High Court Dublin v Iosifidou [2016] EWHC 1753 (Admin)

Case No CO/1308/2016[2016] EWHC 1753 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 8 June 2016
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE HAMBLEN
MR JUSTICE IRWIN
Between
HIGH COURT DUBLINAppellantv
Between
IOSIFIDOURespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms Amanda Bostock (instructed by CPS Extradition Unit) appeared for AppellantMr Daniel Mansell (instructed by Stokoe Partnership) appeared for Respondent
J U D G M E N T
[1]This is an appeal by the High Court of Dublin, Ireland, ("the appellant"), brought pursuant to section 28 of the Extradition Act 2003 ("the Act") as amended by section 160(1) of the Anti-social Behaviour, Crime and Policing Act 2014 against the decision of district judge Ashworth given on 3 March 2016 whereby he ordered the discharge of Nina Iosifidou, the respondent, following an extradition hearing which took place on 29 February 2016.[2]The sole ground of appeal is that the district judge erred in finding that extradition would be a disproportionate interference with the respondent's rights under Article 8 of the ECHR and in ordering her discharge under section 21(2) of the Act.

The factual background

[3]The respondent's return is sought by a European Arrest Warrant ("EAW") issued on 13 October 2015 and certified by the National Crime Agency on 27 October 2015. The EAW seeks her return to stand trial for an offence of facilitating illegal immigration, which carries a maximum sentence of 10 years' imprisonment. The framework list is ticked in relation to "trafficking in human beings".[4]The warrant alleges that on 7 May 2012 the respondent and a male arrived in Northern Ireland in a camper van from France by boat. Customs searched the vehicle and found a number of men of Albanian/Kosovan nationalities without ID cards or passports who were concealed within the camper van. The respondent and her companion were arrested and conveyed to the police station. The respondent was interviewed, during which she admitted being paid money to assist in the illegal trafficking of a number of men into the United Kingdom. She was released pending charge and left Ireland immediately upon her release. Charges were issued. However, the respondent could not be found. Checks by the UK authorities at her last known address yielded no information. She was eventually tracked through flight records in October 2014 at London Gatwick.[5]Further information was received from the Irish authorities on 10 December 2015 to the following effect:(1) The respondent was interviewed on 7 May 2012 when she provided a UK address of "3 Golf House Cottage, The Cowan, Stutstown, IUP2 14AA". The respondent states that the address should read "3 Gold Cottage, The Common, Stutstown, IP21 4AA" and that she provided the correct address, as the district judge accepted.(2) A decision to prosecute was not made on that date and there was, therefore, no power to detain the respondent or make her the subject of bail conditions under Irish law. She was released pending charge.(3) Immediately upon her release, it was believed that the respondent returned to the UK.(4) The decision to charge the respondent was made on 27 August 2012. The Irish Garda contacted Interpol to have her last known address checked, but she could not be found. No further sightings of the respondent were reported until 29 October 2014 when a woman matching the same details flew into London Gatwick from Amsterdam.(5) Whilst the respondent was not made aware of proceedings having been authorised at the time of her release, she was aware of the possibility of those proceedings, given that she admitted guilt in interview.

The law

[6]A second letter containing further information was received from the Irish authorities on 17 February 2016, which stated as follows:(1) Mothers with young children can take their children into the Dochas Centre attached to the Mountjoy Prison Complex where there is a dedicated mother and child unit with 24/7 medical care available.(2) Normally a child would leave the prison when they reached the age of one, but if the mother is close to her release date soon after the child is one, an exception can be made whereby a child stays with the mother until her release.(3) If the mother has someone who she is happy to care for the child, the child will be left in their care, if the Child and Family Agency approve; otherwise foster care will be sought. The law The appeal is brought pursuant to sections 28 and 29 of the Act under which an appeal may be brought on a question of law or fact.[7]The leading authority in relation to extradition and Article 8 is Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin). In that case, the court emphasised a number of general principles in relation to extradition and Article 8, including the following of particular relevance to the present case:(1) "...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..." (Paragraph 9)(2) "...the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect..." (Paragraph 10)(3) "...The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8." (Paragraph 11)(4) "... 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; it is therefore important in an accusation EAW for the judge at the extradition hearing to bear that in mind. Although personal factors relating to family life will be factors to be brought into the balance under Article 8, the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction." (Paragraph 12)[8]In relation to the role of an appellate court on an appeal from an extradition decision by a district judge, the court emphasised the following at paragraph 24:
"The single question... for the appellate court is whether or not the district judge made the wrong decision... Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome,that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."
The hearing and the district judge's judgment[9]Tthe respondent provided a witness statement for the hearing of 29 February 2016 and gave evidence at that hearing. We have been provided with a note of that evidence, which is accepted as being an accurate note. The district judge made the following specific findings of fact in relation to the balancing exercise that he had to perform:
"The RP committed a serious offence attempting to assist the illegal entry of persons into Ireland. She made a full and frank confession. She gave correct contact details to the police before release. The police mis-recorded the details. She lived and worked in the UK legitimately. She is a single parent of a child of five months. If she is extradited, the child is likely to be taken into care and likely to suffer as a result of the separation."
[10]Having set out various factors which favour extradition and various factors that militate against extradition, the district

judge concluded on Article 8 as follows:

"The public interest considerations in favour of extradition are persistent and weighty. However, in this case, the hardship to the daughter, born to a mother who had no way of knowing she was still wanted in Ireland, would be extreme, facing as she would do an application by the local authority to take her into care and to be placed with foster parents. She is forming positive attachments to the mother, which will be displaced and that displacement will be likely to cause both short-term and long-term harm to her. Balancing these factors up, including the delay in reaching this point and the effect of that delay upon the RP's personal life, it would be disproportionate to order extradition as the facts militating against extradition outweigh those for it."

The parties' contentions

[11]The appellant submits that the district judge was wrong to find extradition to be a disproportionate interference with the respondent's rights under Article 8 for the following principal reasons:(1) The offence for which return is sought is extremely grave, with a maximum sentence of 10 years' imprisonment, which could be imposed if convicted. The public interest in extraditing someone to stand trial for an offence of this gravity, where guilt is accepted and there has been limited delay, is very high indeed.(2) The district judge has ignored the clear statement of the Irish authorities that, having accepted she was guilty of the offence, she was aware of "at least the possibility of being prosecuted in the future for the offence for which she is arrested."(3) The district judge appeared to hold that the Irish authorities were responsible for delay due to mis-recording the address for the respondent. This is not a fair conclusion on the evidence.(4) The actual delay in the case is relatively minor. The offending behaviour took place in May 2012 and there is no culpable delay by the authorities.(5) Although the respondent does now have a child born on 30 September 2015, the Irish authorities have made it clear that the child can remain with the respondent until she is 12 months old. The district judge references this information, but does not appear to accord it any weight. The district judge failed to consider that the EAW was an accusation warrant seeking the respondent's return to stand trial. Following conviction, the Irish court could have been required to consider the child and the impact of any sentence upon her before imposing a custodial sentence. It must be accepted that an Irish court is just as able to consider the interests of the child when passing sentence as a UK court is in considering extradition.(6) The district judge failed to take sufficiently into account the respondent's evidence that her mother would come to the UK and care for the child if she is extradited or serves a sentence beyond 12 months in Ireland. The district judge was wrong to conclude that there was no immediate family to care for the child and should have, additionally, taken into account that the respondent had not been forthcoming in assisting the court with alternative care for the child.(7) The district judge failed to take into account that the child is only six months old and is said to have received care only from her mother previously. If remaining with her mother in custody, the Irish authorities make clear that a mother and baby unit is available and an appropriate standard of care will be provided. Given that the child's only known caregiver will remain with her, and her very young age, it is submitted that the child will suffer limited consequences travelling with her mother to a mother and baby unit in Ireland. This is particularly so given that she would not be leaving her father or siblings behind.[12]In response, the respondent contends in particular that:(1) There is uncertainty as to what would happen to the respondent's daughter if extradition was ordered.(2) The impact of any separation of the respondent and her daughter would be exceptionally severe and long-lasting.(3) The respondent's account was believed by the district judge.(4) The appellant's inaction has led to delay, which diminishes the weight to be attached to the public interest and increases the impact upon private and family life.(5) The district judge took proper account of the seriousness of the offence and noted that the respondent had a non-organisational role.(6) The respondent is now pregnant with her second child and is due to give birth around 29 October 2016.

The issue on appeal

[13]The issue for the court is whether the district judge was wrong to conclude that extradition would be a disproportionate interference with the respondent's rights under Article 8. In considering this question, we recognise that findings of fact must ordinarily be respected, especially if evidence has been heard.[14]In the brief reasons given for his conclusion, the district judge placed particular emphasis on the "extreme hardship" which he found would be caused to the respondent's daughter, allied to the delay involved and the fact that the respondent "had no way of knowing she was still wanted in Ireland."[15]In relation to the delay involved, we would not regard the period as being particularly lengthy in the context of extradition cases. According to the district judge's findings, the significance of the delay lies mainly in the fact that the respondent "had no way of knowing that she was still wanted." We do not consider that this accords with the evidence, including the note of evidence with which we have the benefit of being provided. As the district judge recorded, the evidence of the Irish authorities was that the respondent "should have been aware of at least the possibility of being prosecuted in the future for the offence for which she was arrested." This is reinforced by the respondent's own evidence that she was told that she would be arrested if she went back to Ireland and, as recorded in the note of evidence:
"I was thinking that if I returned to Ireland, I would be arrested in relation to these proceedings. It is a normal thing to think. I was arrested for a serious crime and released."
[16]As reflected in the respondent's evidence, this was a serious crime, which she had admitted. Although she was released, she was told that she would be arrested if she returned. She appreciated that. In those circumstances, she must have known, or at least should reasonably have known, that she may still be wanted. If so, then the main reason why the district judge felt the delay to be significant falls away.[17]The overarching reason for the district judge's conclusion on proportionality lies, however, in his finding that "extreme hardship" would be suffered by the respondent's daughter if there was extradition. This conclusion was reached on the basis that she would be placed with foster parents and would suffer consequent displacement from her mother. We agree with a number of the criticisms made by the appellant of this conclusion and of the district judge's failure fully to consider the alternatives.[18]First, there is the strong possibility that the respondent would take her daughter with her to Ireland. If extradited, the likelihood is that the respondent would seek bail and that conditional bail might well be granted. If so, her daughter could remain with the respondent pending trial. If not, she could remain with her in custody, at least until she was 12 months and possibly longer.[19]If the respondent maintains her admission of the offence, one would expect trial and sentencing to take place relatively shortly. At that stage, the Irish court would take into account all the various factors relied upon by the respondent in personal mitigation for her offending, including the delay and the position of her daughter and her unborn daughter. It may be those mitigating factors are sufficiently strong not to lead to an immediate custodial sentence. If so, there would be no separation and displacement. If not, there may be some separation, depending on the length of sentence. If there is to be separation, then the Irish courts would be able to consider what arrangements would be appropriate for the child. As stated by Lord Thomas in Celinski at paragraph 12:
"...Although personal factors relating to family life will be factors to be brought into the balance under Article 8, the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction."
[20]There are a number of possibilities which do not involve foster care. These include the respondent's mother caring for her in England, Greece or indeed Ireland. The respondent's evidence in relation to her mother is that she is 45 and in good health. Her English is "not that perfect", but she is willing to come over from Greece to look after the daughter. The respondent said that the daughter could not go to Greece "as she does not have a passport". This is hardly an insuperable obstacle.[21]The respondent's evidence was that her preference would be for her daughter to be looked after by Mr Shabani, but that "if not then my mother would look after her". That is an acknowledgment that her mother could, if necessary, act as a primary carer, contrary to the district judge's finding that the respondent "has no immediate family who could help care for her as primary carers". If the respondent's mother can so act, then she could equally do so in Ireland as she has no ties to this country.[22]The district judge recorded the respondent's evidence to be that her mother does not speak sufficient English to do this on her own. This does not accord with the note of evidence with which we have been provided, but, even if that was correct, it is clear the respondent's mother could provide a very important supporting role. The social services report only considered this possibility in relation to the proposed carer Ms Dozhani. It was not considered in relation to Mr Shabani as his name was not put forward until after the report and his suitability had not been assessed.[23]It is correct, as the respondent's counsel points out, that there is uncertainty surrounding the position of the daughter. There is the possibility of hardship, but, on the evidence, we do not consider that it can be said that she will be taken into care and that there will consequentially be “extreme hardship”; but those findings were central to the district judge's conclusion on the balancing exercise.[24]The district judge made no findings in relation to the respondent's possible future child as this pregnancy has occurred since. If it is appropriate to give any weight to this, given the pregnancy has occurred during the currency of the extradition proceedings, then all the same points apply, save that the evidence as to the mother and baby prison arrangements in Ireland are all the more pertinent. I do not consider this to be a factor of separate significance.

Conclusion

[25]The offence for which the respondent's return is sought is extremely serious. She has admitted her guilt. There has been limited delay. The respondent had no good reason to consider, if she did, that she was no longer wanted for this serious admitted offence. The public interest in according extradition arrangements in such a case is extremely strong. It would require very strong counterbalancing factors to render the extradition disproportionate in such a case and it was for the respondent to establish such factors.[26]Considering the respondent's own position, she does not come close to establishing sufficient counterbalancing factors.[27]The potential hardship to her daughter is an important counterbalancing factor, but we do not consider that extreme hardship has been established or, if it has, that it is sufficient in all the circumstances to render extradition disproportionate. The Irish court will be able to consider personal factors such as these when sentencing in the event of a conviction.[28]In our judgment, it has not been made out, on the evidence, that extradition would be disproportionate and the district judge's conclusion to the contrary is wrong. Accordingly, this appeal is allowed. MS BOSTOCK: My Lord, thank you. As I understand it, it then falls for the case to be remitted back to Westminster Magistrates' Court. LORD JUSTICE HAMBLEN: Is that necessary, because we do not want delay, do we? MS BOSTOCK: I was looking at the legislation just over lunch. It does say if the court allows the appeal, it must quash the order and remit the case to the judge and direct him to proceed. I do not think there is any way out of that. LORD JUSTICE HAMBLEN: An order needs to be made which reflects that. I would hope that can be progressed reasonably expeditiously. MS BOSTOCK: My Lord, I can draft that and send it to your clerk immediately.