Nanarova v District Court in Usti Nad Labem Czech Republic
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON,LORD JUSTICE SCOTT BAKER |
| Judgment Date | 06 October 2009 |
| Neutral Citation | [2009] EWHC 2710 (Admin) |
| Date | 06 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4154/2009 |
[2009] EWHC 2710 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Scott Baker
Mr Justice Cranston
CO/4154/2009
MR M HYDE appeared on behalf of the Appellant
MR A WATKINS appeared on behalf of the Crown Prosecution Service
on behalf of the Czech Judicial Authority
Introduction
Valentina Nanarova, the appellant, appeals an extradition order of 24 April 2009 made by Deputy Senior District Judge Wickham at the City of Westminster Magistrates' Court. A European Arrest Warrant for her has been issued by a district court in the Czech Republic for the offence of endangering the morale of juveniles. She was convicted and sentenced to 18 months' imprisonment on 11 December 2007.
She opposes her extradition on the grounds that she has not been convicted of an offence amounting to an extradition offence under section 65 of the Extradition Act 2003 (“the Act”) and that the extradition would not be compatible with her right to respect for private and family life under Article 8 of the European Convention on Human Rights.
Background
The appellant was convicted in late 2007. That was by a judgment of the District Court in Usti Nad Labem in the Czech Republic. The Czech Republic is designated as a category 1 territory under section 1 of the 2003 Act. Thus, part one of the Act, as amended, applies in this case.
The offence of which the appellant was convicted is contained in section 217 of the Czech Criminal Code and reads as follows:
“Endangering the morale of juveniles-
1) Whoever, even through negligence, exposes a person under 18 years of age to the danger of depravity by a) luring such person into leaving an idle or immoral life; or b) enabling such person to lead an idle life or immoral life; or c) significantly violates his/her duty to take care of a person under the age of 18, shall be punished by imprisonment of up to 2 years”.
Immediately after her conviction in the Czech Republic, the appellant came to this country. On her account she had been here on several occasions previously. She is a widow, a Czech national and, according to her evidence, of Romani descent. Her husband, who was deaf and dumb, died in January 2007. She has six children, the youngest child being Radek, to whom I return. The eldest child, Veronica, aged 23 years, has herself five children aged between 3 years and 10 years. She is married and lives in the United Kingdom, in Stockton. She has lived here since 2007; her home is about five minutes away from the appellant's flat. The second child of the appellant is Julie, aged 24 years. She has a young baby. The third child, Maria, aged 19, is married and has a child as well; the fourth child, Jan, is 18 years old; and the fifth, Lukas, is 16 and undertaking a part time apprenticeship as a mechanic and part time English course. Radek, the youngest, is 10 years old.
All the children, apart from Veronica who was already in this country, accompanied the appellant to the United Kingdom in December 2007. This morning we were told by Mr Hyde that Maria, Julie and Jan have now returned to the Czech Republic. Mr Hyde also informed us that a sister of the appellant, who lived in Leeds, has returned there as well.
Radek has a serious hearing problem; he is now attending a special school in Stockton. The appellant communicates with him by use of sign language, which is Czech based. No other member of the family apparently has this skill. Radek's disability makes him moody, difficult and withdrawn. There is evidence as to his hearing loss from Mr Ganesh, a staff grade surgeon, in the Department of Ear, Nose and Throat at the James Cook University Hospital at Middlesbrough. His evidence is that Radek has a bilateral 50 to 70 decibel sensorineural hearing loss in both ears which is permanent and unlikely to improve. Mr Ganesh opines that he should be able to communicate as a result of hearing aids, but he might need to use sign language as well.
On 18 September 2008 a European Arrest Warrant was issued. It was certified on 18 November of that year. The description of the circumstances of the offence, as set out in the warrant, are as follows:
“In Usti Nad Labem the defendant as mother of minor children did not take care of proper upbringing and school attendance of her children, ie their attendance to the Special Basic School and the Practical School in Trmice, Fugnerova 22; and did not take care of her children for a long period of time and intentionally. Thus it means that in the period from 25 January 2006 until the end of June 2006 the minor Maria Nanarova, born on 27 February 1990, missed a total of 307 school hours, which were not excused; the minor Jan Nanar, born on 30 September 1991, missed a total number of 111 hours, which were not excused; the minor son Lukas Nanar, born on 5 November 1993, missed a total number of 82 hours and the minor son Radek Nanar, born on 8 April 1999, missed a total number of 132 hours. In the period from 4 September until 18 September 2006 the minor son Jan Nanar missed 48 hours, the minor son Lukas Nanar 52 hours and the minor Radek 42 hours.”
The European Arrest Warrant was received in England and Wales by the Serious Organised Crime Agency, which is a designated authority for the purposes of part one of the Act. The appellant was arrested in Middlesbrough in mid December last year. An extradition hearing was opened on 30 December 2008 but was adjourned. It was resumed in late March. Deputy Senior District Judge Wickham held that the double criminality as required by the Act was established by reference to section 444 of the Education Act 1996. She also rejected an argument that the appellant should not be extradited because of Article 8 of the European Convention on Human Rights.
After reviewing the appellant's family situation, in particular the availability of family support to assist in the care of Radek should the appellant be returned to the Czech Republic under the warrant, and Radek's hearing problems, the learned judge made a number of findings of fact. These included that Radek needed the Czech language as a means of communication, whether spoken or by signing; that the appellant had been slow to improve his communication problems by the use of hearing aids; that Radek could have good quality hearing and could be helped to communicate with hearing aids; that on this basis he could have stability in his present home and be cared for by his older brothers and sister; and that there was a substantial extended family whom Radek knows and who can, in the short term, assist. At this point I note in passing that at least one aspect of the learned District Judge's findings in relation to the care of Radek are affected by the return of his siblings to the Czech Republic.
The law
The decision in this case turns, in large part, on the correct construction of section 65(3) of the 2003 Act. It contains the dual criminality test. It provides that conduct constitutes an extradition offence in relation to a category one territory if the following conditions are satisfied:
“(a) the conduct occurs in the category 1 territory;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed…”
Section 65 is one of the interpretation provisions for the purposes of part one of the 2003 Act. The respondent contends that the dual criminality aspect of section 65(3)(b) is satisfied by section 444 of the Education Act 1996. That contains two offences; first, if a child of compulsory school age who is a registered pupil at a school fails to attend regularly; and secondly, if in those circumstances the parent knows that his child is failing to attend regularly at the school and fails to cause him to do so: section 144(1),(1A). The penalties set out in subsections (8) and (8A) of section 444 are, first of all, a fine in relation to the first offence, and a fine and a possible term of imprisonment not exceeding 3 months in relation to the second.
Under section 2 of the 2003 Act the European Arrest Warrant must satisfy certain requirements. Under section 2(4)(C) the warrant must contain particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence; the time and place at which he is alleged to have committed the offence; and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence. The judge must then decide at the extradition hearing whether the offence specified in the European Arrest Warrant is an extradition offence: section 10(2). If the judge decides that question in the affirmative it is then necessary to consider whether the person's extradition is barred by reason of any of the matters such as delay set out in section 11. If not, the judge must decide whether the person's extradition would be compatible with the European Convention on Human Rights. If the judge decides that question in the affirmative, extradition must be ordered: section 21.
The conduct which, in section 65, must constitute an offence in a part of the United Kingdom is the conduct complained of or relied upon in the warrant. As Lord Bingham of Cornhill explained in Office of the King's Prosecutor,...
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