HH v Deputy Prosecutor of the Italian Republic, Genoa

JurisdictionEngland & Wales
JudgeLord Justice Laws
Judgment Date11 May 2011
Neutral Citation[2011] EWHC 1145 (Admin)
Docket NumberCO/3214, 4688, CO/6954/2010,Case No: CO/3214, 4688 & 6954/2010
CourtQueen's Bench Division (Administrative Court)
Date11 May 2011
The Queen of the application of HH
Claimant
and
City of Westminster Magistrates Court
Defendant
HH
1st Appellant
and
Deputy Prosecutor of the Italian Republic, Genoa (on behalf of the Italian Judicial Authorities)
Respondent
PH
2nd Appellant
and
Deputy Prosecutor of the Italian Republic, Genoa (on behalf of the Italian Judicial Authorities)
Respondent

and

X, Y and Z (through the Official Solicitor, their Litigation Friend
Intervenors/ Interested Parties

[2011] EWHC 1145 (Admin)

Before:

Lord Justice Laws

Case No: CO/3214, 4688 & 6954/2010

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Alan Jones QC and Mr John Jones (instructed by Wainwright & Cummins) for the Claimant and 1st Appellant

Mr John Hardy QC and Mr Ben Lloyd (instructed by the CPS) for the Respondent

Mr Alun Jones QC and Mr John Jones (instructed by Wainwright & Cummins) for the Claimant and 1st Appellant

Mr Ian Wise QC and Mr Steven Powles (instructed by Wainwright & Cummins) for the 2nd Appellant

Mr Hugo Keith QC and Ms Caoilfhionn Gallagher (instructed by The Official Solicitor) for the Interested Parties (by written submissions)

Hearing dates: 8 December 2010 and 7 April 2011

Lord Justice Laws

INTRODUCTION

1

There are three matters before the court. (1) Mrs H ("HH") renews her application for permission to seek judicial review of the decision of DJ Evans given at the City of Westminster Magistrates Court on 4 February 2010 not to discharge or adjourn extant extradition proceedings against her. (2) HH also brings a statutory appeal against the order of DJ Evans at the same court on 14 April 2010 that she be extradited to Italy to serve a sentence of 9 years 6 months and 21 days imprisonment for drugs offences. (3) Her husband Mr H ("PH"), who was her co-accused in Italy, appeals against the order of DJ Evans at the same court on 21 June 2010 that he be extradited to Italy to serve an outstanding sentence of some four years.

2

The judicial review claim was lodged in this court on 8 March 2010. Permission was refused on the papers by Dobbs J on 26 March 2010. The statutory appeals brought pursuant to s.26 of the 2003 Act were respectively lodged on 16 April 2010 (HH) and 23 June 2010 (PH). On 9 August 2010 Ouseley J ordered that the renewed application for judicial review permission be dealt with by the Divisional Court at a rolled up hearing with the substantive judicial review to follow if permission were granted, and that the statutory appeals be dealt with at the same hearing. Ouseley J also granted permission for PH and HH's three children, acting by their litigation friend the Official Solicitor, to intervene in the proceedings and to file evidence in the appeals. The children are: X born on 23 November 2000, Y born on 21 November 2003, and Z born on 10 June 2009.

3

The case first came before me on 8 December 2010. Certain issues were canvassed on that occasion and I will return to them; but the major questions in the case, which were argued at the restored hearing on 7 April 2011, were and are (a) whether it would be unjust or oppressive to extraditeby reason of her mental condition, within the meaning of s.25(2) of the Extradition Act 2003 ("the 2003 Act"), and (b) whether the appellants' right to respect for family life guaranteed by Article 8 of the European Convention on Human Rights ("ECHR") would be violated by their extradition: s.21 of the 2003 Act. The focus of the Article 8 claim is the plight of the H's three young children in the event that their parents are extradited. I will set out the material legislation in due course. I adjourned the case on 8 December 2010 so that the Genoese prosecuting authority (then represented by Mr James Lewis QC) might obtain up-to-date psychiatric evidence relating to HH, and to afford the Official Solicitor an opportunity to file further evidence (if so advised) and written submissions in the interests of the children. Those steps were taken and the case was re-listed before me on 7 April 2011, when I heard live evidence from two psychiatrists, Dr Dove and Dr Joseph, and full argument on the Article 8 and s.25 issues. Mr Ian Wise QC then represented PH and Mr John Hardy QC the prosecuting authority. Neither had appeared on 8 December. Mr Hardy submitted that it was wrong in principle for interested third parties, such as the appellants' children, to be permitted to take part in extradition proceedings. I will deal with that in due course.

THE LEGISLATION

4

The relevant provisions of the 2003 Act are as follows. S.2(2) requires (so far as relevant) a Part 1 European Arrest Warrant ("EAW") to contain

"(b) the statement referred to in subsection (5) and the information referred to in subsection (6)".

S.2(5) and (6) provide:

"(5) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is—

(b) particulars of the conviction…"

5

S.4(3) and (5) provide:

"(3) The person [sc. arrested under a Part 1 EAW] must be brought as soon as practicable before the appropriate judge.

(5) If subsection (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge."

6

S.20 provides in part:

"(1) If the judge is required to proceed under this section… he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

7

S.21 provides in part:

"(1) If the judge is required to proceed under this section… he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.

(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge."

8

S.25:

"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.

(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.

(3) The judge must—

(a) order the person's discharge, or

(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."

9

S.26 confers a right of appeal to this court against an order for extradition, on a question of law or fact and without any requirement of permission to appeal. S.27, cross-headed "Court's powers on appeal under section 26", provides:

"(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) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

10

I should also set out ECHR Article 8, which as is well known provides:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society… for the prevention of disorder or crime…"

HISTORY

11

PH and HH were arrested in Italy on 23 September 2003 for serious drugs offences. They were caught red-handed escorting a cargo of 205.7 kilograms of hashish which had been imported to...

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