Andrea Ats v Municipal Court of Dabas, Hungary
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWHC 1497 (Admin) |
| Docket Number | Case No: CO/5049/2016 |
| Date | 23 June 2017 |
| Court | Queen's Bench Division (Administrative Court) |
[2017] EWHC 1497 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Langstaff
Case No: CO/5049/2016
Paul Mason (instructed by Lansbury Worthington) for the Appellant
Alexander dos Santos (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 23 rd. February 2017
Approved Judgment
The appellant appeals against an extradition order made by District Judge Devas on 30 th. September 2016 at the Westminster Magistrates' Court. The appeal focuses centrally upon whether the judge was wrong to hold that the public interest in extradition outweighed the interference which that extradition would undoubtedly cause to the Article 8 rights of both the appellant and her children to private and family life. He concluded that that decision was "finely balanced", though what weighed significantly in it was a conclusion of fact which he had made to the effect that the claimant was a "fugitive" in that she had in effect known that the authorities in Hungary required that she should tell them of any change of address and provide contact details but had deliberately chosen not to do so when she came to the UK in 2011.
The European Arrest Warrant pursuant to which the extradition request was made was an accusation warrant. It alleged complicity in a significant fraud on a bank. There has been no dispute before me as to the District Judge's conclusion that if convicted such an offence might and probably would justify a significant term of imprisonment.
The judge's conclusion was that extradition to face such a charge was not a disproportionate interference with her Article 8 rights (and those of her children) such that extradition should not issue.
Under s14 of the Extradition Act 2003 ("the Act"):
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –
(a) committed the extradition offence (where he is accused of its commission) or
(b) become unlawfully at large (where he is alleged to have been convicted of)."
Although the judge's determination that the appellant was in colloquial terms a "fugitive" (that expression does not as such appear in the Act, and sits more easily with passage of time under section 14(b) rather than (a)), no objection is taken to the judge using that description as shorthand for a person who knowingly absented herself from the jurisdiction, knowing that she could be required to attend Court, who was obliged to let the authorities know of her whereabouts and contact details but deliberately chose not to do so.
Section 21A requires a judge to decide whether extradition would be compatible with or disproportionate to Convention rights within the meaning of the Human Rights Act 1998. It specifies the matters which are to be taken into account in respect of proportionality, each of which Judge Devas considered.
Section 26 provides for an appeal to be brought before the High Court where the judge has ordered a person's extradition; and section 27 provides for the powers of the Court on such an appeal. So far as is material: —
"(1) On an appeal under section 26 the High Court may –
(a) allow the appeal;
(b) dismiss the appeal.
(2) The Court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that –
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently.
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that –
(a) ….evidence is available that was not available at the extradition hearing;
(b) the…evidence would have resulted in the appropriate judge deciding a question before him at the extradition differently.
(c) if he had decided the question in that way, he would have been required to order the person's discharge."
The Appellant and her leaving Hungary
The appellant is a single mother, with three dependent children. She has two daughters by a Hungarian man from whom she separated in around 2005 because of his violence toward her. She married another Hungarian, but that relationship was short-lived, and after some time during which she said the father paid no regard to their daughters, he attempted to make contact with her and demonstrated a wish to see them. He threatened to take them, and engaged a solicitor to take steps towards establishing contact by legal process.
In the meantime, the allegation of the appellant's complicity in fraud had come to light. The appellant was interviewed about it, and is said to have made some admissions as to her role in assisting another to obtain a significant bank loan by advancing fraudulent details. This interview occurred in 2010. She plainly formed the intention of leaving Hungary over the next few months, though her doing so at the precise time she did appears to have been precipitated by her agreeing to see the solicitor acting for her erstwhile partner in respect of contact with the children, telling him, deceptively, that she would meet on 18 December. The day before that set for the meeting she left with her daughters for the UK. The Hungarian authorities had not been able to trace her thereafter, until the present proceedings were begun.
The judge held in respect of that that he was satisfied to the criminal standard that she was aware of her obligations to notify the authorities of any change of address and failed to comply with her obligations: he rejected the account she had given him to the contrary on the grounds it was not credible.
He concluded in respect of an argument addressed to him under s14 of the Act, to the effect that it would be oppressive to extradite the appellant, that it would not be, since she was a fugitive.
On behalf of the appellant, Mr Mason argues that the judge was not entitled to reach that decision. He did not take into account matters which he should have done: that the claimant was fleeing domestic violence; that this was her primary motive for leaving; that she had spent several months between her interview and leaving the country in Hungary, which argued against her wishing to become a fugitive. Against that, Mr dos Santos says, in my view correctly, that the finding that the appellant was a "fugitive" was amply justified. It was one of fact, and has to be accepted unless it was reached by the wrong approach or was plainly perverse. It was neither.
I reject the attack upon the conclusions by the judge (1) that there was no oppression here, and (2) that such delay as there was was the responsibility of the appellant.
The difficulty in sustaining Mr Mason's argument is that the appellant asserts that her reasons for leaving Hungary were to escape the domestic violence of her ex-husband and (grounds paragraph 28) that she did so in order avoid further assaults at his hands. These did not prevent her telling the authorities where she had gone and why. The judge decided that he could not accept much of what she said about the circumstances of her leaving Hungary as being credible. He found beyond reasonable doubt that she was well aware of her obligations to tell the Court, the prosecutor's office or the investigative authority of her home address and of her place of stay, and any change in her home and place of stay, not later than within three working days after moving. She did not do so. He was satisfied beyond reasonable doubt that she deliberately left Hungary without giving details to the relevant authority, and did not believe her when she says she was unaware of her obligations. Those are powerful findings of fact by a judge who heard her give evidence and be challenged upon it. I...
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