Co-Head of Extradition
Article 8 developments
The impact of F-K v Poland
Since the judgment of the Supreme Court in F-K v Poland (heard alongside HH v Italy,) the High Court has mostly applied a straightforward proportionality test to extradition in a way that courts felt restrained and unable to do hitherto. In particular, the unanimous decision of seven Justices to discharge F-K all took into account the delay in prosecuting her case, notwithstanding that she was a classic fugitive from justice.
F-K was a primary carer of five children and the appeal focused on the best interests of her youngest children born in the UK and the impact of their separation from their mother. More recently, in applying F-K, the courts have been willing to consider the impact on a dependent child of separation from fathers, as secondary carers who may also provide for their family and play important roles in their child’s life.
This year the High Court has been reconsidering its approach to Article 8 cases. For example, in Belbin v France the Court gave guidance on Article 8 appeals without any prior indication that it was intending to do so and with no issue having arisen with respect to the correct approach. The judgment in Belbin seeks to limit the scope of the High Court to interfere with Article 8 assessments by district judges absent errors of law or fact. Yet a number of Article 8 appeals have over recent weeks been allowed, notwithstanding careful proportionality assessments by district judges, on the grounds that they had reached the wrong conclusions.
For example, in Toleikis v Lithuania Aikens LJ & Males J. sitting as a Divisional court held that the district judge was clearly wrong to have treated street dealing of cannabis as a serious offence and this was an important error because it led to excessive weight being placed on the public interest in extradition. This error had vitiated the Judge’s overall conclusion on the proportionality assessment in favour of surrender. The dependent child’s best interests lay in maintaining the bond with his hard working father in Bristol. The Court also noted that this offence was capable of justifying discharge pursuant to the new freestanding proportionality bar available in accusation cases.
In Vingras v Lithuania, Silber J. held that the Judge had erred in failing to place sufficient emphasis on the young age of the offender at the time of the burglary offences and in paying insufficient regard to the UN Convention on the Rights of the Child when determining the best interests of Mr Vingras’ new baby. The Appellant’s rehabilitation was an important factor when deciding that the public interest was not best served in returning him to serve 22 months imprisonment after he had breached his suspended sentence by fleeing Lithuania. In Krzeminski v Poland, Mitting J. praised the quality of the Judge’s careful Article 8 judgment but conducted his own proportionality assessment in favour of the Appellant because the family situation had changed – the Appellant was now living with his partner who had refused to attend the extradition hearing. Although he had fled Poland and so was responsible for the delay in his case the Appellant played an important paternal role in both his daughter’s upbringing and by providing for the young family.
These three examples of the court discharging the secondary carer concerned hard working families on low incomes where the removal of the father would have made a material difference to the housing and welfare of the children. They also demonstrate how the approach in Belbin may not be followed or is being generously interpreted in favour of a full reassessment of proportionality.
The courts have also discharged secondary carers where the medical needs of a dependent child resulted the extradition of a father being disproportionate (Prostko v Lithuania,Silber J.). The needs of Prostko’s disabled son to have both his parents care for him outweighed the public interest in extradition to serve 26 months for trafficking amphetamine.
In Jaskula v Poland Cranston J. discharged a woman of Roma ethnicity who had been trafficked by a gang in Poland on the grounds that her soon-to-be-born baby’s Article 8 rights outweighed the public interest in her return to Poland for various offences of theft. This was despite Kenneth Parker J. acceding to Poland’s request for time to obtain a specific assurance concerning adequate child care arrangements in a mother and baby unit within a particular prison.
The inadequacy of care plans for dependent children in the event of the removal of their sole carers has been scrutinized in recent cases such as ZZ v Lithuania, where Collins J. discharged a single mother of three young children. Despite counsel being instructed by Social Services at both first instance and on appeal, the care plans had to be revised on a number of occasions due to material inaccuracies. The plan had wrongly treated police complaints from racially-prejudiced neighbours as credible. In the end when the care plan was finally adequate the Court followed F-K and deemed the very fact of separation of the children from their mother to be disproportionate. A failure to scrutinize the adequacy of a care plan by the High Court has led to post extradition challenges by means of judicial review of the local authority’s failings under the Children Act.
Curfews and proportionality
An important recent feature of Article 8 cases has been the Court’s willingness to take account of the time a requested person has been subject to a curfew in the UK. In Mazurkiewicz v Poland, the High Court accepted the appellant had served the entirety of his Polish sentence while on a qualifying 9-hour curfew in the UK and on that ground alone ordered his discharge pursuant to Article 8. Subsequent decisions have considered time spent on a tagged curfew of less than 9 hours may help tip the proportionality balance in the appellant’s favour (Jaskula v Poland). UK law considers a 9-hour, electronically-monitored curfew to equate to half-a-day in prison: s. 240a CJA 2003. Polish law can permit a sentence to be served on curfew, although this is discretionary. The UK courts are now better equipped to conduct more careful and expansive proportionality exercises that weigh in the balance all features of an Appellant’s case including lengthy restrictions on liberty pursuant to curfews awaiting extradition.
Ben Cooper represented the Appellants referred to in this article.