Berisa v District Court In Maribor, Republic of Slovenia

MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Grant, who ordered that the appellant be extradited to Slovenia in order to face charges of involvement in drugs. I say involvement in drugs: in fact, there were three charges before the district judge, but one of those he disposed of on the basis that the time limit had expired for its prosecution in Slovenia.

The other two related to offences allegedly committed back in 2002 and 2003 respectively. The first was an allegation of the supply of a single dose of heroin in April 2002, and the second surviving offence was supplying heroin on 12 occasions in the first two weeks of January 2003. I say "supplying": not quite directly supplying to users, because what the warrant alleges so far as any details are concerned was that between those dates he served as an agent in the purchase of heroin. He purchased it from a named person for another named person at least 12 times, each time for an amount it is said of approximately €14. They are, as is clear (because it was accepted that there was a typographical error in the warrant which was sorted out before the district judge), small quantities of heroin; on the face of them, one would have thought for individual use by someone. It looks, judging by the allegation, as if he was acting on another's behalf in obtaining, but was not involved directly in supplying to users. Be that as it may, any involvement of this nature with heroin is obviously serious.

The appellant himself was born in November 1976, and so when he committed the alleged offences he was some 26 or 27 years old. Accordingly, this could not be put down to youthful indiscretion. However, the fact is that we are now some 12 years or more on from the commission of the offences and delay is obviously an important factor.

He came to this country, according to the Slovenian authorities, in early 2005. That is clearly wrong, because he was arrested in this country for an offence of drink-driving which was committed in November 2004, so he clearly was here by then, and one would imagine must have been here for a little time by then.

Be that as it may, the information from Slovenia as to the sequence of events and the timing of any action in relation to possible prosecution for the offences in question is briefly as follows. Apparently he was questioned in December 2002 in relation to the first matter. Again, in August 2003 there were further questions of witnesses and an indictment was filed on 20 August and served on the appellant in October (there had been earlier service on his defence counsel). He was obviously then aware of the charges that he faced. In due course, there was a hearing scheduled for March 2005. In the meantime, he had been questioned himself in February 2004 and had made a written promise that he would not evade judicial proceedings. The same promise was made in March. One suspects that those promises were material to whether he would be remanded in custody or granted the equivalent of bail. In any event, as I say, the charges would have been dealt with in March 2005 but the appellant was no longer in the country.

Before the district judge he gave evidence. The district judge was not impressed with him as a witness and took the view that he was clearly a fugitive from justice. The Slovenian authorities issued an International Arrest Warrant and a European Arrest Warrant in 2005, but I have no evidence that they were or should have been aware of where the appellant was. He says that he came to this country and lived openly here. But importantly, in 2013 he attended the Slovenian Embassy in order to obtain a new passport. Accordingly, they must have been aware that he was here by then, but it took them another year or so to issue the arrest warrant which has led to his arrest with a view to deportation, because that was not done until July 2014.

Albeit the delay there was no more than a year, it was important in the light of the length of time that had elapsed since these offences were allegedly committed. I say "allegedly", but I do not understand there to be any suggestion that he has a defence to these charges. Nonetheless, he has not been convicted of them.

The matter that was raised by Mr Casella on his behalf related to the new section 21A of the Extradition Act as to whether he faced a custodial sentence. It was indicated from information that had been obtained from a body that is active in monitoring and dealing with criminal matters in Slovenia that the likely outcome, were he to plead guilty to these offences, having regard to their age and the circumstances that he had not been involved in any criminal activities since (subject to the drink-driving, which should not be held in any material way against him), was that the likely result would be a suspended sentence.

However, it seems to me that it is quite improper for me to go into that aspect in deciding on proportionality within the new 21A. The fact is that these are serious matters involving Class A drugs and not merely personal use. The information from the Slovenian judge is that they carry, it seems, a minimum of 1 year imprisonment and up to 10 years, and he cannot say whether suspension would be in the circumstances appropriate. That will no doubt depend on the mitigation, which, one would have thought, would include the lapse of time and the circumstances of the appellant so far as his activities since were concerned. But what matters is that this crosses the custodial threshold, as it clearly does.

The real issue here is the fact that he has formed a relationship with a Mr Nadeau, and it is Mr Nadeau's condition that is material so far as the matters put before the district judge and before me are concerned. Sadly, Mr Nadeau suffers from a rare condition which affects his brain. It is not necessary to go into the full details. It is known as dural arteriovenous fistula and it requires, undoubtedly, operative treatment. The problems created by it are intrusive tinnitus and a feeling of pressure in the head, and there is a real risk that he may suffer what amounts to a stroke if the matter is not dealt with.

There is an up-to-date medical report which is in the papers. This indicates that there is a 90% chance that the fistula could be occluded by means of a particular form of operation known as therapeutic embolisation. Of course there is always a risk in operations, and particularly operations such as this on the brain. It is possible, if all goes well, that he could be discharged from hospital within 48 hours and no particular care and supervision would be required afterwards, but there was a 5% risk of a serious complication.

Mr Nadeau gave evidence before the district judge and impressed him as an "appealing witness", as it was put. His evidence was he would be devastated if his partner had to return to Slovenia and obviously there would be real upset if that were to take place. The up-to-date medical report indicates that there is a good chance that all will go well, but there may well be a need for postoperative convalescent care. So far as Mr Nadeau is concerned, he has indicated that if the appellant were to be extradited, he would not want to undergo the operation until the matter was sorted out, that is to say until he was aware whether the appellant would be able to return within a short or a longer period of time.

Having regard to the view that the district judge took of him as a witness, I am not prepared to take the view that that is other than an entirely genuine, and in the circumstances reasonable, approach for Mr Nadeau to have taken. But it does, of course, emphasise that it is his condition which leads to the Article 8 considerations which are material in this case. Indeed, the district judge found that effectively there was a family life and Ms Iveson does not dissent from that approach. But she submits that, having regard to the approach that this court has to adopt in these extradition cases, it cannot be said that in all the circumstances the condition of Mr Nadeau does mean that the court should agree that extradition should not take place.

I note the observations of Saunders J in Kepta v Regional Court in Kielce, Poland [2013] EWHC 3321 (Admin), where he observed:

The material factors in this case are the lapse of time since the offences were committed, the nature of the particular offending (albeit involved with Class A drugs), and the up-to-date position in relation to Mr Nadeau, which perhaps has been clarified to some extent since the hearing before the district judge.

This is a case in which the balance is exceedingly difficult to apply. It seems to me that, albeit the appellant was a fugitive, nonetheless the delay is a very important consideration when deciding whether extradition is appropriate. It seems to me here that the delay of up to 12 months between knowing that he was here and actually getting round to issuing the EAW is the more significant because of the antiquity of these offences, and I bear in mind too that since the end of 2004 the appellant has been in this country and there has been no suggestion that he has behaved other than in an entirely appropriate fashion.

These matters are, as I have indicated, very difficult. But I am just persuaded in this case that the circumstances and the significant condition of Mr Nadeau are such as to justify my deciding on the facts of this case (and I emphasise on the facts of this case, because there has been too much citing in this jurisdiction of factual cases which lay down no legal principles of any sort) that I am just persuaded that this appeal should be allowed.

MR CASELLA: Thank you, my Lord. I seek an order from central funds for the --

MR JUSTICE COLLINS: Yes, that is the costs before the magistrates' court, is it not? You are entitled to that.

MR CASELLA: I think it was £150.

MR JUSTICE COLLINS: That seems reasonable.

MR CASELLA: Thank you very much.