of that sentence. The EAW system does not require the Judicial Authority to explain the circumstances which led to the activation of the sentence and they did not do so here. However, absent that explanation, I am not sure that it is fair to say that the Appellant was therefore the author of her own misfortune. We do not know, for instance, as Mr Hearn accepted, whether the Polish court would have examined whether the Appellant's failure to pay compensation as she had been ordered was wilful or whether it was the simple failure to pay (irrespective of her means) which triggered the activation of the sentence of imprisonment.
17. The District Judge cast no doubt on the evidence of Ms Richards. He accepted that this was a sad case which would inevitably lead to hardship if extradition was ordered. However, he contemplated two alternative ways in which the harm to the children could be mitigated. One was if they were both looked after by PC. The other was if AnB stayed with PC and AlB returned with the Appellant to Poland and took advantage of accommodation in a mother and child unit. Unfortunately, subsequent events have meant that neither alternative offers much comfort.
18. PC continued to drink and to be violent towards the Appellant. The police have been involved on further occasions. For the time being, at least, the couple are separated. The Appellant is effectively the sole carer of the two children. Relations between PC and AnB have soured. The local authority has clearly indicated its concerns from a child safety point of view if PC were to look after the two children following the Appellant's extradition.
19. Ms Westcott submits the District Judge was rather optimistic to assume that AlB would be able to join her mother in prison. There is, apparently, such a facility only in certain prisons. It may be that a decision of a Polish family court is also a necessary pre-requisite and, even if that was eventually favourable, there would be the practical issues of how to arrange AlB's transportation and the engagement of the Polish authorities. Furthermore, this alternative would involve the separation of AnB from his sister and the harm which Ms Richards said that would cause to both children. But, whatever was the position in August 2013 when the District Judge made his decision, time has now marched on. AlB will be 3 in January 2015. The further information from the Polish authorities suggests that she will not (or at least not normally) be able to stay with her mother in prison beyond that age. The Appellant will have another 6 months to serve beyond that time before she is eligible to apply for discretionary conditional release. So this alternative would seem to entail considerable disruption for AlB and greatly heighten the prospect of harm to which Ms Richards thought she would be exposed if the Appellant was extradited.
20. Mr Hearn submitted that the children were on the radar of the local authority and, failing all else, would be looked after by them. This is not an alternative which the District Judge mentioned and, it seems to me, for good reason. There are, no doubt, some offences which are so serious that the adverse consequences of taking children into care have to be accepted, but the crimes committed by the Appellant were not, in my judgment, in that league. The possibility of a temporary deferral of the Appellant's prison sentence (to which the further information alludes) will not be of much help since there is no sign that satisfactory alternative arrangements for the children could be found within a reasonable time. It is also of some relevance, as Ms Westcott submits, that the Appellant has committed no further offences either in this country or, so far as is known, in Poland after the frauds came to an end in 2006. I note also that Blake J. in Matuszewski v Regional Court in Radom, Poland [2014] EWHC 357 (Admin) took account of the absence of any prosecutorial discretion not to apply for an EAW. The remaining sentence in the present case is longer than it was in that one, but the point remains that the onus of judging proportionality falls therefore on this court.
21. Overall, I agree with Ms Westcott. What was a finely balanced decision when the matter was before the District Judge has now tilted decisively in favour of allowing the Appellant to continue to look after her two children. I acknowledge, of course, the important public interest in implementing extradition arrangements, but this is a case where the harmful impact on the family lives of AnB and AlB would not be proportionate. In other words the interference with their family lives would not be necessary in a democratic society, even though it would be in pursuit of a legitimate aim. Theirs and the Appellant's rights under Article 8 of the European Convention on Human Rights would be violated if she were extradited and, accordingly, the appeal should be allowed and she will be discharged.