W v A Spanish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Popplewell |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] EWHC 2278 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1739/2019 |
| Date | 21 August 2020 |
[2020] EWHC 2278 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Popplewell
Mr Justice Johnson
Case No: CO/1739/2019
Helen Malcolm QC and Amelia Nice (instructed by McMillan Williams Solicitors) for the Appellant
Nicholas Hearn (instructed by CPS) for the Respondent
Hearing date: 30 July 2020
Approved Judgment
Lord Justice Popplewell giving the judgment of the Court:
Introduction
This is an appeal from an extradition order made on 29 April 2019 by District Judge Blake pursuant to an accusation European Arrest Warrant issued by the Respondent on 19 July 2018 (“the EAW”). The appellant appeals against that order with leave on the grounds that extradition would be unjust or oppressive having regard to her mental and physical condition. She also seeks to renew an application for permission to appeal on the further ground that extradition would be incompatible with rights under Article 8 of the European Convention on Human Rights (“ECHR”). In order to protect the anonymity of the children involved in the case the names of the persons involved have been given letters and the territory of the requesting judicial authority generalised as simply one in Spain.
Narrative
W was born in Russia and has joint Russian and British nationality. She began a relationship with X, who is of Iranian origin with joint British and Iranian nationality, in 2005 or 2006. They have a daughter, Y, who is now aged 6. For much of the period of their relationship, which lasted until the end of 2017, they lived in England. The history of that relationship is described in great detail in two judgments of Mrs Justice Gwynneth Knowles in family proceedings, the first determining an application by X in relation to the abduction by W of Y from Spain; and the second a fact-finding judgment in care proceedings in relation to Y (“the fact-finding judgment”). It is an understatement to say that almost from the outset the relationship between W and X was tempestuous, and the detail of that dysfunctional relationship which is set out in those judgments makes very unhappy reading, especially in relation to the damaging effect the behaviour of both W and X has had on Y, who is deeply traumatised. W's evidence, which was accepted by the District Judge at the extradition hearing, was that she was the victim of serious domestic violence from X over the course of their relationship. In the fact-finding judgment, which post-dated the extradition hearing, Knowles J made a similar finding and found further domestic abuse of W by X in the form of aggressive verbal abuse and controlling behaviour. Knowles J's findings were also, however, highly critical of W, whom she found to have been persistently verbally abusive to X and on occasions physically violent towards him; W used alcohol to excess when Y was in her care (she was convicted in April 2016 of being drunk in charge of a child when Y was two years old) and when stressed or intoxicated she would physically chastise Y; she and X both neglected Y's developmental and other needs, prioritising their own needs over hers and persistently failed to protect Y from the behaviour of the other exposing her to violence, alcohol and drug use. When Y was only 6 months old there was a local authority Child Protection Case Conference recommending that Y be made the subject of a child protection plan. In March 2016 X signed a written agreement with the local authority which recorded concerns about Y being at significant risk of harm whilst W was under the influence of alcohol; and about the father having been staying at the mother's address when, given the history of severe domestic violence, it was not considered safe for the parents to be together. The father agreed to live at his sister's address with Y until assessments had been completed, with the sister supervising Y's day to day care, and agreed not to take Y to W's address. The agreement was quickly broken and in April 2016 the local authority threatened care proceedings. A meeting of both W and X with the local authority led to further agreed arrangements, which were again soon broken. In July 2016 X and W flouted these arrangements by moving to live, with Y, in the territory in Spain where the alleged offence giving rise to the EAW took place some 18 months later. Knowles J found that both W and X failed to engage with the professionals concerned about Y's welfare and X lied repeatedly to the local authority, his dealings with which in 2016 were nothing but a charade to keep the local authority at bay whilst he planned and executed W and Y's move to Spain. She also found that X exerted pressure on W to make the move to Spain.
X has a son, Z, by a former partner. Having previously lived with his mother, in November 2017 Z joined the family in Spain when he was then aged 13.
The offence alleged against W in the EAW is that in the early hours of the morning on 19 December 2017 W went to Z's bedroom where he was asleep and forced him to have sexual intercourse with her despite him telling her to get off. The maximum penalty for this offence under Spanish law is 12 years' imprisonment. W denies the allegation, contending that it has been concocted by X and Z. This was one of the allegations investigated by Knowles J in the fact-finding proceedings, in which she heard evidence from W, Z and a number of other witnesses who gave relevant evidence, including X who was abroad at the time of the alleged offence. Knowles J did not find the allegation proved, but she recorded that she did not have all the evidence from the Spanish investigation file. Her finding is not said to be a bar to extradition: the extraditing court is not concerned to investigate or evaluate the merits of the criminal allegation forming the subject matter of the EAW.
The alleged offence was immediately reported by Z. W was initially detained. She was granted bail by the Spanish Court on 20 December 2017 with a condition that she notify any change of address. On 29 January 2018 she fled to the United Kingdom with Y without notifying the Spanish authorities, in breach of her bail conditions. She did not inform the Spanish authorities because, she says, she was confused and frightened. Upon arrival in the UK she initially stayed with Z's mother but after a few weeks moved out with Y and thereafter stayed in a series of refuges.
The EAW was issued on 19 July 2018 following a request made on behalf of X to the respondent judicial authority. It was promptly certified by the National Crime Agency and W was arrested on 31 August 2018. Y was taken into care by the local authority and placed with foster parents, with whom she currently remains. On 3 September 2018 W was granted conditional bail, and has remained on bail since then.
The Spanish authorities completed their investigation of the allegation, and initiated proceedings, on 21 September 2018. On 8 November 2018 the Court in Spain made a ruling for an indictment against W as the first stage in an oral trial, requiring her to attend before the court for notification. The proceedings are not able to continue in her absence.
At the hearing before District Judge Blake, W resisted extradition on a number of grounds, two of which are relevant to the present appeal:
(1) that, having regard to W's physical and mental condition, it would be unjust or oppressive to extradite her – section 25 Extradition Act 2003 (“ EA 2003”);
(2) that extradition would be a disproportionate interference with W's and Y's article 8 rights to respect for private and family life – section 21A of EA 2003.
The District Judge rejected both grounds and ordered extradition. W was granted permission to appeal on the first ground (section 25). She was refused permission to appeal on the second ground (article 8) and renews the application.
The medical evidence
Although some reliance was placed on physical problems in relation to her back, jaw, stomach and bladder instability, these are not severe. The main thrust of the argument under both heads focused on W's mental health. W relied in particular upon the evidence of Dr Lucja Kolkiewicz, a consultant psychiatrist, contained in four written reports, (two being for the purposes of the family proceedings) and oral evidence she gave at the hearing. Dr Kolkiewicz has since produced two more reports, which we have admitted as fresh evidence upon the appellant's unopposed application.
Dr Kolkiewicz first interviewed W on 13 October 2018 and prepared a report dated 25 October 2018 which was before the Judge in the family proceedings but not the District Judge or us in these extradition proceedings. In a further report for the extradition proceedings dated 2 November 2018, which we were given to understand was largely a reiteration of her 25 October 2018 report, and was referred to in these extradition proceedings as her first report, she expressed an opinion that W's symptoms fulfilled the criteria for the following conditions, based on the interview with W on 13 October 2018 and access to documentation which included her GP notes and documents from the family proceedings amongst others:
(1) Mental and Behavioural Disorder due to the use of Sedatives or Hypnotics – Dependence Syndrome, Currently using Benzodiazepines [active dependence]. The GP notes evidenced that she was paying privately to take a higher dose of the addictive anti-depressants than had been prescribed, and W confessed to being addicted to them.
(2) Post Traumatic Stress Disorder. Dr Kolkiewicz based this in part on W's account of a history of domestic violence and being subjected to humiliating sexual practices by X and in part on her score in answers to the PTSD Checklist test PCL5.
(3) Severe...
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