Enoh v The District Court for Prague 6, The Czech Republic [2017] EWHC 2237 (Admin)

Case No CO/368/2017[2017] EWHC 2237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16 th August 2017
Before
SIR ROSS CRANSTON(Sitting as a Judge of the High Court)
B E T W E E N:
Between
JANA ENOHAppellantTHE DISTRICT COURT FOR PRAGUE 6, THE CZECH REPUBLICRespondent
Transcribed by Opus 2 International Ltd.(Incorporating Beverley F. Nunnery & Co.)Official Court Reporters and Audio Transcribers5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737admin@opus2.digital
This transcript has been approved by the JudgeA P P E A R A N C E SMR B SEIFERT (instructed by Oracle) appeared for Appellant.MR A PAYTER (instructed by the Crown Prosecution Service) appea red for Respondent.
J U D G M E N TIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.SIR ROSS CRANSTON:
[1]This 35-year-old appellant appeals against the decision of District Judge Wright made on 20th January 2017 to order her extradition under a conviction European Arrest Warrant to the Czech Republic. That was issued by the District Court in Prague in the Czech Republic on 16th November 2015 and issued for service here by the National Crime Agency on 14th April 2016. The warrant covers one offence of night-time robbery committed on 28th September 2000. A sentence of 26 months' imprisonment was imposed by the Czech court and 268 days of that sentence remain to be served. The sole ground of appeal is that it would be disproportionate to extradite the appellant pursuant to Article 8 of the European Convention on Human Rights and s.21 of the Extradition Act 2003.[2]The warrant sets out the details of the offending. It was, as I have said, a night-time robbery. It involved the appellant and another person kicking the female victim on the ground. The appellant accepted that, during the probation period, on 14th July 2002 she committed offences of theft and unauthorised possession of a credit card.[3]The appellant became pregnant on several occasions, and she applied, successfully, to the Czech authorities to postpone serving her sentence. That suspension was until 11th February 2011. Without notifying the Czech authorities, she came to the United Kingdom in February 2010 with her two children. In the United Kingdom she has had three further children.[4]The appellant was extradited to the Czech Republic in 2014 following an unsuccessful appeal to this court: Enoh v The District Court in Prague, Czech Republic [2014] EWHC 2326 (Admin). She was extradited on 22nd July 2014 and was sent to a prison in Prague. However, the further information provided by the Czech Judicial Authority informs us that she was released on 7th August 2014 because she was pregnant again, at that stage with her fifth child.[5]The further information states that the District Court in Prague revoked the suspension of the term of imprisonment due to the pregnancy on 4th March 2015. It adds that she did not notify the Czech authorities of her intention to travel to the United Kingdom, nor of her address in this country. However, the further information also states that she was not subject to bail, nor were any conditions set for her.[6]During her extradition to the Czech Republic at that time, the evidence is that her partner was the carer for her four children. However, they had now separated. Unfortunately, the appellant had been addicted to Class A drugs. As a result, her children were taken into care by a local authority children's services department in this country. She has had regular supervised visits with her children. Other evidence before the district judge was that she worked as a part-time cleaner.[7]That was the factual position before the district judge. In the course of her judgment, the district judge, having set out the facts and having referred to the nature of the offending, stated under the heading "findings" that the appellant was not a reliable witness. She had given two separate explanations for her return to the United Kingdom in 2014. The district judge then said that she found it inherently unlikely that the Czech Republic would have released a heavily pregnant prisoner by reason of her pregnancy without being satisfied that she had somewhere to go:
"I am satisfied that [the appellant] came straight to the UK as she was determined to. I am satisfied that [the appellant] was told that she was released subject to a condition not to leave the Czech Republic and that she did so anyway."
The district judge then went on to state that she could not accept that the appellant had not committed offences during her time in this country: it was a criminal offence to be in possession of heroin and the appellant accepted that she has been an addict.[8]Turning to the balancing exercise laid down in Celinski v Polish Judicial Authorities [2015] EWHC 1274 (Admin), the district judge set out factors supporting and against extradition. Among the former she identified what she said was the serious offence contained in the warrant; that the appellant had deliberately absented herself from the Czech Republic in 2010 and, having been extradited, did so again; that her personal circumstances were now less compelling than they were in 2014 because her children were cared for by the local authority; that the time she was to serve was relatively short; and that she "has made very determined efforts to avoid serving her sentence".[9]The district judge next considered the factors weighing against extradition. Amongst those was the interruption of contact with her children and:
"There has been a substantial period of time elapsed since the offence for which [the appellant] is to serve the remainder of her sentence. She was only 18 years at the time of the offence and she is now 35 years old. However, against that it must be noted that [the appellant] has herself been entirely responsible for the delay that has occurred."
The district judge then concluded that in the light of the serious nature of the offences and "the lengthy sentence that has been passed", it was necessary for the appellant to be extradited.[10]Subsequent to the district judge's decision, final orders have been made by a Family Court that the two eldest of the appellant's children will be placed together with long-term foster carers and the three youngest children will be made subject to placement orders, which means that, if adoptive parents can be found, they would be placed together. At this point, the appellant seems still to have monthly contact with her children.[11]In attractively put and careful submissions on the appellant’s behalf, Mr Seifert contends that the district judge's balancing exercise in relation to Article 8 of the Convention is flawed. He identifies what he contends are five flaws in her judgment. Some of these are, in his submission, important factual errors which, albeit that they have not entered the Celinski balancing exercise, have coloured its outcome. Firstly, he submits that there was no evidence before the district judge that an address was available in the Czech Republic in 2014 when she was released. In other words, because we know from the further information that no conditions were set for her release because of her pregnancy, it was not unlawful for the appellant to return to the United Kingdom. The district judge was wrong in that regard.[12]Secondly, Mr Seifert submits that there was no evidence that the appellant had committed criminal offences, albeit that the possession of a Class A drug is a criminal offence. There was no evidence, for example, that the appellant had committed shoplifting or more serious offences so as to feed her habit. In Mr Seifert's submission, she should have been treated as if she were of good character.[13]Thirdly, in Mr Seifert's submission the district judge was wrong in her approach to delay. The fact is that the offending dates back to 2000 and it cannot be regarded as entirely the appellant's fault that that period of time has elapsed since the matter has reached this point. Mr Seifert submits, for example, that the Czech authorities could have provided a mother and baby unit when the appellant was previously extradited which would have allowed her to complete her sentence when she was extradited in 2014.[14]Next, Mr Seifert submits that the district judge was wrong to refer to the "determined efforts" by the appellant to resist extradition and incarceration. All she was doing was to exercise the rights that she had under the law and to apply for postponement of prison during her pregnancy.[15]Finally, he contends that the description of the sentence which the appellant remains to serve as lengthy was inaccurate: the remaining 268 days means that there are less than nine months to serve.[16]In my view, these points do not mean that the outcome of the balancing exercise reached by the district judge is wrong. That is the issue which I need to address under Celinski. The approach of the district judge to the appellant's case was coloured by the fact that she was not necessarily a credible witness. In relation to her being a fugitive, the district judge had before her various accounts of why the appellant had returned to this country having been released in 2014 and whether she had kept in touch with the authorities there. Doing so was obviously necessary given that she had been released because of her pregnancy. The district judge was entitled to reach the conclusions she did in this regard in the passage I quoted earlier in the judgement.[17]Mr Seifert’s second point goes nowhere: the fact is that the appellant had committed offences in this country by reason of her possession of Class A drugs. She frankly admitted it.[18]As to delay, the third point, the district judge took delay into account in the appellant’s favour and also took into account that the offending in 2000 was when she was still relatively young. The district judge cannot be criticised for the approach she took in relation to delay. The reality is that the delay is attributable to the appellant’s pregnancies and her failures to keep in touch with the Czech authorities.[19]Then there is the judge’s reference to the "determined efforts" by the appellant to resist imprisonment. That may not refer to her repeated deferrals of sentence because pregnancy, but it does cover the opposition to her extradition in 2014 and to her subsequent avoidance of serving the sentence by leaving the Czech Republic and not keeping in touch with the authorities there. It cannot be that somehow the absence of mother and baby units in Czech prisons, or at least for this appellant, can count against extradition. As I have said, I cannot regard the approach of the district judge to this aspect as having flawed her approach to the balancing exercise.[20]As far as the length of the sentence is concerned, the original sentence was not a short sentence; it was 26 months' imprisonment resulting from a serious night-time robbery in the company of another person. The fact that the appellant now has less than nine months to serve may or may not be regarded as lengthy depending on one's perspective, but it still means that there is a considerable sentence which the appellant must serve.[21]On the whole, I cannot regard the conclusion of the district judge as being wrong. She carried out the balancing exercise as required by Celinski. It may be that another judge would have approached the balancing exercise somewhat differently, but that is not the issue before me. I dismiss the appeal. SIR ROSS CRANSTON: Anything more on the matter? MR SEIFERT: My Lord, no. 22. SIR ROSS CRANSTON: Thank you very much indeed. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737 admin@opus2.digital __________ This transcript has been approved by the Judge