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||Neutral Citation Number:  EWHC 963 (Admin)
||Case No: CO/12981/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||15 April 2011
B e f o r e :
THE HONOURABLE MR JUSTICE SILBER
||- and -
||THE DISTRICT COURT IN TRUTNOV
THE DISTRICT COURT IN LIBEREC
(TWO CZECH JUDICIAL AUTHORITIES)
Benjamin Newton (instructed by Sonn Macmillan Walton) for the Appellant
Alison Wilkes (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 6 April 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr. Justice Silber:
- Ms B ("the appellant") appeals against an order made at the City of Westminster Magistrates Court by District Judge Nicholas Evans on 13 December 2010 acceding to the request made by the District Court in Trutnov in the Czech Republic and by the District Court in Liberec (to which in each case I will refer as "the Judicial Authority") pursuant to separate European Arrest Warrants, namely respectively EAW 1 and EAW 2 and which were issued respectively on 5 February 2010 and 10 March 2010. The requests were for the return to the Czech Republic of the appellant, who is a Czech national. The Czech Republic is a Category 1 Territory and Part I of the Extradition Act 2003 ("the Act") applies.
- The appellant raises two main issues which are that :-
i) in respect of EAW 1, the District Judge ought to have decided the questions in section 20(1) and (3) of the Act in the negative and had he done so, he would have been required to order the appellant's discharge as she was not entitled to a retrial, or to a review amounting to a retrial ("The Section 20 Issue"); and
ii) in respect of both warrants, the District Judge ought to have decided under section 21 of the Act that extradition was incompatible with the Appellant's article 8 rights and in consequence he ought then to have refused to order the appellant's extradition ("The Article 8 Issue").
- EAW 1 at section (e), specifies the following offence as follows:-
"On 18th December 2002 in Upice, district Trutnov in the shop s.r.o., POD Mestem 206 with a view to gain cash she undersigned a hire-purchase agreement on financial lease of the cooking stove Mora combi in the retail price 11 990,00 CZK without cognizance of her father. She submitted his identity card and indicated him as a guarantor. She committed herself to pay off monthly 501, 00 CZK, but she did not meet this agreement and stopped to pay the lease and so caused a damage amounting to 8 016, 00 CZK. The criminal act was accomplished.
The above mentioned caused the criminal offence of fraud according to Section 250 Art.1 of the penal code".
- EAW 1 specifies at section (c) that a custodial sentence of one year remains to be served in its entirety, while section (d), which relates to "Decision rendered in absentia" is blank, seemingly implying that this was not a conviction in absence.
- EAW 2 at section (e), specifies the following offence:-
"In Liberee, Prazska Street 13/19 on 25/07/2006 at a time around 15.35 o'clock, at DM market s.r.o. shop acting together with already sentenced Blanka Hermanova, born 31/03/1975 and Kamila Piskorova, born 22/01/1976 stole from shelves drug goods in an amount of CZK 30,841.00 in a way that they hid goods into their handbags and under their clothes subsequently they went through cash desks without paying.
Crime of theft under section 247 sub-section 1 par. E) sub-section 2 of the Act no. 140/1961 Sb. The Criminal Code of the Czech Republic with reference to section 89 sub-section 11 of the Act no. 140/1961 SB. The Criminal Code of the Czech Republic…
[followed by provisions 247,89 and 68]".
- The warrant specifies at section (c) that a custodial sentence of eight months remains to be served in its entirety and at section (d) that "after being surrendered the sentenced person will have the right to having a new trial in her presence."
- The chronology of the proceedings is that on 22 December 2005, a judge sitting in the District Court in Trutnov issued a penal order in respect of the offence in EAW 1. The appellant was sentenced to a term of one year's imprisonment, which was suspended for five years with supervision by Probation but she was not then present at the hearing. This order was variously described as "penal order", a "criminal order" or an "arrest order" depending on the source of the information.
- On 17 March 2006, the penal order was according to the Judicial Authority served on the appellant and she signed to accept it although this has been disputed by the appellant and I will return to consider this issue in paragraphs 33 and 34 below. As the appellant chose not to exercise her right to have the order set aside, it became fully enforceable on 28 March 2006.
- In respect of EAW 2, the appellant after arrest was interrogated before pleading guilty to this offence. On 10 October 2006, she was given a penal order.
- The public prosecutor challenged the decision and a court hearing was ordered and this took place on 13 October 2008 when the criminal order was nullified. The appellant could not be found to have the summons served on her as she was not residing at the address known to the court. On 17 January 2009, a search was ordered for her.
- Meanwhile in respect of the first warrant, the appellant did not fulfil her obligations in the period of suspension. On 2 February 2009, the court decided to revoke the suspension of her imprisonment but she was not present as her whereabouts were not known. In consequence it was impossible to serve a summons on her and so the proceedings were therefore against a fugitive but she was legally represented. At the hearing on 2 February 2009, the one year sentence of imprisonment imposed on the appellant became enforceable.
- On 12 February 2009, the court dealing with the second warrant was notified the appellant was staying in the United Kingdom. A hearing took place on 24 September 2009 in her absence. She was convicted and a sentence of eight months imprisonment was imposed.
- On 10 March 2010, the District Court at Trutnov issued a warrant in respect of the first offence seeking the appellant's return to serve one year's imprisonment. On 13 July 2010, the District Court in Liberec issued a warrant in respect of the second offence seeking the appellants return to serve eight months imprisonment.
- Moving to the proceedings in the United Kingdom, EAW 1 was certified by SOCA on 9 June 2010 and the appellant was arrested on 10 July 2010 in respect of it. When she appeared before the City of Westminster Magistrates Court on 12 July 2010 for an initial hearing, the defence identified four issues which the appellant wished to raise in opposition to the Judicial Authority's extradition request, namely section 14 of the Act (passage of time), section 20 of the Act (conviction in absence), abuse of process (because the warrant should not have been used to enforce the loan) and the triviality of the offences. She was then released on bail and the hearing was adjourned until 24 August 2010, when it was then adjourned again this time to 22 September 2010.
- EAW 2 was certified by SOCA on 22 September 2010 and the appellant was arrested in relation to it at the hearing on 23 September 2010. The extradition hearing in respect of both matters was adjourned until 4 October 2010, when there was a full hearing in respect of the section 20 and article 8 issues with the appellant giving evidence. The hearing was adjourned to allow further evidence to be presented.
- On 29 October 2010, further evidence was served on the court by the relevant Judicial Authority and the next hearing was on 13 December 2010, when there were further brief arguments before the District Judge then gave judgment ordering the appellant's extradition to the Czech Republic.
- In summary form, the District Judge found first that in respect of EAW 1, the appellant was not present when the penal order was made on 22 December 2005; second that the penal order was of no effect unless and until it was served on the appellant; and third that it only became a conviction when a defendant had been served with it and did not lodge an objection to it. In the appellant's case, she was convicted when she accepted the penal order on 17 or 28 March 2005 and/or alternatively by her failure to oppose the penal order. The District Judge then stated of the appellant that "either way, for the purposes of section 20(1) [of the Act], I conclude she was convicted in her presence".
- The District Judge rejected the claim of the appellant that an order extraditing her to the Czech Republic would be incompatible with her rights under article 8 of the ECHR with the consequence that extradition should not be ordered. He duly ordered the appellant's extradition and this is the hearing of her appeal against that order.
II. The Section 20 Issue
(i) Introduction and the Sub-Issues
- The case for the appellant is that there are two grounds for quashing the District Judge's decision not to discharge the appellant on EAW 1 both of which depend on section 20 of the Act. They are that:-
(a) the appellant had not been convicted in her presence. The Judicial Authority has not pursued its alternative contention that the appellant was deliberately absent when convicted; and that
(b) although the Judicial Authority had to prove to the criminal standard of proof that the appellant was served with the penal order, they failed to do so.
- The relevant provisions of section 20 state that:-
"(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative, he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".
(ii) The decision of the District Judge
- The District Judge dealt with the section 20 issue in relation to EAW 1 by explaining the local applicable criminal procedure when he stated that:-
"4. As I understand the process if during the pre-trial investigation the suspect admits guilt to the prosecutor and the case may possibly be disposed of by one of a range of "minor" penalties, the papers can be put before a judge who, if s/he feels s/he can fix an appropriate punishment within the limited range, can then make a penal order. Such an order has the nature of a guilty verdict even though there has been no "trial" see section 314e(5).
5. By section 314f(d) it is a requirement that the penal order shall be delivered to the accused person. Unless and until that happens it has no effect. By section 314g the accused person has the right to raise an objection against the penal order, and if any such objection is made the penal order is cancelled and the case is returned to the ordinary criminal process and would then result in a criminal trial… That means a defendant has a choice either to accept the guilty verdict and the punishment imposed i.e. accept the penal order, or ask for the standard procedure to apply which would then include a hearing at court."
- He the summarised the evidence in this way:-
"6. The penal order was delivered to the defendant on 17th March 2006 and she has apparently signed a receipt for it. In the additional information provided by the JA on 15th October 2010 it says "The penal order was delivered (to) her by the judicial guard of the District of Trutnov namely on 17 March 2006, as it was confirmed by her signature". She had eight days in which to lodge an objection. No objection was lodged. The penal order accordingly became effective and enforceable on 28th March 2006. She has no right now to seek a retrial or review amounting to a retrial. In the defendant's latest statement prepared for these proceedings and supplied to me three days ago, she maintains her account that she never received the penal order and never signed a receipt for one….
11. At the extradition hearing the defendant gave evidence. She told me that, although she was arrested and questioned by the police in relation to the cooking stove, she was never accused of having committed any offence let alone charged. She was unaware of any investigation. In the light of the new information provided by the JA and notwithstanding the defendant's maintained assertions to the contrary I am satisfied the penal order was properly served on her".
- The District Judge concluded that :-
"7. For the purposes of section 20 she was not physically present when the penal order was made on 22nd December 2005. As a penal order is of no effect unless and until it is served on the defendant, and only then does it become a conviction if the defendant decides not to lodge an objection to it, then it is the defendant's act of accepting it and not electing for the standard procedure which transforms the penal order into a conviction. On that analysis one could say the defendant was convicted on 17th or (perhaps 26th March) by her acceptance of the penal order or alternatively, her acceptance of and her failure to oppose the penal order confirms the conviction on 22nd December 2005. Either way, for the purposes of section 20(1), I conclude that she was convicted in her presence. A similar situation, involving a criminal order in Roman Puzo v District Court Kladno  EWHC 3056 (Admin) see paragraph 9 in particular".
- It is established and common ground that the burden of proof in relation to section 20 issues rests with the requesting judicial authority to the criminal standard (see Murtati v Albania  EWHC 2856 and Benko v Hungary  EWHC 3530).
(iii) Was the appellant convicted in her presence?
- The case for the appellant is first that she was not convicted in her presence, that she did not deliberately absent herself from a trial and second that she would not be entitled to a trial or a review amounting to a retrial with the result that she should be discharged pursuant to section 20(7) of the Act.
- Miss Alison Wilkes counsel for the Judicial Authority does not challenge the contention that the appellant would not be entitled to a retrial if returned. Instead she contends that the appellant was convicted in her presence and that this occurred when she accepted the criminal order in March 2006 or when she failed to oppose it.
- At first sight, it seems strange to an English lawyer to regard a conviction as arising not when the decision is made in court to that effect but that instead it occurs when a penal order is accepted or when a defendant fails to take some step. Such an approach would fail to appreciate two important matters.
- First, it has to be recognised that other countries have different legal process from those in this country but the main principle in approaching foreign convictions is that:-
"A trial is a legal process whereby guilt or innocence is to be decided. In my judgment, that must mean the process which results in a final determination. Thus 'trial' in section 20(3) of the Act should be construed accordingly and it will be necessary to investigate the system in the requesting State." (per Collins J in Atkinson and another v Supreme Court of the Republic of Cyprus  1WLR570 ).
- Second, the information provided by the Judicial Authority on 15 October 2010 shows first that a penal order has "a nature of a guilty verdict", second that the penal order was delivered to the appellant on 17 March 2006; third that the appellant had the right to raise an objection against the penal order within 8 days but the appellant did not do so; and fourth that in consequence and in the absence of a motion for a new trial, the penal order became enforceable because the appellant "has no right to raise an ordinary judicial remedy on any account".
- Third, under article 1 of the Framework Direction, the EAW is a judicial decision issued by the requesting State, which this country must, subject to the provisions of the Decision, execute on the basis of mutual recognition. As Lord Bingham explained in Caldarelli v Judge for Preliminary Investigations of the Court of Naples  1 WLR 1724 "24…ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer". In this case the evidence set out in paragraphs 7 to 13 above was supplied by a foreign judge and so I must and do accept it as accurate.
- Fourth, as it was the delivery of the penal order to the appellant on 17 March 2006 and her failure to raise an objection which amounted to a conviction, the appellant would be regarded as having been present when this occurred.
- It follows that the appeal on this ground fails.
(iv) Has the Judicial Authority discharged the burden of proof that the appellant received and signed for the penal order?
- Mr. Benjamin Newton, counsel for the appellant, contends that the Judicial Authority failed to discharge the burden of proof on this issue as the penal order signed by the appellant has not been adduced in evidence. That is correct but the District Judge had acceptable evidence in the form of the statement from the Judicial Authority stating the penal order had been signed for by the appellant because section 202(2) and (4) of the Act enables any document authenticated in a Part 1 territory to be received in evidence if duly authenticated in that it was signed by a judge of the territory.
- Furthermore, the District Judge had heard the appellant give evidence and he obviously disbelieved her. Thus the District Judge was entitled to conclude on the basis of information supplied by the Judicial Authority and signed by a judge of that territory that that the appellant had received and signed for the penal order and that she was convicted in her presence. Accordingly, it follows that on the basis of section 21(1) of the Act, the appellant must be extradited unless she succeeds on her Article 8 claim.
- For the purpose of completeness, I should explain that I have not taken into consideration two matters raised by Miss Wilkes. First, she sought to adduce some further evidence which was not before the District Judge but it is unnecessary for me to decide if it was admissible in the light of my other findings, but I suspect that she might have had difficulties in the light of the decision and reasoning in The Szombathely City Court and others v Fenyvesi and Fenyvesi  EWHC 231(Admin)  and .
- Second, it was suggested by Miss Wilkes the Judicial Authority can rely on the European Council's Amendment to the Framework Decision of 26 February 2009 but in the light of my conclusions, it is unnecessary to deal with this point. I again suspect that Miss Wilkes might have had problems as the EAWs in this case were not in the form required by the Amendment to the Framework Decision.
III. Article 8 Issue
- The appellant contends that she should not be extradited because to do so would infringe her children's article 8 rights and so she can rely on section 21 of the Act which provides that: -
"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.
(4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory.
(5)If the judge remands the person in custody he may later grant bail".
- At paragraphs 15 to 16 of his judgment, the District Judge reviewed the evidence submitted on behalf of the appellant, which showed that:-
a) She is a single mother of four children aged 9 years, 5 years, 3 years and 2 years;
b) Her estranged husband is willing to look after the children whilst the appellant is away from the United Kingdom;
c) There will be adverse effects on the children following on the separation caused by any extradition of the appellant and reference was made to two published papers on the effect of parental incarceration on attachment and separation in young children; and that
d) The offences are said to be "trivial".
- The District Judge reminded himself of the case of Norris v Government of United States of America  2 WLR 572 and he then concluded that:-
"17. ..there is nothing out of the ordinary or exceptionally serious in the consequences that extradition would have for this appellant".
- He accordingly rejected the argument that the appellant's article 8 rights barred her removal.
(ii) The Submissions
- In his submissions, Mr Newton conceded that the circumstances in which an Article 8 claim can prevent an order for extradition being made will be rare and that the burden in this case would rest on the appellant. Nevertheless, he contends that all the early authorities relating to the problems of relying on article 8 where children are involved must now be reconsidered in the light of the recent decision of the Supreme Court in ZH (Tanzania) v Secretary of State  2 WLR 148. Before considering this submission, it is appropriate to set out some of the appellant's evidence relating to the consequences to her family if she is extradited.
- There was evidence that the District Judge accepted in objective reports, which showed the adverse consequences that the appellant's children would suffer if she were to be extradited and incarcerated abroad. Indeed in her witness statement, the appellant explains the effect that the extradition proceedings have had on her eldest child who she says knows about the current situation and who is very upset by it.
- The appellant explained that there are further serious difficulties because the appellant's estranged husband who is also a Slovak would not be able to work if he had to look after their children. That would mean as a citizen of one of the eight 2004 accession countries, he would not have the right to reside if he was not economically active nor therefore would he retain entitlement to child benefits. Thus it is said by Mr. Newton that the consequence of the appellant's extradition could be first that the children would not only be separated from their mother but in addition, they might have to leave the United Kingdom for the period that she was serving her sentence and second that this would cause her elder children to have to come out of school where they had been progressing for the last four years.
- Mr. Newton also says that the offences specified in the EAWs are of no great gravity and this is a factor, which shows that extradition is not appropriate.
(iii) Has ZH (Tanzania) v Secretary of State affected the article 8 rights of a person who has young children and who is the subject of an extradition request?
- It is appropriate now to consider whether Mr. Newton is correct in contending that ZH changes the way in which article 8 claims can be dealt with in extradition cases. The issue in ZH related to the weight to be attached to the best interests of children where there was a decision to move or deport one or both parents, and, in particular, where the dependent children were British citizens.
- Mr. Newton pointed out that in that case, Baroness Hale of Richmond JSC who gave the leading speech with which other members of the Court agreed explained that:-
"33...In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that."
- Similar observations were made by other members of the Supreme Court with Lord Hope of Craighead DPJSC explaining that: -
"…It would be wrong in principle to devalue what is in [the children's] best interest by something for which they could in no way be held to be responsible".
- Similarly Lord Kerr of Tonanghmore JSC said that: -
"...Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them".
- The ZH case was a case concerning immigration control but the importance of the consequences to family of extradition were considered by Lord Phillips of Worth Matravers PSC, who stated in the Norris case in relation to family members that: -
"64. After considering the Strasbourg jurisprudence the House concluded [in the previous case of Beoku-Betts v Secretary of State] that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition".
- Baroness Hale, with whose speech in ZH the other members of the Supreme Court agreed, considered the consequences to the children of the removal of a mother who had no right under immigration law to remain in the United Kingdom. She drew a distinction between two types of cases namely:-
a) Those in which long-term residents of the United Kingdom have committed a crime in which case the proportionality exercise would be subject to consideration of the interest of the prevention of disorder and crime. The relevant factors would include those set out in Boultif v Switzerland (2001) 33 EHRR 1179 9 ; and
b) Cases which arise in the ordinary immigration context where a person is to be removed because he or she has no right to be or to remain in this country and different factors would be applicable .
- What is significant is that a third class of case dealing with extradition was not considered and that is not surprising because that was not the issue which arose on that appeal. Furthermore, it is clear that many important cases on the impact of article 8 on extradition cases and in particular the landmark case of Norris were not considered or apparently not even referred to.
- This is not surprising because earlier in the year in which the Supreme Court had heard ZH, they had decided Norris in which Lord Phillips of Worth Matravers PSC had explained in respect of a submission that when considering the impact of article 8, the court should adopt a similar approach in extradition cases such as that to be adopted in the case of deportation or expulsion he said that: -
"The public interest in extraditing a person to be tried for an alleged crime is of a different order from the public interest in deporting or removing from this country an alien who has been convicted of a crime and who has served his sentence for it, or whose presence here is for some other reason not acceptable"  and that:-
"...It is certainly not right to equate extradition with expulsion or deportation in this context" .
- The reasons for that were that the background to an extradition is the need for international reciprocity to punish criminals and not to permit fugitives from justice to avoid the consequences of their conduct by fleeing to another country. Lord Phillips explained the position in different passages in his speech when he stated that:-
(a) "52 It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention to dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial, and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his article 8 rights by way of challenge to remand in custody or imprisonment– see R (P) v Secretary of State of the Home Department  EWCA Civ 1151,  1 WLR 2002, para 79, for discussion of such circumstances. Normally it is treated as axiomatic that the interference with article 8 rights consequent upon detention is proportionate"; and that
(b) "The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. …I can see no reason why the District Judge should not, when considering a challenge to extradition founded on article 8, explain his rejection of such a challenge, where appropriate, by remarking that there was nothing out of the ordinary or exceptional in the consequences that extradition would have for the family life of the person resisting extradition. 'Exceptional circumstances' is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition"
- Similar views were expressed by other members of the Supreme Court in that:-
(a) Lord Hope of Craighead DPSC stated that "91…. ..I agree with Lord Phillips that the reality is that it is only if some exceptionally compelling feature, or combination of features, is present that the interference with the article 8 right that results from extradition will fail to meet the test of proportionality";
(b) Lord Browne of Eaton-under-Heywood JSC said that "95. ...it will be only in the rarest cases that article 8 will be capable of being successfully invoked [to resist extradition]".
(c) Lord Collins of Mapesbury JSC stated "130... It is inherent in the extradition of a citizen of the requested state that it is almost certain to involve an interference with family life, and that it is why it has been said that it is only in exceptional circumstances that extradition to face trial for serious offences in the requesting state would be an unjustified or disproportionate interference with family life"; and that
(d) Lord Kerr of Tonaghmore JSC said that "136. ... it is entirely possible to recognise that article 8 claims are only likely to overcome the imperative of extradition in the rarest of cases without articulating an exceptionality test ... The essential point is that such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any article 8 argument. This merely reflects the expectation of what will happen. It does not erect an exceptionality hurdle." (emphasis in the original).
- It is clear that the approach of the courts to article 8 rights has to be radically different in extradition cases from what it is in deportation or immigration cases because of the very important obligation of the State to ensure that those who are to be investigated, prosecuted or imprisoned for criminal offences are returned to those countries. This is fortified by the Council Framework Decision of 13 June 2002, which led to the Act being passed. The purpose of the Framework Decision is to impose on Member States, such as the United Kingdom an obligation under article 1(2) to execute any EAW on the basis of mutual obligations.
- This factor relating to the obligation of the State to return fugitives from justice is not present in deportation cases or immigration cases. Therefore decisions on article 8 rights in those areas are of no real relevance in extradition cases where the need to extradite fugitives from justices almost invariably out weighs the article 8 rights of the person sought to be extradited. This leads to the inevitable conclusion that ZH does not alter the existing law in relation to article 8 claims barring extradition orders to the effect that unlike in cases of deportation and challenges to removal by those who have no right to remain here, the circumstances in which it would not be proportionate to remove a person subject to an extradition request for Article 8 reasons would be rare because of the high threshold set in Norris as I have explained in paragraphs 52 to 54 above.
(iv) Do the article 8 rights of the claimant and her family constitute a bar to her extradition?
- It is appropriate to consider whether this is a case in which in spite of the approach adopted in Norris, the article 8 rights of the claimant and her family constitute a bar to her extradition. Lord Phillips noted in Norris  that there was no reported case in which an extradition request has been refused on the basis that complying with the request would infringe the article 8 rights of the person subject to the extradition request or those of his or her family. Counsel in the present case, who have substantial knowledge and experience in this area have been unable to find a reported decision where article 8 rights of a requested person's children have barred an extradition although Mr. Newton knows of a decision of a District Judge to that effect (Court of Appeal of Douai ... A French Judicial Authority) v Dora Addo (6 July 2010). There are a number of cases in which article 8 rights have been accepted as constituting a bar to removal (see, for example, Jansons v Latvia  EWHC 1845 (Admin); The Government of Lithuania v AI  EWHC 2299(Admin) and Wysocki v Polish Judicial Authority  EWHC 3430 (Admin)) but both counsel accept that these cases are very different from the present case and are of no assistance.
- In Norris, Lord Phillips explained that he had tried to envisage a case in which interference with Article 8 might prevent extradition and he then stated that:-
"I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act" .
- As I will now show, a study of the authorities show that the high threshold required for permitting Article 8 considerations to bar removal means that it is rare that they bar removal even when the extraditee is the sole or main carer for young children.
- In A v CPS on behalf of the Republic of Croatia  EWHC 918 (Admin), the Croatian authorities sought the extradition of the appellant for an offence of theft and another offence of using a false passport. It was submitted that extradition would contravene the appellant's article 8 rights and that it would be disproportionate to extradite him because the appellant's wife whom he met in England suffered from mental health difficulties so that the presence of the appellant was essential for the upbringing of their son who was 10 years of age. The Divisional Court rejected an appeal from a decision of a District Judge who held that it was proportionate to order extradition notwithstanding the article 8 rights of the claimant and her family.
- In R (C) v The Circuit Court in Poznan Poland  EWHC 2262 (Admin), this Court upheld a decision of the District Judge who had ordered the extradition to Poland of the appellant who had been convicted and sentenced on five counts of burglary in circumstances in which there would be a relapse in the behaviour of her eight year old son and other emotional problems would arise if the appellant was extradited. It was held that the appellant's case did not fall into the exceptional category identified in Norris. Cranston J said "as Norris made clear, the circumstances will be very rare so as to make extradition disproportionate under Article 8" .
- Finally in R (Balog) v Judicial Authority of the Slovak Republic  EWHC 2567 (Admin), Blake J dismissed an appeal by an appellant from an order that he be extradited to the Slovak Republic in connection with an offence of making a threat to kill his wife. One of the grounds of appeal was that the effect on the appellant's wife and six children of the return of the appellant to face trial and if convicted to serve a sentence in Slovakia. The judge accepted that the appellant's wife could not expect to be economically self-sufficient, to pay the rent and to support her family and to be able to remain in the United Kingdom. There was a dispute as to what the precise consequences would be for the appellant's family if he were to be extradited but Blake J held that they would not constitute a bar to removal.
- These cases show the high threshold for refusing to order extradition because family factors make it disproportionate to do so. Returning to the facts of this case, I readily accept that there will be serious difficulties for the appellant's children if she were to be extradited but, as has been frequently said, this is an inevitable consequence of imprisonment especially if it is to take place in a different country. The point made is that the appellant's husband, as sole carer of four young children and one shortly to be born, would not be able to work, and as a citizen of one of the eight 2004 accession countries he would not have a right to reside if he was not economically active and nor would he retain entitlement to child benefits.
- Thus the consequence of the appellant's extradition could well be the children would not only be separated from their mother but they might well have to leave the United Kingdom for the period when she was serving her sentence. This would cause the elder children to have to come out of schools where they had been progressing.
- Mr. Newton contended that these were offences of no great gravity and that showed why it would not be proportionate to order extradition. It is true that Lord Phillips explained in Norris that in considering whether to extradite an individual:-
"…the judge must have regard to the relevant features of the individual case. It is at this point that it is legitimate for the judge to consider whether there are any relevant features that are unusually or exceptionally compelling. In the absence of such features, the consideration is likely to be relatively brief. If, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity or lack of gravity, of the offence may be material." 
- In my view, this appellant committed serious offences. In respect of the first offence covered by EAW 1, she dishonestly used her father as a guarantor by submitting his identity card thereby causing loss to her victims. EAW 2 relates to sophisticated shoplifting of goods worth more than £1000.
- Mr. Newton also ingeniously seeks to derive assistance from the case of Joanne Mills  EWCA Crim 26 in which it was held by the Court of Appeal (Criminal Division) that custodial sentences should be avoided for mothers of young children, who had been convicted of dishonesty offences. It does not matter in an extradition case that an appellant would not or might not have received a custodial sentence in this country although it is very likely that she would have received one in the light of the nature of her repeat offending. The critically important critical factor is the Framework Directive, which militates strongly in favour of ordering extradition. The statements made in Norris, which I have quoted in paragraphs 52 to 54 above, stress the great importance attached to ensuring that arrest warrants from other countries with whom we have treaty obligations are respected and given proper weight.
(iv) Conclusions on Article 8 Issues
- I appreciate the serious adverse consequences for the claimant's children and for her estranged husband if she was to be extradited but they are no worse than the consequences for many parents, who have to be extradited leaving children in this country. Nevertheless, the evidence adduced by the appellant fails to show that it would not be proportionate to extradite her in the light of the high threshold set in Norris.
- The appeal fails as the District judge's reasoning and decision cannot be faulted. Unless either counsel makes any submissions to the contrary, I propose to order that:-
(a) The appeal is dismissed;
(b) There shall be no order for costs save that there shall be a detailed assessment of the appellant's publicly funded costs; and that
(c) Pursuant to section 39 of the Children and Young Persons Act 1933, no report of the proceedings or this judgment shall refer to the appellant or her family by name and the appellant shall be referred to as "B".
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