Jermaks v The Prosecutor General's Office of the Republic of Latvia [2016] EWHC 171 (Admin)

Case No CO/3575/2015

[2016] EWHC 171 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/02/2016

Before

THE HON. MR JUSTICE CRANSTON

Between

JERMAKSAppellant

THE PROSECUTOR GENERAL’S OFFICE OF THE REPUBLIC OF LATVIARespondent

Peter Carter QC and Ben Cooper (appearing pro bono)(instructed by Cantaris Locke) for Appellant

Daniel Sternberg (instructed by the Crown Prosecution Service Extradition Unit) for Respondent

Hearing Hearing dates: 29/01/2016

Judgment

Introduction

[1]This is an appeal against the decision of District Judge Ikram (“the District Judge”) made on 21 September 2015, to order the appellant’s extradition to Latvia pursuant to a conviction European Arrest Warrant (“EAW”) issued by the Prosecutor General’s Office of the Republic of Latvia. It was certified by the National Crime Agency on 31 October 2014. The warrant seeks the appellant’s extradition for him to serve a custodial sentence of five years, following his conviction for three offences: driving without a license and whilst under the influence of narcotic substances and possession of 0.5090g of methamphetamine on 29 August 2008, and possession of 16.72g of methamphetamine on 5 September 2008.

[2]The issue raised in the appeal concerns the mandatory nature of the sentence which the Latvian court imposed on the appellant. The appellant argues that mandatory sentences are of their nature disproportionate and arbitrary under

Article 8 of the European Convention on Human Rights

. Consequently, the District Judge was wrong to order his extradition to Latvia.

Latvian proceedings and the EAW

[3]The EAW was issued by S Petersone of the Prosecutor General’s Office of the Republic of Latvia on 6 June 2012. Box B of the EAW records that the decision underlying the warrant was the judgment of the Riga City Kurzeme District Court of 31 January 2011. Box C of the EAW states that a sentence of 5 years was imposed for the offences on the warrant and the whole sentence remains to be served on return. According to Box D, this was not a sentence imposed in absentia. The offences are set out at box E of the EAW. After the offence of driving under the influence, box E describes the two drug offences (in translation) as follows:

“[The appellant] illegally bought and stored psychotropic substances without resale purpose repeatedly in the following circumstances: [The appellant] at place and time which was not exactly established during the preliminary investigation, but no later than until August 29, 2008 illegally bought from a person who was not identified during the preliminary investigation no less than 0.5090g of substance containing 43% or 0.2188g of psychotropic substance equal to prohibited especially dangerous narcotic substances – methamphetamine. The illegally acquired 0.2188g of methamphetamine [the appellant] was illegally storing in the car Audi 100, registration plate number DZ 1799, until August 29, 2008, 15.20, when in Riga, on junction of O. Vācieša and Mārupe street in direction from Altonava iela the car driven by him was stopped and the mentioned substance was found and seized. [The appellant] repeatedly at place and time which was not exactly established during the preliminary investigation, but no later than on September 5, 2008 illegally bought from a person who was not identified during the preliminary investigation no less than 16.7200g of substance containing 26% or 4.3472g of psychotropic substance equal to especially dangerous narcotic substances – methamphetamine. The illegally acquired 4.3472g of methamphetamine [the appellant] was illegally storing with himself in the pack of cigarettes “Camel” until 5 September, 2008, 02.00, when in Riga, Grīva iela near house No.11 he was detained, but mentioned substance – found and seized. By his actions [the appellant] committed the criminal offence provided for by the Section 253(2) of the Criminal Law.”

Section 253(2) is then reproduced in box E. “Section 253. Unauthorised Acquisition, Storage, Transportation and Conveyance of Narcotic and Psychotropic Substances (1) For a person who commits unauthorised manufacture, acquisition, storage, transportation or conveyance of narcotic or psychotropic substances without the purpose of selling such substances, the applicable sentence is deprivation of liberty for a term not exceeding five years, with or without confiscation of property, and police supervision for a term not exceeding three years. (2) For a person who commits the same acts, if commission thereof is repeated or in a group of persons pursuant to prior agreement, or by a person who has previously committed theft of narcotic or psychotropic substances, or if such have been committed regarding large amounts of narcotic or psychotropic substances, the applicable punishment is deprivation of liberty for a term not exceeding five and not exceeding ten years, with or without confiscation of property and police supervision for a term not exceeding three years.” (1) For a person who commits unauthorised manufacture, acquisition, storage, transportation or conveyance of narcotic or psychotropic substances without the purpose of selling such substances, (2) For a person who commits the same acts, if commission thereof is repeated or in a group of persons pursuant to prior agreement, or by a person who has previously committed theft of narcotic or psychotropic substances, or if such have been committed regarding large amounts of narcotic or psychotropic substances,

[4]Before the District Judge was a transcript (in translation) of the judgment of Judge Ornina of Kurzeme District Court of Riga City, dated 31 January 2011, who had found the offences proved. The appellant had admitted his guilt and expressed remorse. The judgment records that he had been sentenced previously, by Kurzeme District Court of Riga City on 10 November 2005 to community service of 80 hours. Since punishment had not been served under the judgment of Kurzeme District Court of Riga City of 6 July 2004, that led to the final punishment of 280 hours community service. On 31 March 2009, since the sentence of 280 hours community service had not yet been served, the court substituted a sentence of imprisonment of 140 days. However, Latgale District Court held on 23 October 2009, pursuant to legislative amendments on the substitution of community service with imprisonment, that the 140 days of imprisonment had been reduced to 70 days. That sentence had been served.

[5]In the judgment Judge Ornina recorded that the appellant was drug free; that the police had reported that he had made a significant contribution to the disclosure of a serious crime; that he was employed as an automotive mechanic, was married and maintained a daughter 8 years of age; and that on his account he had not used narcotic substances since 2008 and would submit monthly urine samples for the detection of narcotics. Judge Ornina continued:

“When the Court establishes the type and severity of the punishment it is guided by Sections 35 and 46 of the Criminal Law, namely, the objective of the punishment, the nature of the committed offence and the harm caused, the personality of the accused, as well as any mitigating or aggravating circumstances… The Court believes that [the appellant’s] liability is mitigated under Paragraph 3 of Part 1 of Section 47 of the Criminal Law as he actively furthered the disclosure of a criminal offence, as well under Part 2 thereof as he freely confessed and regretted the criminal offence committed, expressed his desire to change and not to commit any criminal offences in the future. But the liability of the accused is aggravated under Paragraph 1 of Part 1 of Section 48 of the Criminal Law as the criminal offences constitute the recidivism of criminal offences. Having examined the personal characteristics of the accused and the evidence that may affect the type and severity of the applicable punishment under Part 2 of Section 253 of the Criminal Law – deprivation of liberty together with an additional mandatory punishment – police supervision, without the confiscation of property. The Court concluded to impose the punishment of deprivation of liberty as [the appellant] committed criminal offences for which he is tried when he had not yet served the previous sentence under the judgment of Kurzeme District court of 10 November 2005. [The appellant] believed that it was not necessary to serve the sentence – community service, and this punishment was substituted with a temporary deprivation of liberty. Considering these circumstances the Court believes that no other punishment with the exception of imprisonment will fulfil the objective of the punishment, namely, punish the guilty party and ensure that he would refrain from committing any criminal offences in the future and would abide by the law. … The Court, considering the two mitigating circumstances, and the fact that during the hearing it was able to ascertain that the accused has understood the underlying causes of his criminal activity and has regretted his actions, finds it possible to establish the minimum punishment under Part 2 of Section 253 of the Criminal Law thus fulfilling the objective of the punishment – punish for the committed crime and ensure that the accused would abide by the law and refrain from committing any criminal offences in the future.”

[6]Of 22 April 2015, the Latvian authorities provided further information in the form of a letter from the prosecutor who issued the EAW. This was before the District Judge. The letter explains that the appellant appealed against the judgment imposed on 31 January 2011 by the Riga City Kurzeme District Court, but on 11 May 2011 the Riga Regional Court dismissed the appeal and the decision became final on 24 May 2011. The letter states that an order to execute the judgment was sent to the state police on 7 June 2011 but the appellant evaded serving the sentence. On 25 May 2012, the court received information that he had left Latvia and was in Britain. On 4 June 2012 the Prosecutor General’s Office made an extradition request, the EAW being prepared on 6 June 2012. The EAW was transmitted to the UK authorities on 18 September 2014. The letter also explains that the appellant was subject to a condition of residence and had not applied to change his address or for permission to leave Latvia when the sentence came into force. He knew that the judgment of 31 January 2011 had come into force and left Latvia to evade serving the sentence imposed by the court.

District Judge’s findings

[7]As well as the EAW, the judgment of the Latvian court and the further information, the District Judge had statements from the appellant and his partner. In his statement the appellant gives his account of the 2008 Latvian offending. He was buying drugs from a named drug dealer. On 29 August 2008, he borrowed that dealer’s motor vehicle to drive home – it was full of knives and drugs paraphernalia, such as syringes – when he was stopped by the police. The drugs they found were for his personal use. Several days later the dealer visited him and, after he departed, telephoned to inform the appellant that he had left a packet of cigarettes with drugs inside but would return to collect it. He did not return immediately and his mobile telephone was switched off, when the appellant rang to inquire. When he did so, the police arrived shortly afterwards. The police told him that the dealer had been arrested and blamed everything on him. If he gave details of everybody else they would assist him in his trial. He agreed. Afterwards he received threats.

[8]Before the District Judge, the appellant was represented by Mr Ben Cooper. The appellant gave evidence. He was born in 1984. He recalled that in Latvia he abused alcohol and drugs. He met his partner in 2009 and she and the children had changed his life. In Britain he was a manager in a garage. His wife and he had different shifts to look after the children when they were not at school. His mother had visited from Latvia but had returned there. He produced evidence of being drug-free. He accepted he was a fugitive: he had left Latvia, knowing he was convicted, without notifying a change of address. Having heard the appellant’s evidence and submissions from both sides, the District Judge reserved judgment.

[9]On 21 September 2015, the District Judge handed down a written judgment in which he rejected the appellant’s challenges and ordered his extradition. Referring to Norris v. Government of United States of America

[2010] UKSC 9

[2010] 2 AC 48

, HH v. Deputy Prosecutor of The Italian Republic, Genoa

[2012] UKSC 25

[2013] 1 AC 338

and Polish Judicial Authorities v. Celinski

[2015] EWHC 1274 (Admin)

, the District Judge said this as regards the Article 8 argument:

“[The appellant] is a fugitive from justice. This is not necessarily fatal to an Article 8 submission though it doesn’t help. Balancing in favour of extradition In favour of extradition is clearly the great weight of the public interest in honouring extradition requests… The offences in the EAW are not trivial. He has a sentence of 5 years to serve, a significant period. [The appellant] has been in this country only since January 2011. Delay in this case has been short but lies in [the appellant’s] own actions in fleeing and coming to the UK. Balancing against Extradition [The appellant] has no convictions here. He has a partner of 7 years and lives with her and two children of her previous relationship. He is working and provides financially as well as emotionally. There will be impact on them as there is a lengthy sentence to be served. Issues in relation to children are a primary consideration. Emotional and financial hardship are a sad feature of many cases this court deals with. Fortunately, his partner will be able to continue to care for the children and she will have the safety net of welfare benefits and support from the state. … In terms of proportionality, [the appellant] has received a sentence of 5 years for the offences. Undoubtedly, the Latvian state takes a more serious view in terms of sentence than we would. That said, I am bound to note the comments of the [Lord Chief Justice] in Celinski where he stated that ‘Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy.”

Balancing in favour of extradition Balancing against Extradition

The appellant’s case

[10]Mr Carter QC submitted that the District Judge had failed to address the fact that the sentence was a mandatory minimum sentence. When assessing whether an extradition order which will result in the appellant serving a sentence of 5 years in Latvia amounts to a violation of his Article 8 rights, or of the rights of the children of his family. He seems to have assumed that the offences were serious because they resulted in a sentence of five years imprisonment. A mandatory minimum term is ipso facto arbitrary as such a sentence does not enable a court to give proper effect to substantial or exceptional mitigation and, unless justified under Article 8(2) by the requesting state, constitutes a violation of Article 8(1). The weight given to mutual confidence and respect on which the EAW is based in turn assumes that the sentence imposed by the requesting state does not violate a Convention right. Latvia had failed to provide such justification despite having had ample notice and opportunity to do so.

[11]Mr Carter invoked paragraph [12] of Celinski, that factors mitigating the gravity of an offence and culpability would ordinarily be taken into account in the courts of the requesting state. In his submission, where that could not be done, as with mandatory sentences, the obligation moved to the courts here to weigh these matters in the Article 8 balance. To similar effect, he referred to the need enunciated by Baroness Hale at paragraph [45] of HH for some sort of relationship between offending and its consequences. He pointed out that in one of the cases dealt with in Celinski the court seemed to approve the approach of the District Judge in that case, who had weighed in the balance against extradition the fact that the drug offending would have been unlikely to result in a custodial sentence: see [74]-[75]. Mr Carter also looked for support from a passage in the judgment of Holroyde J (with whom Laws LJ agree) in Balaeiharis v. Greece

[2015] EWHC 3702 (Admin)

, on the ground that this was authority that this court could prevent extradition where a mandatory minimum sentence has been imposed:

“[57]…the sentence of 22 years’ imprisonment was much more severe than would be imposed in comparable circumstances by the courts in this country. However, the offending was on any view serious: this is not a case, such as Miglans v. Prosecutor General of the Republic of Latvia [2014] EWHC 2659 (Admin), of a substantial mandatory term for what would be viewed by the courts of this country as a comparatively minor offence.”

[12]In the circumstances of this case, Mr Carter accepted that if sentenced in this jurisdiction for the offending set out in the EAW, the appellant would have received a custodial sentence. It would be difficult to say that a sentence of two years’ imprisonment, on the facts of this case, was so grossly disproportionate as to violate Article 8, although with the appellant’s mitigation and rehabilitation and the delay, a suspended sentence of up to 51 weeks was the most likely outcome. Equivalent offences committed in this jurisdiction would certainly not have resulted in a sentence of five years’ imprisonment. Although of limited weight when set against the importance of fulfilling the objective of the EAW, a disproportionate sentence is a factor to be put into the balance in determining whether extradition amounts to a violation of the Article 8 rights of the appellant and his family. Mr Carter also acknowledged that the appellant’s status as a fugitive did not assist him. However, the fact that he was a fugitive diminished but did not determine his and his children’s argument that it is a violation of his and their Article 8 rights for him now to be surrendered to serve the sentence of five years’ imprisonment.

[13]Despite the background of serious criminality to the offending, and the aggravating features of the appellant’s recidivism and failure to comply with court orders, there was, in Mr Carter’s submission, significant mitigation in the appellant’s guilty plea and assistance to the police. A mandatory minimum term of five years in the circumstances of this case was clearly disproportionate. There was no explanation in the EAW, the judgment of the Riga City Court or the Further Information about whether exceptional circumstances could be used to reduce a mandatory minimum sentence, whether a mandatory sentence could be suspended or whether the Latvian appeal court could have reduced it.

Disposal

[14]Celinski is binding authority on this court. In giving the judgment of himself, Ryder LJ and Ouseley J, Lord Thomas LCJ held that when applying the principles set out in Norris and HH, there were a number of matters which the judge in the extradition hearing had to bear in mind, first, HH concerned three cases each of which involved the interests of children and the judgments in that case must be read in that context; second, the public interest in ensuring that extradition arrangements are honoured is very high, so too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice; third, the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect; fourth, the independence of prosecutorial decisions must be borne in mind when considering issues under Article 8; fifth, it is important in an accusation EAW for the judge at the extradition hearing to bear in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; “13. Sixth, in relation to conviction appeals: i) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him. ii) Each Member State is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence. iii) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been…” Lord Thomas LCJ then went on to deprecate the citation of appeal decisions on Article 8 made in other cases, as these are invariably fact specific, reiterated that the principles to be applied are those set out in Norris and HH, and approved a balancing approach to the factors for and against extradition. i) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him. ii) Each Member State is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence. iii) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been…”

[15]In this case, the starting point is therefore that the courts of other EAW member states such as Latvia are entitled to impose such sentences as are appropriate under their own law, provided they are in accordance with the Convention: Celinski, [13(ii)]. Mr Carter could cite no authority of the Strasbourg court which has found that mandatory sentences of this character are contrary to Convention rights. However we might regard them, it cannot be the case that requesting states must justify mandatory sentences under

Article 8 ECHR

given the context of the mutual confidence and respect which operates with the EAW system. Mandatory sentences of this nature are not of themselves disproportionate.

[16]Further, the sentence of Judge Ornina in the Latvian court in this case cannot be said to be arbitrary. Section 253(2) of the Latvian Criminal Law applied because the appellant’s offending was repeated. The judge examined the aggravating and the mitigating factors. In particular, he took into account the appellant’s guilty plea, remorse, drug-free status and assistance to the police. Overall he decided that the minimum mandatory sentence under Article 253(2) was appropriate in the appellant’s case. That sentence was, to use the language in Balaeiharis, “much more severe than would be imposed in comparable circumstances by the courts in this country”, but as the Divisional Court held in that case, that of itself is not a reason to refuse extradition.

[17]In the passage from which this phrase in Balaeiharis is taken, the Divisional Court recognized the authority of Miglans v. Prosecutor General of the Republic of Latvia

[2014] EWHC 2659 (Admin)

. In that case Ouseley J was dealing with an accusation EAW where a requested person, a drug addict, was faced with a mandatory minimum sentence of five years for possession at his home on the same day of small quantities of cannabis and heroin. There was nothing to indicate a probable suspension of sentence, that these were residues of a larger drug-trafficking operation or that the appellant had previous convictions in Latvia for drugs offences. As Ouseley J put it, five years for this type of offending would be “beyond startling”, indeed disproportionate. In my view, Miglans was one of those “rare” instances, referred to by Lord Thomas LCJ, where it was appropriate for the court here to consider whether the sentence was very significantly different from what a UK court would impose: Celinski [13(ii)]. Miglans is not this case. As Mr Carter conceded, a court here could have imposed a custodial sentence of some length for the drugs offences, albeit nothing like five years, against the background of criminality described in the warrant, the appellant’s own flaunting of previous sentences and his repeat offending.

[18]So the question for me under Celinski is whether the Article 8 balance struck by the District Judge was wrong in considering the factors for and against extradition. I cannot say that it is. The appellant acknowledged that he was a fugitive and there is the strong public interest in the UK not becoming a jurisdiction perceived as willing to accept fugitives. His being a fugitive also undermines to an extent the foundation of the family life established since he fled here. It also puts paid to any issue of delay, and Mr Carter realistically accepted that delay was not a factor favouring the appellant. As for factors against extradition, the District Judge found that the appellant is not the sole carer for the two children, his wife works and she could provide appropriate care for them. Most unfortunately there will be hardship to the appellant and his family, as there almost invariably is with extradition. It seems to me, however, that the District Judge reached conclusions which were proper and open to him on the evidence. Overall I cannot say that the outcome he reached in relation to Article 8 is wrong.

Conclusion

[19]I dismiss the appeal.