Igbinovia v President of the Criminal Division (Seccion Segunda De La Audencia Provincial De Santa Cruz De Tenerife)

This is an appeal from the decision of District Judge Snow ordering the appellant's extradition to Spain to serve the balance of a sentence of imprisonment for the importation of cocaine.

The facts, as found by the District Judge in [24] of his Ruling are that the appellant (now aged 45) was born in Nigeria and is a Nigerian citizen. He travelled to Italy in 2005 and, in 2006, he moved to Spain, where he met a woman whom he married. During the evening of 8^th December 2006 he (accompanied by two other men) travelled to Santa Cruz in Tenerife on a boat from Gran Canaria. On arrival they were questioned by the police and were unable to give a convincing explanation for their visit. They were examined and, in the course of the examination, each of them expelled plastic capsules which had been swallowed. The appellant expelled 64 capsules, containing 951.68 grams of cocaine of 49.4% purity, with a value of 63,679 euros.

He was charged with drug importation, pleaded guilty to the offence and was sentenced on 20^th September 2007 to a term of six years' imprisonment and a fine. He served much of this sentence in closed conditions, but was let out on temporary release which expired on 29^th September 2011. He failed to return to prison to serve the remaining days of his sentence.

The District Judge found that the appellant's knowing and deliberate failure to return to prison made him a fugitive from justice. Having left Spain he travelled across Europe and was eventually smuggled into the United Kingdom.

He met his partner J in 2012. She has dual Nigerian and Italian citizenship. She has a son aged 16 (C) and a daughter (G) aged 7. She and the appellant also have a son (P) who is now aged 21 months. The appellant shares the care of this child and his partner's two other children, all of whom he treats as his own.

The European Arrest Warrant was issued on 17^th October 2011 (within a month of his absconding), and was certified on 13^th January 2013.

On 5^th July 2014 the appellant applied to the Home Office for a residency permit.

On 25^th July he was arrested on the European Arrest Warrant.

On 26^th August he made a request for a referral to the National Referral Mechanism ("NRM") through the Salvation Army. It will be necessary to say something further about the NRM, but at this stage it is only necessary to say that it is the domestic authority within the Home Office which has been established under Article 10 of the Council of Europe Convention on Action against Trafficking of Human Beings (the "CAT").

Although this was not in evidence before the District Judge, it appears that the referral to the NRM was supported by an undated letter from a Trafficking Outreach Support Worker on behalf of Ashiana Sheffield Limited, which works in partnership with the Salvation Army. The letter advanced the appellant's case that he was a victim of trafficking on the basis of the account that he gave which was substantially the same as his witness statement before the District Judge.

On 15^th September the NRM made a decision that there were "reasonable grounds" to believe that he had been trafficked. It is unclear on what material the decision was based and whether the decision-maker was aware of the extradition request.

The decision by the NRM was a threshold decision. The letter explained:

"Your case was referred to a Competent Authority to consider whether there are reasonable grounds to believe you are a victim of human trafficking. The Competent Authority has carefully considered the circumstances of your case and concluded that there were reasonable grounds to believe that you have been trafficked.

If you are subject to immigration control, and you do not have leave to enter or remain in the UK, you will be granted a period of 45 days' temporary admission from the date of this letter. This is to help you recover from your trafficking experience and to allow you time to consider what to do next."

Before the District Judge the appellant gave evidence of the circumstances in which he came to commit the offence (see paragraph 13 of the Ruling). He was living in Madrid at the time and found himself in financial difficulties. He met a man in the street who said he could help him make some euros. He met that man and two others on 7^th December 2006, and they told him that they wanted him to transport drugs for them. He refused. However, they produced a gun and compelled him to swallow the drugs. He was told he would be paid 900 euros on delivery. They remained with him until the morning of the next day when they took him to the airport, bought his tickets and gave him a phone with which to make contact when he arrived at Tenerife. He flew to Gran Canaria, where he took the ferry to Santa Cruz. He was not in the company of two other men. At the court hearings he was represented by a lawyer and had the assistance of an interpreter. He pleaded guilty and was sentenced. The lawyer said he would appeal (presumably against the sentence). He learnt later that the appeal had been dismissed.

The appellant complained of racism and victimisation within the Spanish prison system. Although at the time he absconded he was in an open prison in Vigo, he said that the reason he absconded was that he had heard he was to be transferred to closed conditions at a prison in Coruna, which (he had been told) had a reputation for violence.

The District Judge was unimpressed by the appellant's evidence. Paragraph 18 of his Ruling reads as follows:

"The RP [Requested Person's] evidence was unimpressive during cross-examination. He found it difficult to answer the questions. He agreed that he knew what the EAW was about. He confirmed his arrest, that he was prosecuted, that he was present at his trial when he was convicted. He was represented by three different lawyers. His lawyers saw him in prison on one or two occasions. He told his Spanish lawyers that he had been trafficked. In re-examination he initially stated that he had told the Spanish Court that he had been forced to swallow and transport the drugs. He said that his lawyer had tried his best to put the arguments before the court. He said that his 'lawyer tried to make the court understand that I had been forced to commit the crime of smuggling cocaine'. He then changed his evidence, stating that the lawyer had spoken in Spanish and he did not understand Spanish, which I am satisfied was a clear attempt to distance himself from his evidence that his case of duress had been put before the court. He went on to state that he was not able to communicate with his lawyer in a language that he could understand and that he was not advised about the possibility of defending himself on the basis of duress or that he had been trafficked. However in his proof he [said he] had spoken to his female lawyer through an interpreter. He told me [he] had an interpreter at court, albeit that her English was 'not too fluent'. I found his evidence of the court process to be evasive and lack[ing] credibility."

There are two stated grounds of appeal: first, that the District Judge had erred in effectively denying the appellant an opportunity to present evidence in support of his submissions; and second, that the District Judge erred in finding that the United Kingdom and/or Spanish authorities' actions in effecting extradition were not capable of amounting to an abuse of process.

In the course of her submissions, Miss Westcott (who did not represent the claimant before the District Judge, and took on the appeal at very short notice) made further submissions based on the provisions of Articles 4 and 8 of the European Convention on Human Rights.

So far as the first ground is concerned, following the appellant's arrest there was an initial hearing at the Westminster Magistrates' Court. No preliminary issues were identified. The issues said to be relevant were issues arising under Articles 3 and 8 of the ECHR.

On 31^st July, bail was granted.

On 11^th August, human trafficking was raised as a potential issue.

On 4^th September, an application for an adjournment of the extradition hearing was made and refused.

On 6^th October, there was a case management hearing and a certificate for counsel was granted. A further application for an adjournment was refused.

On 13^th October, a further application to adjourn was made and refused. The hearing took place before District Judge Snow, following which he reserved judgment.

On 17^th October, the District Judge ordered extradition under section 21(3) of the Extradition Act 2003, with a direction that the order should not take place for ten days after the conclusive decision was taken by the NRM.

The application to adjourn on 13^th October had been made on the basis that further time was needed to assemble the appellant's case. In essence, those advising the appellant wished to rely on opinion evidence on trafficking, the effect of his extradition on members of his family, and from a Spanish lawyer.

The appellant's Notice of Appeal to the High Court was issued on 22^nd October and a representation order was applied for. On the same day the parties were notified that the present hearing would take place on 5^th December.

In a letter dated 3^rd November the appellant received notification from the NRM that he did not meet the definition of trafficking for the purposes of the CAT. The letter stated that the writer had considered "all the information provided" to him, and that the case had been reviewed separately by another official. It also said:

"Although initially it appeared that there were reasonable grounds to believe that you may have been trafficked, subsequent evidence has been produced to confirm that you were not trafficked. I have therefore decided that, based on the information available to me, on the balance of probabilities you do not meet the definition of a victim of trafficking for the purpose of [the CAT]."

Miss Westcott says that the District Judge indicated that he would send his Ruling to the NRM. She submits that its decision is likely to have been affected (if not guided by it). She submitted that this should not have happened.

The basis on which the NRM made its conclusive decision remains unclear. However, the original NRM ruling was plainly not determinative of the extradition decision, and I do not accept Miss Westcott's submission that there was something wrong in the NRM taking into account a ruling based on the forensic testing of an applicant's account of being trafficked. It would have been odd if it had not.

On 6^th November the representation order which had been made in the Magistrates' Court was extended to this appeal by the Administrative Court.

On 24^th November an application was made to extend the representation order to cover the obtaining of expert evidence for the purpose of the appeal. The application enclosed counsel's Advice in support of the application (dated 20^th November).

An application for an adjournment on the basis of the need for expert evidence was subsequently made and refused on paper.

The application was renewed by Miss Westcott on the morning of the hearing.

Paragraph 20 of the Grounds of Appeal identifies the need for expertise in four areas:

(1)

A trafficking expert "who would provide independent evidence concerning the legitimacy of the appellant's status as a trafficked person and whether the Requesting State was likely to comply with its obligations under the relevant Treaty".

The named expert is a psychotherapist and "independent trafficking consultant". It is now said that this report could be available by the end of January 2015.

I am not persuaded that opinion evidence of "the legitimacy of the Appellant's status as a trafficked person" is either relevant or admissible. It would be largely (if not wholly) dependent on the Requested Person’s account which would be assumed by the expert to be true.

Miss Westcott submitted that there was an expertise in determining whether a person was trafficked, and referred to material which indicated the particular difficulties faced by those who had been trafficked.

While I fully accept that courts need to be aware of the particular difficulties faced by those who have been trafficked, I am not persuaded that in the present case at least the insights of people who work in this field would have thrown significant light on the issues which had to be determined, or would do so now.

However, since no evidence is before the court it is not necessary to say anything more.

So far as the compliance by Spain with its Treaty and Directive obligations are concerned, again there is no case presently advanced that it would not. The CAT and the European Directive (to which I will come shortly) are binding on all members of the EU; and, in general, the courts of this country proceed on the basis that member states will comply with their obligations unless a clear case is made out that they do not (and in such a case the court would expect to hear from the State concerned).

No such case is made here. It is pure speculation and it is speculation which would tend to increase costs and cause unnecessary delay.

(2)

The second area of expertise is Spanish law. It is said that it is necessary to have a Spanish lawyer to provide information about "material aspects of the Spanish criminal justice system and assist in obtaining papers and other records of the criminal proceedings against the appellant in Spain". There is no named expert.

Again, it seems to me that this evidence is wholly speculative. It might be thought that a more relevant enquiry would be to the lawyer (or lawyers) who represented the appellant in the Spanish Court at the time he was sentenced. At the moment all that seems to have been done is a written request on 20^th November to the Spanish Court for the original case papers, which were sent by return on 21^st November. They have not been translated from Spanish by the appellant's solicitor due to lack of funding.

(3)

The third area of expertise is a child psychologist who could give evidence concerning the impact on the appellant's family of his extradition. A clinical psychologist is named. It is estimated that the report could be obtained at the beginning of January. This evidence would be deployed to show the impact on the children if the appellant were removed.

I will consider later in this judgment the issues that arise under Article 8, but I do not accept that in the generality of cases the court will be assisted by opinion evidence of this type.

Miss Westcott drew attention to a passage in the speech of Lady Hale in H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC at [82], where she addressed the procedural steps which may be necessary to ensure that the interests of dependent children are properly taken into account by an extradition court. It is clear that the court will need to have information about children, and there may need to be further investigation of those needs where the extradition of both parents or of the sole or primary carer is sought.

I will return to the evidence about the appellant's provision of care for the children later, but I do not read this passage or other passages in the judgment of Lord Wilson as requiring the calling of expert evidence on the impact of extradition on children in the generality of cases; rather the contrary.

(4)

The fourth area of expertise is a social worker. It is said that the evidence of an independent social worker would deal with the circumstances as a whole, and in particular with the ability of the appellant's partner to cope with his absence. An expert is named.

Again, I do not consider that this separate area of opinion evidence is likely to be helpful. If there is an issue upon which a social worker's evidence will be relevant, it is likely that a social worker will already be in a position to assist the court. The evidence will be readily available and will not require expense or delay in obtaining it. No such evidence is presently deployed.

I have set these matters out at some length because it is Miss Westcott's submission that, by refusing the application, the District Judge effectively prevented the Requested Person from advancing the arguments he wished to; and that, by deciding the issues on abuse of process and section 21 of the Extradition Act on the basis of the absence of evidence, he unlawfully relied on a situation he had created by refusing the adjournment.

She submitted that the admission of expert evidence satisfied the test set out in the case of Szombathely City Court and Others v Fenyvesi [2009] EWHC 231 (Admin) at [32-33]: whether the evidence could have been available with the exercise of due diligence before the District Judge, and, if not, whether its admission on the appeal would have a different result leading to the requested person's discharge: see section 29(4). She submitted that the new evidence had the potential to lead to a different result.

I am not persuaded by this argument, which is itself circular. The proposed expert evidence is either irrelevant to the issues or its content remains unknown. There is little more than a hope that, after a significant period of delay, something will turn up. If adjournments are to be granted on this basis, the whole extradition process in the Magistrates' Courts is likely to grind to a succession of juddering halts; whereas the intention of the European Framework Decision is that the requests will be dealt with promptly and summarily.

In my judgment the District Judge was fully entitled to refuse an adjournment and I reject the argument that the appellant was effectively denied an opportunity to present evidence in support of his submissions. In the light of these conclusions I need not say anything about Judicial Review being the proper means of challenging a refusal to adjourn rather than a statutory appeal.

For these reasons, I refuse the application for an adjournment of the present appeal.

I turn then to the second ground: that the District Judge erred in finding that the actions of the United Kingdom and/or Spanish authorities were not capable of amounting to an abuse of process.

There are a number of cases on how a court should approach allegations of abuse of process: see, for example, R(Bermingham) v Director of the Serious Fraud Office (DC) [2007] QB 727 [97]; R(Government of the USA) v Tollman (DC) [2007] 1 WLR 1157 [84]; and Symeou v Public Prosecutor's Office at the Court of Appeals, Patras, Greece (DC) [2009] 1 WLR 2384 [4-8] and [34].

The following principles relevant to this appeal emerge from these cases:

(1)

Judges should be alert to the possibility that allegations of abuse of process are being made as a means of delaying the extradition process.

(2)

Where an allegation of abuse is made, it must be stated with particularity. The abuse identified must relate to the Prosecuting Authority in seeking extradition.

(3)

The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process.

(4)

If it is, he must consider whether there are reasonable grounds for believing that such conduct may have occurred.

(5)

If there are, the judge should not order extradition unless he is satisfied that such abuse of process has not occurred.

The District Judge's conclusions on abuse were set out in paragraphs 29 and 30 of his Ruling. He rejected the suggestion that conduct of the UK authorities or the Spanish police investigation could amount to an abuse. So far as the respondent's conduct was concerned, there were no reasonable grounds for finding that abuse may have occurred. There was no evidence that his complaint that he had been trafficked had not been investigated at trial, and that they would not be, if made on return. He noted the provisional decision of the NRM but observed that there was no indication of how they came to the view they did.

Miss Westcott submits that the District Judge should have found that the actions of the police and/or the Crown Prosecution Service and/or the Magistrates' Court itself in effecting extradition were capable of amounting to an abuse of process. In particular, it is said that the District Judge failed to apply the correct definition of "collateral purpose" and/or failed to apply the definition of "collateral purpose" in a manner compatible with either Article 26 of the CAT or Article 4 of the ECHR (the prohibition against slavery or forced labour), or the Trafficking Directive.

Article 26 of the CAT provides:

"Each party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they are compelled to do so."

Article 26 of the CAT is echoed (to adopt the word used in R v L(C) and Others [2013] 2 Cr App R 247 at [8]), in Article 8 of the EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims (OJ 15.4.11: L101/1), which I have referred to as the Directive, and which deals with decisions not to prosecute those who have been compelled to commit offences as a direct consequence of being subject to trafficking.

At this stage of the argument it is convenient to return to the findings of the District Judge. He found that the appellant had not been trafficked; that his account of travelling alone was inconsistent with the warrant, but, if true, would have made it easier for him to have spoken to the police about being forced to carry drugs. He was to be paid 900 euros for carrying the drugs. He had pleaded guilty to the offence. His evidence was that he told his lawyer that he had been forced to carry the drugs and believed that his lawyer had told the court, although he was equivocal about whether the court had been told. He had been sentenced and had absconded from custody. He had come to this country and remained here for two and a half years. He only raised the trafficking issue after he had been arrested under the warrant.

In the light of the judge's findings it is difficult to see how the allegation of abuse can be maintained. The principle applies to the prosecuting authorities of a Requesting State whose request for extradition is not made in good faith. The argument cannot be put higher than that the Requesting State may not provide for the possibility of not imposing penalties on a victim of trafficking for his involving to the extent that he was compelled to do so. This, in relation to an offence committed over seven years ago.

This conduct, if established, is not, in my view, capable of amounting to an abuse of process.

Miss Westcott sought to answer this difficulty by relying on the case of Z v Poland [2014] EWHC 1242 (Admin) where, although the case was decided under Article 8, Mitting J observed that, on the facts as they appeared on the Arrest Warrant, he would have expected the Polish authorities to have considered the issue of trafficking and, if they had done so, real questions of oppression would (or at least might) have arisen.

In my judgment that conclusion, on the facts of that case, provides no support for the present appeal.

Miss Westcott submitted that a potential abuse of process arose where there had been no opportunity for the Requesting State to consider the possibility of trafficking and the application of the "non-punishment" provisions of the CAT and Directive.

The difficulty with this argument, however, is that neither the CAT nor the Directive provides immunity from prosecution or punishment, as has been recognised in R v L(C) and Others (see above) at [13]. I do not accept that the possibility that the respondent may not have considered that the appellant might have been trafficked in relation to an offence to which he pleaded guilty in 2007 amounts to an abuse of process.

Miss Westcott further developed her argument in two ways. First, she submitted that it was wrong to proceed with the extradition hearing when the issue of trafficking was still being considered by the NRM. I do not accept that submission. This country's compliance with its obligations under the CAT does not take precedence over its obligations under the Framework Decision. These are different issues.

Secondly, and in reply, she relied on what she characterised as "an inadvertent abuse of process of the court" and referred to a passage in the speech of Lords Sumption in Zakrzewski v District Court, Torun, Poland [2013] 1 WLR 324 at [11]. In that passage, however, Lord Sumption was dealing with two ways in which the English Court ensures that its own process is not abused. The first arises, where a respondent prosecutor has manipulated the process of the extraditing court for a collateral and improper purpose, and the second arises where the prescribed particulars in the warrant are wrong. Neither applies here.

The objection to extradition on the grounds of abuse of process does not apply conventionally to the police or the CPS or the Magistrates' Court, although it is likely that other forms of relief would be available if there had been an abuse of power. However, the appellant does not come close to showing that in the present case.

The appellant's case is that the courts of this country should decline to act on the Warrant because he says he was trafficked and therefore should not be returned to Spain to serve the remainder of his sentence.

On the assumption that he was trafficked, if the point was raised at the hearings in Spain, then it is hardly an abuse of the process for him to be returned. But even if it were not, the fact that the point was not raised does not make his return to a country (which has the same international obligations under the Framework Decision, the Directive and the Convention) an abuse of process.

All this was on the assumption that he was trafficked. In fact, the District Judge, having heard him give evidence, declined to find that he had been trafficked: see paragraph 24(6) of the Ruling.

For these reasons I reject the argument based on abuse of process. To the extent that a separate argument arises under Article 4 of the ECHR, the District Judge dealt with this in paragraphs 43-44 of his Ruling.

Although there was no appeal and no skeleton argument in support of the argument that the extradition would be contrary to the private and family rights of the appellant and his family under Article 8, it was an important part of Miss Westcott's argument, and the court as a public body would in any event be bound to consider it.

The District Judge dealt with this issue in paragraph 50 of his Ruling. He accepted that the extradition of an individual in these circumstances inevitably interfered with his private and family life and the family life of his family. The issue was whether that interference was disproportionate, given the public interest in giving effect to extradition arrangements and preventing, detecting and punishing crime. He cited familiar passages from the judgment of Lord Phillips in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 at [56] and Lady Hale in H(H) (see above) at [8].

The District Judge heard the evidence of the appellant and read the witness statement of his partner. He concluded at [54]:

"I recognise that the Article 8 rights of the [Requested Person] and his family are engaged. I fully accept that his children will be greatly distressed by, and that his family will suffer hardship if he is surrendered. The children will benefit from the continued love and support of their mother, who has the experience of raising children without support. The offence which the [Requested Person] committed was extremely serious and would undoubtedly have attracted a substantial term of imprisonment in this jurisdiction. He is a clear fugitive from justice. There has been no delay on the part of the [Judicial Authority], who cannot be criticised for failing to identified the whereabouts of the [Requested Person] who was living in the UK clandestinely. I am satisfied that it is a proportionate response to his and his family's Article 8 rights to order his surrender and I do so pursuant to section 21(3) [of the] 2003 Act. The order will be for his surrender ten days after the Conclusive Decision on his trafficking referral."

In my judgment the District Judge's conclusion that the rights of the appellant taken in isolation did not weigh heavily in the balance against extradition, was plainly right. Although the appellant has developed a private life in this country in the two years he has been here, he was a fugitive from a sentence of imprisonment and there has been no delay in effecting extradition: the EAW was issued promptly and was executed promptly once the appellant was located.

So far as the family life and the private life of the appellant's partner, child and step-children are concerned, the position is as follows:

(1)

His partner was born in Nigeria but acquired Italian nationality by marriage. Both her elder children were brought up in Nigeria. Her elder son, C, has joint Italian and Nigerian nationality. Her daughter, G, has Nigerian nationality. She came to this country in 2011 and the two elder children followed her. G came to this country in September 2013. An application for G to acquire Italian nationality is outstanding. Both children are doing well here.

(2)

The appellant has been with his partner for two years and they have had the child P together.

(3)

His partner is in employment. She does two 12 hour overnight shifts on Friday and Saturday.

(4)

The appellant cares for the children when she is at work, and also supports the elder two children after school.

(5)

The appellant has sought to regularise his unlawful immigration status and applied for a residence permit as the durable partner of an EEA national.

(6)

If he is extradited, his partner will not be able to work because of the children; her immigration status will consequently be affected; and his own future contact with his family will be put in serious jeopardy. As his partner's statement puts it: "Life would be very difficult without him".

(7)

His partner does not want to go back to Nigeria because the children are settled in this country.

(8)

The appellant has been the subject of curfew conditions since 17^th October which would be regarded as the equivalent of one-half of a period on remand in this country. He has only 619 days remaining to serve under his Spanish sentence.

It is clear that the appellant is not the primary carer of G and P. He has sole care overnight twice a week. Although I accept that the consequences of the interference with family life can properly be described as severe, and although there is no test of exceptionality, the consequences are not exceptionally severe. I am not persuaded that these factors (powerful as they are in personal terms) are sufficient to outweigh the substantial public interest in extradition in this case.

For these reasons I dismiss the appeal.