Penta v District Public Prosecutors Office Zwolle-Lelystad Netherlands

MR JUSTICE COLLINS: This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Evans, at the City of Westminster Magistrates' Court, who, on 3rd February of this year, ordered the appellant's extradition from the Netherlands.

The extradition had been sought based on an European Arrest Warrant of 4th January 2010 which was executed in this country on 6th October. The request related to the requirement for the appellant to serve an outstanding sentence of 292 days in prison which had been imposed as long ago as 24th May 1995 in his absence. I say in his absence, but he had in fact appeared by a lawyer at the court in the Netherlands and that is something which is acceptable in the Dutch system.

In addition, although the sentence was imposed on 24th May, by Dutch law his sentence did not become enforceable for a period of at least 14 days during which the convicted person could appeal against that sentence. In this case, the appellant did not appeal the sentence. There is some confusion, as we shall see, in the evidence before the court as to when precisely the sentence became effective. I say that because the warrant suggests that it was on 7th June 1995, whereas further information obtained from the Dutch authorities suggested it was not until 24th June that the sentence became effective.

While that may not be of any great importance, we shall see that he was deported from the Netherlands on 16th June, so that that deportation might have been, if one follows the warrant, when the sentence of imprisonment had become effective or, if one follows the further information, before it had become effective. So far as the District Judge was concerned, he took the latter date and that formed part of his reasoning in deciding that the extradition should take place.

However, to go back to the circumstances, the offence in question was the possession of some 35.8 grams of heroin, the offence having been committed on 1st May 1995. It was not suggested, so far as can be seen, that this was other than simple possession: certainly the charge did not relate to any suggestion of involvement in the trafficking of heroin.

The appeal is based purely on the question whether due to lapse of time the extradition should not be permitted. There is also a possible issue arising under section 14 of the Act, namely whether the appellant had deliberately removed himself from the jurisdiction to avoid the possibility of being dealt with there.

The timings are, as I have already indicated, of some possible importance. He was, as I have already stated, originally arrested on 1st May 1995, having been found in possession of the heroin. He was produced at court the following day and was ordered to be detained pre-trial. A week later, on 9th May, he was granted bail, apparently because of the problem the Dutch have (it sounds rather similar to our problem) of lack of space in prisons, and the decision to release certain categories of prisoner. Anyway, he was, on the evidence, served with a summons to attend trial on 24th May. He did not attend in person but by a lawyer. He clearly, on the face of it, had no defence and so was convicted and sentenced to the period of imprisonment. On 12th June, he was arrested and held in custody with a view to being deported and on 16th June he was deported to Italy, that being the country of his nationality.

He heard nothing more from the Dutch authorities in relation to this offence until the service on him of the EAW in October of last year and the delay since then is to a large extent explained by the fact that he was in trouble in this country. He had a considerable number of convictions stemming from his continued addiction to heroin. The offences involving what perhaps are all too usual in these cases, drug offences together with dishonesty offences committed in order to feed his drug habit. He was on bail to the Crown Court at Luton in October and so the extradition proceedings had to be adjourned to await the conclusion of the domestic proceedings and in due course he was sentenced at Luton to a suspended sentence of four months' imprisonment. The extradition hearing could then take place. It did so and resulted in the order of the District Judge on 3rd February.

There are two issues. First, the respondent has contended that he was deliberately absent from the jurisdiction, when one looks at the full circumstances.

The test enunciated by Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779 has been regarded as the approach that should be applied. What Lord Diplock said in that case was as follows (page 783). I need only read one sentence in this context:

Now clearly the circumstances of this case, and Mr Grandison does not seek to argue the contrary, do not fall directly within those three possibilities. But, submits Mr Grandison, the matter can be looked at to a degree beyond that and he relies upon observations of Elias LJ in Dare v Principal Court of Santa Cruz De Tenerife [2010] EWHC 366 (Admin). What Elias LJ said in that case, so far as material, was as follows at paragraph 16 of the judgment:

Clearly it may be, and it appears that in that case it was, a condition of bail that he was permitted to come to this country for a particular purpose. He was, when he came to this country, arrested here and dealt with for an offence committed here and sent to prison and he knew perfectly well that he had an obligation to return to Spain. The only reason that he could not return to Spain temporarily was because he was serving a sentence of imprisonment here. When, having completed that sentence, he failed to return to Spain, one can see that it was open to the court to take the view that he was from that moment deliberately failing to return to Spain. Importantly, he knew that he should. He had no reason to believe that there was anything that had changed in that regard and he failed to do what he should to comply with the conditions upon which he had been permitted to come to this country.

The situation in the instant case is in my view very different. The appellant has said that he was told by those who were deporting him that he should leave and should not come back. The District Judge did not specifically deal with that evidence and say whether he accepted it or not. What he did say was that he could not believe the appellant when he, the appellant, said that he was unaware of the fact of his conviction or sentence. As the District Judge said, and I entirely agree with this, it beggars belief that he would not have been told by his lawyer what the outcome of the hearing had been and further that he was subject to a sentence of imprisonment, whether or not it had been put into effect, because he would have been aware that he had not appealed against that sentence.

But he was told, and in my view there is no reason to disbelieve this part of his evidence, that he should not return. As it happens, he had been deported earlier in the year, 1995, but had returned to Holland and virtually on his return, or maybe shortly after, he committed the offence in question, so he was only back in Holland for a short time, and may be, perhaps it is not too much of a speculation, because he found drugs easier to obtain in Holland.

Be that as it may, he was in my view entitled to believe, since he was being deported by, or by those representing, the Government of the Netherlands, that they were aware of the situation in connection with the criminal proceedings against him and since he was being told to leave the country and not come back, whatever may have been done in the criminal proceedings, they were no longer, so far as he was concerned, material. He believed, and in my view, if he did so, reasonably believed, that the deportation took the place of any further penalty in relation to the offence. Albeit Mr Leake referred to the offence as trivial, I certainly would not accept that, but it clearly was not the most serious of offending, being simple possession and no question of supply.

In those circumstances, it seems to me that it is quite impossible to establish, as the respondent accepts they have to establish, that he was deliberately absenting himself from the jurisdiction in order to avoid the serving of the sentence of imprisonment that he would otherwise have to serve. Accordingly, this is not a case that falls within that approach and thus I have now to consider oppression on the basis that he was not at fault in failing to return to the jurisdiction of the Netherlands.

So far as oppression is concerned, again, one goes back to Kakis and the definition given by Lord Diplock in connection with delay and what he said was this at page 783C:

Culpability can be material in deciding whether in an individual case the return would be oppressive but the important thing is the effect upon the individual of the delay and of course change of circumstances, change of lifestyle, can be of very great importance.

Perhaps the most useful authority in that connection is Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin), a decision of December 2009. In that case, the appellant had been convicted of a very serious offence in March 1989, having been involved in smuggling into France 585 grams of cocaine. He was in due course sentenced in his absence for that offence to five years' imprisonment. I need not go into the circumstances of the delay, which was obviously substantial, running between 1992 and 2009. Suffice it to say that his absence from France was not deliberate and so this was simply a question of whether the delay was oppressive. What persuaded the Divisional Court in that case, the judgment being given by Lloyd Jones J, was set out in paragraph 23 of the judgment and it is perhaps quite helpful to cite that because it indicates the sort of matters that are material in deciding on oppression. It said this:

So what one gets from that, if I may generalise, are that relevant considerations in favour of non-return, which could point to oppression, are first of all the conduct of the authorities which led to the leaving of the jurisdiction by the individual and the failure to take any steps over a period of time to inform him that he was required to return, which clearly led in that case to a sense of security. That expression is not precisely used but in other cases there is reference to a false sense of security being created and that is a factor which can be taken into account in favour of an individual whose extradition is requested.

Secondly, lapse of time is a factor which can be important, depending on its length, and depending too on the seriousness of the offence for which extradition is sought. In Wenting's case, the offence was far more serious than in the instant case. The period of delay was a little greater, but not substantially so, so far as the delay between the leaving of the jurisdiction and the issue of the EAW was concerned: that is a factor. Then lifestyle since: in Wenting's case, the appellant had not only led a law abiding and useful life but had taken positive steps to do good in the community.

The same cannot, of course, be said for this appellant, who has been in and out of trouble with the law in this country for offences since he came here in 2002. Nevertheless, it is said on his behalf, and this is a matter that was raised before the District Judge, that he had, as it was put, recently begun to establish roots and settled down. He now says he has a partner, a recovering heroin addict too, and both of them, it is said, have taken steps to wean themselves off heroin because they now have a little daughter who has been taken into care. They want to be reunited with her and they are seeking to demonstrate that they have changed their lives and can be trusted to care for their daughter and so there is, it is said, a real incentive now for the appellant, together with his partner, to put the life of crime behind him. Further, it will have a serious effect upon his attempts to establish the necessary contact with his daughter by creating a stable home environment if he is removed for the next eight months or so to serve the sentence of imprisonment in the Netherlands.

The District Judge said in paragraph 14:

So, albeit there has been no change of lifestyle such as appealed in the court in the Wenting case, nonetheless the lapse of time and the present situation of the appellant, 16 years on, is something which has to be taken into account when one looks to see whether there are indications of a possible change and the effect that the return to serve the sentence in Holland may have upon that and indeed upon his partner and his daughter and the possibility of them establishing the necessary home life to enable the daughter to be returned.

The absence of positive change of lifestyle, and even the existence of continuing bad lifestyle, is not something which will act to the detriment of the individual in question. All that it will do is not act to his benefit. It is not something that can be prayed-in-aid in his favour as something which goes against the possibility of removal. So what we have here is very substantial delay and in my view a reasonable belief on the appellant's behalf that he need no longer concern himself with the sentence imposed in the Netherlands because of what he was told on being deported.

The point is made by Mr Grandison, and it is a point properly made, that it must not be assumed that there is a culpability in the state, or rather the part of the state concerned with the criminal process, in the fact of deportation. It is apparent that the immigration authorities in the Netherlands were not aware of the criminal proceedings. It seems to me apparent that, if they had been, the appellant would not have been deported and that would apply whether or not the sentence had become effective. Clearly if it had become effective, it was obvious that he should not have been removed. But, if it had not become effective, first the period of appeal would still be running, the sentence was there and might well become effective, the appellant should have been given the opportunity of being able to attend if he had wanted to in connection with his appeal and it is difficult to see that in those circumstances, had it been known, the deportation would have taken place.

I appreciate that the District Judge in his judgment said this in that connection, and I refer to paragraph 7 of his judgment:

Those then essentially are the circumstances. I recognise that lapse of time by itself will not usually mean that it is oppressive to return. So far as culpability of the state is concerned, I do not think it is possible to say that it has been established that the delay was culpable. There is an explanation given for it. One may suggest that the reasons are not necessarily on the face of them particularly good, but what is said effectively is this:

This, I am bound to say, I regard as something of a borderline case. Having regard to the explanation given for the delay, I am not prepared to find as a fact that the delay was culpable. There may have been very good reasons for the failures to set up the necessary arrangements before they were set up: finance, political problems, one knows not. So far as the deportation is concerned, there was, as it seems to me, clearly a degree of confusion and a failure in one body of state to liaise properly with another. Again, what was the reason for that I know not and it may be that that is not something that one can regard as truly culpable in the sense that one has to use that word. One knows only too well from one's experience in this country that, even within one department of state there can be a failure of one group or one department in that body to appreciate always what is happening in another and it would be harsh indeed and not in accordance with the authorities to regard the state as one indivisible in this sort of situation. But, having said that, it is the effect again on the individual and it lulled him in this case into a sense of false security. He got on with his life on the assumption that, provided he did not return to the Netherlands, he was not likely to be in any trouble. He knew that he was forbidden to return and, if he did, he might be in trouble but not in connection with this matter.

True, he did not get on with his life in a particularly beneficial fashion, if I may put it that way. Nonetheless, he has reached the stage 15/16 years on where he says that he is at last found a good reason, with a partner and a child, to change his lifestyle. That is, again, a factor which I am entitled to take into account. Coupled with that there is the very substantial delay here following an offence which cannot be said to be as serious as many which result in EAWs. He has, as it happens, been in custody in this country since 3rd February and that period will count towards any sentence that he would have to serve were he to be returned.

I recognise that the burden is upon him to establish oppression on the balance of probabilities. Like all cases of oppression, this case depends entirely upon its own facts and cannot be taken as any indication or authority for what could happen in other cases. Indeed, I am not making any new law in this case. I am applying principles to which I have been referred which have been set out in previous authorities. But in the end I am persuaded that it would be oppressive to return him now to serve that sentence.

Accordingly, I propose to allow this appeal.

MR LEAKE: My Lord, in those circumstances, may I invite you please formally to quash the order for extradition?

MR JUSTICE COLLINS: Yes.

MR LEAKE: And he is legal aided. May I ask for a detailed assessment of my costs?

MR JUSTICE COLLINS: Certainly.

MR LEAKE: I am grateful.

MR GRANDISON: I am grateful my Lord. Yes, nothing I need to say on the matter. I am grateful.

MR JUSTICE COLLINS: This is not a case to certify.

MR GRANDISON: Most certainly not.

MR JUSTICE COLLINS: No, I am bound to say, I found it, as you gather, very much a borderline.

MR GRANDISON: I am grateful, my Lord.

MR JUSTICE COLLINS: Thank you both for your assistance.

MR GRANDISON: I am grateful.