Prancs v Rezekne Court of Latvia [DC]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,MR JUSTICE BEAN |
| Judgment Date | 03 October 2006 |
| Neutral Citation | [2006] EWHC 2573 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | IN CO/7546/2006 |
| Date | 03 October 2006 |
[2006] EWHC 2573 (Admin)
THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Maurice Kay
Mr Justice Bean
IN CO/7546/2006
MR P CALDWELL (instructed by TNT Solicitors) appeared on behalf of the CLAIMANT
MR R MCCOUBREY (instructed by CPS London) appeared on behalf of the DEFENDANT
This is an appeal under section 26 of the Extradition Act 2003. The decision appealed against is that of District Judge Evans sitting in the City of Westminster Magistrates' Court who on 4th September 2006 ordered the extradition of the appellant, Aleksandrs Prancs, to Latvia. The case proceeds under Part 1 of the 2003 Act, Latvia being a Category 1 territory.
The appellant came before the District Judge pursuant to a European Arrest Warrant. It was dated 12th April 2005. The allegation to which it relates was one of the intentional infliction of bodily injury. The allegation is summarised in the warrant along these lines. On 12th June 1999 in the courtyard of the house belonging to Igors Petrovs, the appellant, whilst under the influence of drink, punched Petrovs causing him to fall and whilst Petrovs was on the ground he, not less than five times, hit Petrovs' face and head with his hands and legs. It is alleged that the injuries endured for a period of longer than 21 days (that apparently being the test in relation to the relevant offence in Latvia) and they included fracture with dislocation of both sides of the mandibula, concussion and skin abrasion. The offence is one for which the maximum sentence in Latvia is 5 years.
The appellant has admitted in his statement in evidence to the District Judge that he did indeed assault Mr Petrovs on the day in question. He says that he left Latvia not because he was by then the subject of a criminal prosecution for the assault on Mr Petrovs, but because he was fleeing mistreatment at the hands of Latvian police officers. That mistreatment did not relate to his arrest and prosecution for the assault on Mr Petrovs. It is said to have arisen out of earlier incidents, the case for the appellant being that he had lent a sum of money to a friend, Mr Morozov, who was a police officer in Latvia. Upon Morozov's failure to repay, the appellant says he reported the matter to the police whereupon Morozov and others abducted him, took him to a police station and to Morozov's home and severely beat him. He managed to escape and to attend hospital and some four months later, following a period in hiding, he left Latvia and came to this country.
In this country he made an asylum application, and in all probability an application that to return him to Latvia would breach his human rights. However, the Secretary of State refused his applications and his appeals within the immigration appellate authority were unsuccessful. We have not seen the record of any adjudication in those proceedings. We do, however, know that there exists a lawful decision to refuse asylum and to return the appellant to Latvia in the immigration context.
The appellant arrived in this country towards the end of 1999 but, as I have recorded, the European Arrest Warrant was not issued until 2005. The reason for that is that the Latvian authorities were unaware until 2005 that the appellant was in this country. Once they discovered that fact, the European Arrest Warrant was issued and certified and it was executed in this country within a relatively short period of time.
At the hearing before the District Judge, the case for the appellant was put in substantially the same way as it has been put before this court today. Mr Caldwell, who also appeared before the District Judge, has essentially put the matter under three headings. He does not seek to attack the validity of the warrant. His first point is based on section 25 of the 2003 Act and is in the form of a submission that it would be unjust or oppressive to expedite the appellant because of his physical or mental condition. There is tied to that a submission that it would be also in breach of Article 3 of the ECHR to return him.
The second submission is that the appellant ought not to be returned by reason of the passage of time, it being provided in section 14 that 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 committed the extradition offence.
The third submission seeks to rely on section 21 and the need to decide whether extradition would be compatible with ECHR rights. I have already referred to the passing reference to Article 3. There is further reliance sought to be placed on Article 6 in relation to any trial that would take place in Latvia.
I now turn to deal with those three submissions in that order. As I have related, section 25 provides that the court must order a person's discharge if it appears to the court that the physical or mental condition of the person in respect of whom the warrant is issued is such that it would be unjust or oppressive to extradite him. In this regard, both counsel have referred to the judgment of Smith LJ in Bhoudiba v Central Examining Court No.5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 Admin, who said at paragraph 65:
" … the court should keep its eye firmly on the statutory question posed by section 25. The question is not whether the appellant is suffering from a psychiatric disorder with or without the added disadvantage of low intelligence; it is whether, by reason of his mental condition it would be unjust or oppressive to extradite him."
The use of the words "unjust or oppressive" is plainly derived from their earlier statutory use, as explained by Lord Diplock in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 779 at page 782 where he said:
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it would be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of a delay due to such causes are of his own choice and making. Save in the most exceptional circumstances, it would neither be unjust or oppressive that he should be required to accept them."
The ground of appeal based on section 25 and the mental condition of the appellant focuses on the word "oppressive" rather than the word "unjust". All that was said in the course of written submissions about return being unjust is that the appellant would have difficulties of recollection and difficulties of giving a proper account of himself in view of his mental condition. As will become apparent, that is an unsustainable submission.
As regards oppressiveness, the evidence before the District Judge, in addition to the evidence of the appellant and his long -term partner, came from a consultant psychiatrist, Dr Ahmed Farah, whose most recent report was dated 27th February 2006. In...
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