Hoholm v Government of Norway
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Mr Justice Wilkie |
| Judgment Date | 26 June 2009 |
| Neutral Citation | [2009] EWHC 1513 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4193/2009,CO/4193/2009 |
| Date | 26 June 2009 |
Lord Justice Stanley Burnton
Mr Justice Wilkie
Case No: CO/4193/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Matthew Butt (instructed by Hallinan Blackburn Gittings & Nott) for the Appellant
Corinne Bramwell (instructed by the CPS) for the Respondent
Hearing date: 19 June 2009
Lord Justice Stanley Burnton:
Introduction
This is an appeal under section 103(1) of the Extradition Act 2003 against the decision of District Judge Workman sitting at Westminster Magistrates' Court made on 5 March 2009 to order the Appellant's extradition to Norway, a Part 2 territory for the purposes of the Act. Her case was sent to the Home Secretary to decide whether she should be extradited, and on 27 April 2009 she decided that the Appellant should be extradited.
At the conclusion of the hearing of submissions we stated that the appeal would be allowed and the order made by the District Judge set aside for reasons we should give in writing subsequently. It followed that the Appellant should be discharged, and we so ordered. This judgment sets out my reasons for allowing the appeal.
The facts
The Appellant married her husband Tommy Hoholm in 2000. They have two children, Timothy, born in July 2000 and Joachim, born in February 2002. They lived in Norway. The marriage broke down in August 2004, and proceedings began in Norway concerning the custody of the children.
On 15 July 2004, Mr Hoholm was granted daily care of the children. On 7 September 2004, a District Court ordered the Appellant day-to-day care.
In July 2005 without informing Mr Hoholm the Appellant removed the children from Norway and took them to Slovakia. According to the subsequent judgment of the Vesteralen District Court this was a breach of the District Court's decision of 7 September 2004. The custody proceedings continued in her absence. On 21 September 2005, the Vesteralen District Court made Mr Hoholm the daily carer of both children and granted him sole parental responsibility. The Appellant appealed this decision in her absence. On 10 March 2006 the Halogaland High Court allowed her appeal in part. It upheld the decision to appoint Mr Hoholm as day-to-day carer but vested parental responsibility in both parents.
Following the decision of 10 March 2006 the Appellant failed to return the children to Mr Hoholm in Norway. She apparently came to this country on holiday in January 2009: hence the extradition proceedings here.
The Norwegian request for the Appellant's extradition states that she is charged in Norway with a violation of section 216, first paragraph, of the Norwegian Penal Code “For having assisted to cause a minor to be unlawfully abducted or kept abducted from her parents or other proper person's care”. The italics are mine; the italicised words may be significant. The request states that the basis of the charge is as follows:
In early July 2005 in Norway, she unlawfully took with her the children Timothy Palencik Hoholm, dob 28 th July 2000, and Joachim Palencik Hoholm, dob 26 February 2002, out of the country, and since has not returned them. The act was done in violation of an order issued by Vesterålen District Court on 7 thSeptember 2004, where it was determined that she and the children's father, Tommy Hoholm, should have shared parental responsibility until a legal decision was made, and where a visitation arrangement was established, and that, in the order, a prohibition was issued stopping either parent from taking the children out of the country without the other parent's consent. By Hålogaland High Court's judgment of 10 th March 2006, Tommy Hoholm was awarded daily care of the children, and she and Hoholm were awarded joint parental responsibility. An appeal of the Hålogaland High Court's judgment to the Supreme Court was rejected by order of the Supreme Court Appeals Commission on 23 rd May 2006.
The victim, Tommy Hoholm, has petitioned to press charges.”
The request for extradition has attached the charge against the Appellant. As translated, it is as follows:
“The Chief Constable of Mid-Hålogaland
Hereby charges: Ms Martina Palencikova, dob 14 th September 1979, Liptovsky Hradok, 03301 Slovakia, Slovakia
With violation of:
Penal Code section 216, first paragraph
For having caused a minor to be illegally abducted or kept from its parents.
Basis: 9300840 a 02
In the period from 10 th March 2006 until today's date she has abducted her children, Timothy Palencic Hoholm, dob 28 th July 2000, and Joachim Palencic Hoholm, dob 6 th February 2002, from association with their Father, Tommy Hoholm. This despite the fact that Tommy Hoholm was awarded daily custody of the children by Hålogaland High Court.
The victim has petitioned for prosecution.
The applicable statutory provisions
Sections 78, 137, 103 and 104 of the 2003 Act, so far as relevant, are as follows:
78 Initial stages of extradition hearing
(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include)—
(a) the documents referred to in section 70(9);
(b) particulars of the person whose extradition is requested;
(c) particulars of the offence specified in the request;
(d) in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory;
(e) …
(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.
(4) If the judge decides that question in the affirmative he must decide whether—
(a) the person appearing or brought before him is the person whose extradition is requested;
(b) the offence specified in the request is an extradition offence;
(c) copies of the documents sent to the judge by the Secretary of State have been served on the person.
(5) …
(6) If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.
(7) If the judge decides those questions in the affirmative he must proceed under section 79.
…
137 Extradition offences: person not sentenced for offence
(1) This section applies in relation to conduct of a person if—
(a) he is accused in a category 2 territory of the commission of an offence constituted by the conduct, …
(2) The conduct constitutes an extradition offence in relation to the category 2 territory if these conditions are satisfied—
(a) the conduct occurs in the category 2 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) the conduct is so punishable under the law of the category 2 territory (however it is described in that law).
(3) …
103 Appeal where case sent to Secretary of State
(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision.
…
104. Court's powers on appeal under section 103
(1) On an appeal under section 103 the High Court may—
(a) allow the appeal;
(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;
(c) 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 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 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.
(6) If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person's discharge.
(7) …
The contentions of the parties
The only substantive issue between the parties was whether the double criminality requirement imposed by section 78(4)(b) and section 137(2) was satisfied in relation to the Appellant. It was common ground that the removal of children from this jurisdiction by a parent in contravention of a court order is a criminal offence. On the other hand, a failure by a parent who has removed children unlawfully to return them to the jurisdiction is not a criminal offence. It was submitted on behalf of the Appellant that her conduct as charged was the latter and not the former: the charge relates to the period from 10 March 2006, when she and the children were already in Slovakia. Moreover, her conduct in failing to return her children to Norway did not occur in Norway, but in Slovakia.
For the Respondent, it was submitted that the offence that was the subject of the...
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