Scuka v Governor of HM Prison Brixton & Anor [2003] EWHC 544 (Admin)

CO/2121/2002 and CO/5717/2002[2003] EWHC 544 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 28th February 2003
Strand
London WC2
B E F O R E:
LADY JUSTICE HALE
and
MRS JUSTICE HALLETT
IN THE MATTER OF AN APPLICATION FOR A WRIT OF
HABEAS CORPUS AND SUBJICIENDUM
and
IN THE MATTER OF THE EXTRADITION ACT 1989
MILAN SCUKA
-v-
THE GOVERNOR OF HM PRISON BRIXTON
and
GOVERNMENT OF THE CZECH REPUBLIC
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR B COOPER appeared on behalf of the APPLICANT
MR J HARDY appeared on behalf of the FIRST RESPONDENT
Friday, 28th February 2003
J U D G M E N T
Between
ScukaClaimantGovernor of HM Prison Brixton & AnorDefendant

LADY JUSTICE HALE:

[1]There are before us two applications for habeas corpus challenging the applicant's detention under two committal orders made in the Bow Street Magistrates' Court in response to two extradition requests from the Government of the Czech Republic.[2]The first order is dated 18th April 2002 and was made by District Judge Nicholas Evans. The arrest warrant was dated 20th May 2001. It describes the relevant allegation in this way: "The above named Milan Scuka has received from the investigator of the City office of investigation in Plzen for committing criminal charge of practise of extortion according to the paragraph 235, chapter 1 of the Criminal Code for the criminal act that, he together with Petr Hlavac, born 10.12.1966 and Josef Hlavac born 3.5.1960 in the time since 24.3.1999 till 29.1999 in the Prison of Plzen in section number IV, in the cell number 71, they forced convicted Josef Kouba, born 13.3.1977 to exercise variety of favours for them, to wash their dirty [laundry], to bring them food from the canteen, to make their beds and other cleaning in the cell, they [forbid] him to watch TV, to leave the cell and all this in the reason to be in their disposition when they will need something and they [forbid] him to talk to other inmates so he cannot make any contact, through them, with the warden (security guard)".[3]Paragraph 235 of the Criminal Code says: "That one who forces someone else by violence or by threatening of violence, to do something, or [omit] something or [suffer], he will be punished up to three years in prison".[4]The Secretary of State's authority, dated 23rd January 2002, states that this appears to be conduct which, had it occurred in the United Kingdom, would have constituted the offence of harassment, putting people in fear of violence.[5]Although the committal order is dated 18th April 2002, the provisional warrant had in fact been issued on 21st December 2001, executed on 4th January 2002 and conditional bail was granted on 19th March 2002. After the order of 18th April, the applicant remained on bail for a while.[6]The second order is dated 29th November 2002 and made by District Judge Pratt. The arrest warrant was dated 1st February 2002. It describes the allegation thus, having recited two previous convictions of the applicant: " . . . in Ostrava-Kuncicky in the Holvekova street in the shop of POLO on 25th November 1999 at about 1.00 pm he took the advantage of inadvertence of the aggrieved Bozena Pruchnicka and he estranged a purse with the financial amount of CZK 140.00, tickets for mass urban transportation and key from her flat from the bag from her pushcart which she was holding close to her body by which he caused another damage in the amount of CZK 79.00".[7]This was contrary to paragraph 247 of the Criminal Code, entitled Larceny, and sub-paragraph 1 provides that: "The person who takes a possession of somebody else by the way of usurpation and [among other things] . . . d) commits the act at the thing somebody else wears or has with . . . will be sentenced to custodial sentence up to two years or to financial penalty or to forfeiture of the thing".[8]By the time of this order, the applicant was in fact in custody again. He had been arrested in Ireland on suspicion of breaching the residence condition of his bail, after travelling to Ireland on Tuesday, 20th August 2002. He was eventually granted conditional bail by Maurice Kay J in the High Court on 4th February 2003. Thus he has spent a total of eight months in prison as a result of these proceedings.[9]There are three issues raised before us on his behalf by Mr Cooper. The first is whether the offences are trivial for the purpose of section 11(3)(a) of the Extradition Act 1989. This provides: "Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence . . . in respect of which the applicant's return is sought, that -- (a) by reason of the trivial nature of the offence . . . it would, having regard to all the circumstances, be unjust or oppressive to return him".[10]The applicant says that both of these offences are trivial for this purpose. The sum of money stolen was about £2.80; allegations about television viewing, laundry and the eating arrangements of Czech prisoners are similarly not matters appropriate for international concern and better dealt with by way of prison discipline. Mr Cooper argues that relevant factors in assessing triviality include what would happen in this country to similar charges. The harassment charge probably would not be prosecuted at all, but dealt with as a matter of internal prison discipline, and for this he relies upon the evidence of Nancy Collins, a solicitor of the Prisoners' Advice Service. These are both cases in which a Magistrates' Court would accept jurisdiction. He also argues that it is disproportionate to invoke the extradition process for such offences. The applicant has already spent eight months in custody since he was first arrested for the harassment allegation, he might expect a noncustodial sentence if he was convicted and it is not in the public interest that the might of the extradition process be deployed in such a case.[11]Mr Hardy for the respondent on the other hand argues that neither of these offences is trivial. The test was recently canvassed in this court in the case of Bikar and Bikar v The Governor of HM Prison Brixton and the Government of the Czech Republic [2003] EWHC 372 Admin, on 14th February 2003. It all depended upon the nature and quality of the act in question and each case was to be judged on its own facts. There, there had been alleged a theft of 22 pieces of metal plate, stored alongside a farm building. In the court's view, this crossed the triviality threshold, or failed to get down to the triviality exclusion, by some distance.[12]Mr Hardy also referred to the case of Tarling [1970] Cr App R 77, before this court and the House of Lords. The charges which were said to be trivial there were failures to comply with the legislation relating to company reports and accounts. The Divisional Court rejected submissions that these were trivial matters, because of the maximum penalty and the likely outcome, the lack of prejudice to shareholders, the applicant's minor involvement in the matters in question and his reliance upon professional advice. In fact, it subsequently transpired that Mr Tarling, having been extradited, was sentenced to six months' imprisonment in respect of those offences.[13]As for the fact that a Magistrates' Court might accept jurisdiction in these cases, Mr Hardy points out that the Convention itself in Article 2.1 provides for a threshold of four months' imprisonment for extradition of a person who has already been convicted. A magistrate's jurisdiction on a single offence is six months, and indeed in the Tarling case, the Divisional Court referred to the possibility of a "substantial fine" in respect of the offences in question.[14]So we have to look at each case on its facts and ask ourselves whether it can properly be regarded as trivial for this purpose.[15]As far as the harassment matter is concerned, the respondent asks us to consider the applicant's own witness statement, dated 7th May 2002. In that witness statement, he denies having been involved in the conduct in question, but he does describe what took place. In particular, he describes the victim as:
". . . a tiny guy, he looked like a baby. He was about 20 years old and about 5 foot 3 inches tall and very skinny"
. He also says that when he first realised what was happening to him, he could not believe that the other inmates in the cell would do that. ". . . to such a tiny guy. I felt that it was very unfair how they were behaving. I got on okay with him and I felt sorry for him because of what was happening. As far as I could tell, the brothers would not do anything to him while I was around but they used to bully him when I was not there, I did not bully him or threaten him at any time, quite the reverse I helped him". But the picture there presented is of bullying by other inmates -- and he describes the other inmates as "big guys" -- of a much younger, smaller prisoner.[16]Mr Cooper argues that it is unfair to rely upon this statement, as it was put in on behalf of the applicant for a completely different purpose, related to arguments that at that stage he wished to pursue under section 6 of the Extradition Act, but that statement has been put in evidence in these proceedings and this court is the first place where the triviality argument can be raised. Mr Cooper accepts that he is in some difficulty in seeking to resile from his own client's description of the conduct which was involved. It is of course not for us to decide whether the applicant is correct in saying that, although this conduct took place, he himself was not involved in it.[17]The issue for us is: does this conduct get down to the triviality threshold? On any view, what is being alleged is the ganging up by older prisoners on a much younger one, who was obviously vulnerable. These are no longer the days when public school boys were expected to learn to live with the bullying inherent in the fagging system. Society these days recognises that bullying, especially in institutions and especially of vulnerable people, can be an extremely serious matter. Complaints, if such there be, in this country are that bullying is not taken seriously enough by the authorities, rather than that taking action against it is an overreaction.[18]As far as the theft is concerned, the amount of money involved cannot possibly be determinative. For one thing, somebody who steals another's purse or handbag or wallet does not at the time know much it contains. There might have been a much greater sum of money in the purse. But in the second place, stealing a small sum of money from a poor person may be a much more serious matter than stealing a large sum of money from a richer one. Not only was this person deprived of money, but also of the means of transport and the means of entry to her home, according to what is alleged. Some damage was done and so there must have been force of some sort, and the applicant in his witness statement describes her as an "old lady". So here again, we have an offence committed allegedly against a vulnerable person.[19]In my judgment, these offences cannot possibly be regarded as trivial. They are matters which the authorities are entitled to regard as of sufficient gravity to merit these proceedings.[20]As far as proportionality is concerned, this is inherent in the test laid down in section 11 and, in any event, the question of the probable outcome, were there to be any evidence of the probable outcome in the Czech Republic, and the time spent on remand would be relevant to whether it was oppressive to return the applicant, but that would only arise if the offences were trivial.[21]I would also comment that there is a public interest in this country adhering to its treaty obligations. Whether or not these are matters for which Her Majesty's Government would choose to seek extradition, had they occurred here, if they fall within the criteria laid down by the legislation and the treaties to which this country has adhered, we should be prepared to apply them.[22]Secondly, the issue is raised as to whether the bullying charge constitutes an offence under English law at all. It is argued that the behaviour alleged in the particulars does not include a reference to violence, or the threat of violence, in contradistinction to section 4 of the Protection from Harassment Act 1997, which requires that the victim was caused to fear on at least two occasions that violence would be used against him.[23]This was dealt with by the District Judge in paragraph 5 of his judgment. He said this: "Although the word 'forced' may not necessarily always import violence or threat of violence, in the context of this case, it is entirely reasonable to infer that it did. The position here was that Mr Scuka then aged 46 and two other cellmates aged 32 and 38, appear to have ganged up against Mr Kouba 23, their fourth cellmate. Over a five day period, between the 24th and 29th March 1999, Mr Kouba did things he would not have done voluntarily, because he was forced to do them. There is no requirement for the Czech Republic to furnish this court with evidence sufficient to make a case to answer, and a brief description of conduct is sufficient in the circumstances for me to be satisfied that the conduct would break the relevant law of each country. I am not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial. I am aware that the Czech authorities in issuing their warrant for arrest, and the government now requesting Mr Scuka's [return], must have been satisfied that the conduct constituted an offence contrary to paragraph 235, that is satisfied of the 'violence' ingredient".[24]Put perhaps more shortly, given that the particulars use the word "forced", and the offence requires violence or the threat of violence, it is a fair inference that the ingredients of the offence under section 4 of the 1997 Act have been made out. In my view, the ruling of the District Judge on this matter cannot be faulted.[25]The third argument which was presented is that this case should await the outcome of an asylum application which has been made by the applicant. He claimed asylum on 10th December 1999 and this was refused on 3rd January 2001. There have been various attempts by the Secretary of State to short circuit the appeal process, but that is continuing and we are told that he is now awaiting the reserved determination of the Special Adjudicator, which is due on 31st March this year. The argument, therefore, is that extradition ought to wait.[26]This court dealt with that argument in the case of R (on the Application of Karpichov & Marais) v Latvia and the Republic of South Africa and the Secretary of State for the Home Department [2001] EWHC Admin 329, on 26th April 2001. Having rehearsed the arguments on each side as to whether or not extradition proceedings should be delayed pending the outcome of asylum proceedings, Kennedy LJ stated that:
"All that said, it seems to us quite clear that the interests of justice require at this stage that these proceedings take their normal course"
. So they were not prepared to grant the application for an adjournment and the application should be listed in the ordinary course of events.[27]Mr Cooper argues that we should not adopt that approach. He seeks to distinguish the case because of the comparative lack of gravity of the charges here. We know nothing of the charges involved in the Karpichov & Marais case, although I for one am quite content to assume that they were charges which, on any view, might be considered more serious than those at issue here. Mr Cooper also draws attention to experience, which I understand is common to counsel, that this should be seen in the context of requests for extradition to this and other former Soviet Bloc countries who have recently acceded to the Convention, after a claim for asylum by the person whom they wish to have extradited.[28]Both of these processes have some way to go. There is no real risk that the applicant will be extradited to the Czech Republic before his claim for asylum has been determined. It is also worth bearing in mind, in looking at the generality of these cases, that other applicants might well be prejudiced if the general practice was to await the outcome of an asylum process before seeking to bring the extradition process to an end. The tests, particularly under section 6, and for asylum, may have some overlap, but they are different, and an applicant might be able to succeed in resisting extradition, even though he might not succeed in gaining asylum.[29]In my judgment, therefore, the approach adopted by the Divisional Court in the Karpichov & Marais case is an entirely sensible one. In all the circumstances, I see no reason to depart from it in this case. In my view, therefore, both applications should be refused.

MRS JUSTICE HALLETT: I agree.

[31]MR HARDY: My Lady, I think there are some consequential applications on both sides.[32]He has been on bail since 4th February and I do not invite this court to revoke that bail, although it is in the gift of this court because it was this court which in fact admitted him to bail in the first place.[33]However, there are five conditions at present on his bail and the conditions are set out at page 40 of the court's bundle. May I invite the court to impose two additional conditions, both of which are, if I may say so, standard conditions normally imposed after committal at Bow Street? Those are -- and they would be numbered 6 and 7 there -- as follows: "6. To surrender if, as and when directed to do so by the Secretary of State; and 7. To surrender, if required to do so, to the custody of any court in connection with these extradition proceedings, upon notice being sent to his last known address".[34]I do not understand my learned friend, with whom I have had an opportunity to discuss these proposed additional conditions, will take any objection to them. Condition 6, if I may say so, is self-evidently sensible and condition 7 has the effect of guaranteeing the surety so that the surety knows that, in the event that a court requires the attendance of somebody whom it is thought has gone absent, that the surety will then be liable for forfeiture.[35]MR COOPER: I do not object to those two conditions.[36]May I just ask that, with the seventh condition, the notification is sent not just to his address, but also to those instructing -- his solicitors -- to ensure that there can be no mistake?[37]MR HARDY: He may have sacked them.

LADY JUSTICE HALE: It will be to any solicitors that are on the record.

[39]MR HARDY: Or to any solicitors on the record. The difficulty is that if the solicitor then says: "we do not know where he is" ...

LADY JUSTICE HALE: It should not be "or". It should be "and". I think that would be the point that Mr Cooper was making.

[41]MR COOPER: That is what I was asking -- in addition.[42]MR HARDY: If it is conjunctive, I do not object.[43]MR COOPER: I am obliged.[44]May I ask for one further matter, which is Mr Scuka is currently reporting daily and I wonder whether, given that these proceedings may go on for a considerable time -- whether it may be varied to two times a week?[45]MR HARDY: Did you say two?[46]MR COOPER: Two times a week.[47]MR HARDY: I have no objection to that.

LADY JUSTICE HALE: Yes.

[49]MR COOPER: I am obliged.[50]May I ask that to be Monday and Friday at the same hours?

MRS JUSTICE HALLETT: At the same police station?

[52]MR COOPER: At the same police station.[53]Finally, may I ask for costs to be subject to the usual legal aid taxation?

LADY JUSTICE HALE: I was sure you would make that application, Mr Cooper.

[55]Are there any other applications that you require? You were dealing only with the bail conditions. I was not sure if you had finished making any --[56]MR HARDY: None from this side, my Lady.

LADY JUSTICE HALE: I thought not.

[58]MR COOPER: I was going to apply for leave for the triviality matter to be determined by the House of Lords, but in the light of the judgment, I anticipate that leave will not be granted, but nevertheless I do apply.

LADY JUSTICE HALE: It is less likely for leave to be granted in any event, but you need to protect your own position by making that application.

[60]MR COOPER: I make the application for the reason that there is no decisive authority which determines triviality at present.[61]MRS JUSTICE HALLETT: Can there be, Mr Cooper, if it is always going to be a matter of fact and degree in any one case? I am not following what is the point of law that should trouble their Lordships' house? Every case depends on its own facts.[62]MR COOPER: It may assist in other cases for there to be guidelines on the way to approach the facts of each case, which clearly have been set out in this judgment, but I know that it would assist if there was a definitive authority on triviality for this flood of new Czech cases that seems to be coming through to these courts, for example, and I would propose that the basis that I put forward for the proportionality test and the like would clearly assist on the wider scale.

MRS JUSTICE HALLETT: What is your point of law?

[64]MR COOPER: The point of law is whether a proportionality test ought to be applied to the triviality threshold.

LADY JUSTICE HALE: Yes, I understand that that is what you are arguing. You are very sensible, as I say, to guard your own position to make the application, Mr Cooper. It is exactly the sort of case which this court would prefer to leave to their Lordships to decide.

[66]MR COOPER: My Lady, I am grateful.