RT v The Circuit Court in Tarnobrzeg, Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Ouseley |
| Judgment Date | 01 August 2017 |
| Neutral Citation | [2017] EWHC 1978 (Admin) |
| Docket Number | Case No: CO/5391/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 August 2017 |
[2017] EWHC 1978 (Admin)
Lord Justice Burnett
Mr Justice Ouseley
Case No: CO/5391/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Caoilfhionn Gallagher Q.C. and Graeme L Hall (instructed by Sonn Macmillan Walker Solicitors) for the Appellant
John Hardy Q.C. (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 23 May and 21 July 2017
Further evidence and submissions
Lord Justice Burnett and
Introduction
On 18 October 2016 District Judge Goldspring ordered the appellant's extradition to Poland on a conviction European arrest warrant ("EAW") in respect of a sentence of three years' detention imposed for an offence of robbery, which was committed on 19 December 2002. The sole ground on which extradition had been resisted was pursuant to article 8 of the European Convention on Human Rights and section 21 of the Extradition Act 2003 ("the 2003 Act"). In short, the contention before the judge was that the impact of extradition upon the appellant's nine year old son would be so severe as to make extradition disproportionate.
On 23 May 2017 we heard a rolled-up application for permission to appeal. The original grounds contended that the judge erred in his conclusion relating to article 8 on the material before him. That said, the application for permission to appeal is advanced by Ms Gallagher QC relying on new evidence of developments in the appellant's family situation which have unfolded since the hearing in Westminster Magistrates' Court. She submits that permission to appeal should be granted (and indeed the appeal allowed) pursuant to section 27(4) of the 2003 Act:
"27 Court's powers on appeal under section 26
(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) …
(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."
The material facts relate to the circumstances of the boy and difficulties of his mother in caring for him. In those circumstances, we acceded to an application for anonymity, which was not resisted by Mr Hardy QC on behalf of the judicial authority. We directed that the appellant should be anonymised as RT, his ex-partner as XT and his son as YT. We shall refer to YT as the child.
The developments in the family situation have led to the appellant initiating proceedings in the Family Court for a residence order in respect of the child. This appeal thus raises questions about the relationship between extradition proceedings and proceedings in the family court concerning a child of a requested person who would be affected by the surrender. That ground was traversed in PA v Criminal Court Coimbra (Portugal) [2017] EWHC 331 (Admin). One reason for this matter coming before a Divisional Court on a rolled-up hearing was to enable that decision to be reconsidered in the light of experience. Additionally, the appellant suggested that the information available to us at the hearing in May was insufficient to enable this court properly to determine the article 8 issue. That led to two applications. First, that the child should be represented independently in these appeal proceedings by the Official Solicitor. Secondly, that we should consider the application for permission but, if granted, adjourn the hearing of the appeal for further information detailing what would happen to the child if his father were extradited to Poland.
It had been expected that a report from Social Services prepared for the Family Court pursuant to section 7 of Children Act 1989 would be available in advance of the rolled-up hearing. It had been due on 18 May and we were told that it was delayed but would be available within a day or two. As a result, at the conclusion of the hearing we adjourned to enable that report to be provided to us with short supporting submissions from both parties in the extradition proceedings, including whether further information should be gathered to enable this appeal to be determined. To that extent, circumstances dictated that the appeal proceedings could not be completed on the date of the original hearing. The following day we were told that Social Services had applied to the Family Court for an extension to serve their report until 15 June 2017. Counsel drafted questions for Social Services designed to elicit relevant information to assist us in the extradition appeal. We redrafted those questions before the end of May and looked forward to receipt of all the information available by 15 June. The timetable slipped. There is no profit in setting out the detail of what happened. It is sufficient to note that a report directed to our questions was eventually completed on 28 June 2017. It is a comprehensive document and we are grateful to Victoria Bannon, its author, for the evident care she took. Although a section 7 report was prepared at about the same time for the Family Court we have not seen a copy because the necessary consent from XT was not forthcoming. An order from the Family Court or this court could have been sought but that would have caused yet further delay.
The appellant's advisers then sought a further hearing of half a day. A date was identified (21 July) but we considered that an hour was sufficient. We directed that the parties lodge supplementary skeleton arguments limited to six pages dealing with the new material.
We did not explicitly state that those skeletons should otherwise be in the usual format – 12 point font and 1.5 line-space. We might grudgingly admire the ingenuity of the appellant's team in producing six pages of single spaced text in a font size of which the reading may have been aided by a magnifying glass. But we would hope not ever to have to struggle with such a document again. It is common for the length of skeleton arguments to be limited by order, by rules of court or practice direction. The font size and line spacing remains the same.
The issues before us are these:
i) Are the circumstances such that it would be appropriate to ask the Official Solicitor to act for the child in this extradition appeal?
ii) Should permission to appeal be granted?
iii) Should the hearing of the appeal be further adjourned, in particular to follow the conclusion of Family Court proceedings relating to the child?
iv) Should the appeal be allowed on the basis that the appellant's extradition would represent a disproportionate interference with the article 8 rights of the appellant and the child?
Although Mr Hardy urged us to refuse permission to appeal, we have no doubt that permission should be granted in view of the new circumstances which have overtaken the factual position considered by the judge.
The Facts
The appellant was born on 9 December 1984 and so was 18 years old when he committed the robbery for which he was sentenced to three years' custody. His appeal in Poland was dismissed with the domestic proceedings coming to an end in March 2005. He failed to surrender to serve his three year sentence. He had two years and ten months to serve. He fled Poland to avoid serving his sentence. The appellant had grabbed his victim around the neck, kicked him to the face and neck and made threats to kill him before stealing a Walkman and mobile phone. The victim's nose was fractured.
A warrant for his arrest was issued in Poland on 26 September 2005. The precise date of the appellant's arrival in the United Kingdom is uncertain, but he indicates that he left Poland a week before the date on which he was due to surrender to custody. The child was born in August 2007. The EAW was issued on 13 November 2009 and circulated through Interpol a month later. At the time, the relevant authority in the United Kingdom (the predecessor of the National Crime Agency ("NCA") had no information suggesting that the appellant was in England although he had made an application for an Accession State Worker Registration Certificate with the Home Office. On 6 November 2013 intelligence was received by the NCA from Poland that the appellant was working in this country. They identified the county where he did indeed live. The EAW was certified on 14 November 2013 and issued a few days later to the local police force. The appellant was not arrested until 4 May 2016. There is evidence from the appellant and XT that the police had been looking for him two years before and that he had spent nights away from home as a result. Miss Gallagher submits that the timetable suggests no urgency on the part of either the Polish or British authorities to catch up with the appellant.
By 2016 the appellant had been with XT for 14 years. She suffered from depression and was said to be an alcoholic and thus the appellant had real concerns that if he were returned to Poland, XT would struggle to look after their son. Social Services had become involved with the family before the extradition hearing and concluded that they could "not say that [XT] would not be able to care for [the child]." Social Services concluded that were the appellant extradited, a "Child-in-Need Plan" would be put in place to offer support...
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