Abasuru v Regional Court In Opole, Poland [2016] EWHC 2787 (Admin)

[2016] EWHC 2787 (Admin)Case No CO/6240/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
S.26 EXTRADITION ACT 2003
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 November 2016
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
PHELIS ABASURUAppellantREGIONAL COURT IN OPOLE, POLANDRespondent
Myles Grandison (instructed by Lansbury Worthington Solicitors) for AppellantDaniel Sternberg (instructed by CPS) for RespondentHearing Hearing date: 19 October 2016
Judgment ApprovedMr Justice Supperstone :
[1]The Appellant appeals against the decision of District Judge Goldspring, made on 3 December 2015, to order his extradition pursuant to a European Arrest Warrant (“EAW”) issued on 10 April 2014 by the Regional Court in Opole, Poland, the Respondent, for him to serve a sentence of two years’ imprisonment for an offence of conspiracy to export heroin. The EAW was certified by the NCA on 20 May 2014.[2]Following an oral permission hearing Singh J granted permission on two grounds: first, that the EAW is invalid under s.2 of the Extradition Act 2003 (“the 2003 Act”) (Ground 1); and second, that the Appellant’s extradition is a disproportionate interference in his and his family’s rights under Article 8 ECHR (Ground 2).

Ground 1: the EAW is invalid under s.2 of the 2003 Act

[3]Box D of the EAW records that the Appellant was present at conviction. Box E details the offence:
“In the time period from 24 December 2011 until 6 February 2012, in Holland and Poland, in order to achieve private financial gain, acting jointly and in collaboration with Mateusz Lechowicz and Milosz Zielonka against the provisions of the law, they attempted to execute intra-community delivery from Holland to Canary Islands concerning substantial quantity of narcotic drug in the form of 550,41grams of heroin, worth approximately PLN110062. Mateusz Lechowicz did it by transporting the heroin inside his body, he had swallowed the above-mentioned narcotic drug and then he went to the airport in order to go to Canary Islands, however they did not achieve the intended goal due to the fact that Mateusz Lechowicz did not reach the airport and his bad state of being i.e. for the crime from art.13.1 of the penal code in connection with the art.55 paragraph 1 and 3 of the law from 29th July 2005 on prevention of drug abuse.”
The framework list has been marked for an offence of illegal manufacture, processing or smuggling of narcotic drugs or their distribution.[4]The Respondent provided further information. In a letter dated 1 September 2014 the Respondent confirmed that the Appellant was present when the sentence was delivered on 10 May 2013, that he appealed the verdict, he was present at the hearing in the Court of Appeal and when the verdict was delivered, and his defence counsel participated in the entire proceedings.[5]Mr Myles Grandison, for the Appellant, submits that the EAW fails to comply with s.2(6)(b) of the Act.[6]Section 2(6)(b) states that a valid EAW must contain the following information:
“Particulars of the conviction”
[7]Article 8(1)(e) of the Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States provides that a EAW “shall contain” the following information:
“A description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;”
[8]Mr Grandison submits that since the extradition hearing took place, the law pertaining to s.2(6)(b) has altered significantly. At the date of the hearing the leading authority pertaining to the sufficiency of particulars contained in “conviction warrants” was Constantin Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin) where Hickinbottom J said (and Moses LJ agreed) that:
“25. Although they have to be construed in the light of the Framework Decision, the starting point for the requirements of a conviction warrant must be the terms of the statutory provisions in section 2 of the 2003 Act… 26. In section 2, in respect of information to be included, there is a patent dichotomy between the requirements for an accusation warrant on the one hand, and a conviction warrant on the other. Section 2(4)(c) expressly requires particulars of the circumstances of the offence to be included in an accusation warrant: section 2(6)(b) does not require those particulars in a conviction warrant. It must be taken that Parliament intended the information as to the circumstances of the underlying offence required in an accusation warrant to be different from that required in a conviction warrant…”
[9]In Howell v Deputy Attorney General Court of Appeal of Douai, France [2012] EWHC 150 (Admin) Aikens LJ said that the requirement to set out the “particulars of conviction” in accordance with s.2(6)(b) is satisfied “if the description is sufficiently indicative of what offences the offender has been convicted” (para 24).[10]However in King v Public Prosecutors of Villefranche sur Saone, France [2015] EWHC 3670 (Admin), Collins J, having referred to the observations of Hickinbottom J set out above said (and Lloyd Jones LJ agreed) that:
“18. While I recognise the force of this reasoning, I do not think it is compliant with the approach which Article 8 of the Framework Decision requires. The obligation in section 2(4)(c) to give ‘particulars of the circumstances in which the person is alleged to have committed the offences’ is tautologous and adds nothing to the requirement to give a description of ‘the circumstances in which the offence was committed’ (Article 8(1)(e)). The only distinction between accusation and conviction is that the circumstances are alleged in an accusation case but established in a conviction case. ‘Particulars of the conviction’ are not necessarily limited since time, place and degree of participation are needed in order for there to be compliance with Article 8. I do not believe that the use of the word ‘particulars’ in s.2(4)(c) adds anything to the Article 8(1)(e) test and in s.2(6)(b) ‘particulars’ must extend beyond a mere recital of the conviction. What is needed in all cases is sufficient information to enable any mandatory or optional bar contained in Article 3 and 4 of the Framework Decision to be considered whether by the authority in the executing state or the requested person. 19. While it can be said that a convicted person will, if he attended his trial, know the full particulars, it must be borne in mind that, as in this case, the person may have been convicted in absentia. In those circumstances, a conviction warrant will be closer to an accusation warrant if there is a right of retrial. Section 2(6)(b) has to cater for such a case. In any event, knowledge of the full circumstances does not necessarily always assist since what the executing authority must know is whether there may be any bars and it is obviously undesirable and would cause delay if the requested person had to obtain information from the requesting state which could and should have been in the warrant.”
[11]Collins J continued:
“21. As Hickinbottom J in my view correctly observed in Sandi, the level of particularity to meet the requirements of s.2(6)(b) will depend on the circumstances of each case. In many, where for example offences were committed wholly within the requesting state and involved acts directed at individual victims, little would be required beyond time, place and that the person did the criminal act which led to conviction. 22. I do not believe that the particulars required whether for an accusation or a conviction warrant need great detail. As I have said, provided they give sufficient information to enable any available point on a bar to be taken and the ability to judge whether the offence is properly listed in the framework list and dual criminality can be shown if that should be needed, they will suffice whether for accusation or conviction cases.”
[12]Mr Grandison suggests that the reasoning of the court in King is further fortified following the decision in Cretu v Local Court of Suceava, Romania [2016] EWHC 353 (Admin), where the court clarified the interaction between the 2003 Act and the Framework Decision (see Burnett LJ at para 17).[13]Mr Grandison submits that it is not possible to determine, from Box E of the EAW (see para 3 above), the role or even the nature and degree of the Appellant’s involvement in this offence. Whilst the warrant provides sufficient detail regarding Mr Lechowicz’s role, no mention is made of the part that the Appellant is said to have played. The conduct involves a cross-border offence (touching upon three jurisdictions) to transport narcotics. It is not apparent, he submits, whether the Appellant funded the offence, supplied the narcotics, drove Mr Lechowicz to the airport or provided some other assistance.[14]Mr Grandison invites me to adopt the approach in King, whereas Mr Sternberg invites me to prefer the approach in Howell and Sandi. Mr Grandison suggests that Cretu supports the King approach, whilst Mr Sternberg makes the point that Cretu is not concerned with s.2, but s.20.[15]I accept the submission made by Mr Daniel Sternberg, for the Respondent, that if notwithstanding the different wording of s.2(4)(c) and s.2(6)(b) it is correct that an accusation and conviction warrant must contain the same particulars, this EAW satisfies those requirements. I agree with Mr Sternberg that it is not necessary for this court to resolve any conflict between King and Sandi. Whichever approach is taken the EAW in this case contains sufficient particulars. There are sufficient particulars to confirm that the framework list at Box E.1 has been properly marked for illegal manufacture, processing or smuggling of narcotic drugs. The Appellant does not complain that he is unable to raise any particular bar as a result of an asserted lack of particulars.[16]I am entirely satisfied that this EAW provides sufficient particulars of conviction. It alleges a joint enterprise seeking to export drugs, involving three participants, each of whom is named. The specific type of drugs and the precise weight of the drug, which they sought to transport and its value are all given. The warrant specifies the time and places at which the offence took place. It also specifies what the Appellant and his collaborators did, namely together they attempted to import heroin. In pursuance of this joint enterprise Lechowicz swallowed the drugs and went to the airport but did not succeed in importing the drugs due to ill health. The fact that Lechowicz, rather than the Appellant, was the “swallower” of the drugs does not mean that the Appellant was not a part of the attempt to transport them. The provisions of law offended in Poland are set out.

Ground 2: Article 8 ECHR

[17]The Appellant contends that extradition would be disproportionate with his and his family’s Article 8 rights. Central to the Article 8 challenge is Mrs Abasuru’s mental health and her ability to care for three young children (aged 8, 3 and 1 years) in the absence of the Appellant. Mr Grandison made clear in his oral submissions that the focus is on the rights of the children, not on those of the Appellant or his wife.[18]Mr Grandison submits that the District Judge erred in a number of respects when reaching his conclusion on the Article 8 issue, most notably: i) At paragraph 66 of his judgment the DJ stated that “…his wife’s depression is unsupported by evidence”. In fact Dr Forrester, a Consultant and Honorary Senior Lecturer in Forensic Psychiatry, had provided a written report (which included excerpts from Mrs Abasuru’s medical records) and he gave oral evidence. He had diagnosed Mrs Abasuru as currently suffering from “a moderate-severe depressive illness”. ii) The DJ failed to take into account the written and oral testimony of Mrs Abasuru. The only reference to her evidence is at para 18 of the judgment where he states that the Appellant had served a statement from his wife. iii) He failed to take any proper account of the interests of the children.[19]Plainly the DJ erred in stating that Mrs Abasuru’s depression is “unsupported by evidence”. There was written and oral evidence, in particular from Dr Forrester, which the DJ should have referred to and considered in his judgment. He did not deal with Dr Forrester’s evidence, nor did he make findings in relation to Mrs Abasuru’s evidence.[20]That being so the question for this court is whether or not the DJ made the wrong decision (see Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), per Lord Thomas CJ at paras 19-24).[21]The DJ considered the relevant authorities on Article 8 ECHR, in particular H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2002] UKSC 25 which involved the interests of children, and he conducted the balancing exercise as required by Celinski.[22]In H(H) Baroness Hale said (at para 33) that “Article 8 has to be interpreted in such a way that [children’s] best interests are of primary consideration, although not always the only primary consideration and not necessarily the paramount consideration”.[23]The DJ considered factors in favour of extradition (at paras 63-65) and factors in favour of discharge (at paras 66-67). At paragraph 68 he concluded:
“Having carefully undertaken the balancing exercise I am satisfied that the public interest in honouring this extradition request and the factors in favour of discharge are outweighed and therefore is NOT a disproportionate interference to his and his family’s Article 8 ECHR rights. I must therefore reject this challenge.”
[24]Mr Sternberg submits that there is no evidence that Mrs Abasuru would be incapable of caring for their children in the event of the Appellant’s extradition notwithstanding her depression to the extent that the consequences of extradition will amount to an exceptionally severe interference in the Appellant and his family’s Article 8 rights.[25]The Appellant said little in his evidence about his wife’s mental health. In his proof of evidence (at para 10) he said: “Ewelina is also not feeling mentally well lately. … She believes that the circumstances in which our family has been put are all her fault and it makes her depressed. I insisted that she consulted her GP. Upon her examination, she was further referred on to some counselling.” (See also para 66).[26]Mrs Abasuru, in her witness statement (at para 10) said that she had been “feeling very depressed lately”, and “the thought of [the Appellant] not being here for me and my children makes me feel even worse”. Her husband insisted she consult her doctor (para 11); she saw her GP and she is now attending counselling sessions/therapy (para 12). In a second statement providing up-to-date information in relation to her and her husband’s circumstances, Mrs Abasuru said that since February 2016 she has been treated with Sertraline (antidepressant), her dosage has recently been increased to the highest possible, and she has also been prescribed Zopiclone to help her sleep (para 5). She sees her doctor at Medway Community Mental Health Team for checkups on a regular basis (para 6).[27]In his report dated 15 November 2014 (which was before the DJ) Dr Forrester sets out at para 2.1 a summary of his conclusions:
“Ewelina Abasuru is a 30-year-old Polish woman who is currently suffering from a moderate-severe depressive illness. Her condition began in 2012 and worsened after the birth of her second child, in February 2013. She has previously experienced suicidal thoughts as a component of her depression and I would be concerned about a further exacerbation in her condition should her husband be extradited.”
At para 10.8 Dr Forrester states that in his opinion Mrs Abasuru would benefit from treatment for her condition. He observes that to that end, it is encouraging to note that she has been referred by her GP for treatment with talking therapies, which were scheduled to start in the period after he interviewed her (which was on 7 October 2014).[28]Dr Forrester has now prepared an addendum to his report dated 16 October 2016. At paragraph 2 Dr Forrester sets out a summary of conclusions:
“2.1 Ewelina Abasuru is a 32-year-old Polish woman who continues to present with a moderate-severe depressive illness. Since I last assessed her, the condition again worsened following the birth of her third child, and it has since become chronic. 2.2 She is now receiving support and treatment from specialist mental health services in the community. However I consider a further deterioration in her condition very likely if her husband is extradited to Poland.”
[29]In Dr Forrester’s opinion Mrs Abasuru continues to require the support and treatment of her local community mental health team (para 10.5). The depression from which she suffers is chronic, “[n]onetheless, people who present with chronic mental health problems can still make improvements over time with treatment, and her engagement with specialist mental health services is likely to be helpful in that regard” (para 10.6).[30]Dr Forrester recommends that a copy of this report be forwarded to Mrs Abasuru’s GP “because she remains actively unwell and in need of ongoing support and treatment in the community” (para 10.9).[31]Factors in favour of extradition for the DJ were that the underlying offence is serious, there is a considerable custodial sentence left to be served, the Appellant is a fugitive from justice and this is not a case of a sole carer for their children. There is no challenge on this appeal to those factors.[32]When considering factors in favour of discharge the DJ did take account of the interests of the children (judgment, para 66).[33]I have now had regard to the contents of the report of Dr Forrester and the witness statements of Mrs Abasuru that were before the DJ. It has not been suggested that their oral evidence differed in any material respect from their written evidence.[34]I am not persuaded that the evidence of Dr Forrester (the report and the addendum) and the evidence of Mrs Abasuru, when taken into account in support of factors in favour of discharge, leads after the balancing exercise is undertaken, to the conclusion that the DJ made the wrong decision. Mrs Abasuru requires the need of ongoing support and treatment in the community, however there is no evidence that with that support she will not be able to care for her children. The Appellant’s extradition will no doubt cause suffering for Mrs Abasuru and the children, but I do not consider that there will be a disproportionate interference in the Appellant and his family’s Article 8 ECHR rights.[35]Accordingly, for the reasons I have given this appeal is dismissed.