BZQ v Overijssel District Court, Zwolle, Kingdom of the Netherlands

The appellant, BZQ, appeals against the order made on 2 March 2023 by DJ Zani at the Westminster Magistrates’ Court to extradite her to the Netherlands (“the Order”).

BZQ’s sole ground of appeal is that the district judge erred in his decision in relation to section 21 of the Extradition Act 2003 and Article 8 of the European Convention on Human Rights.

On 18 October 2023, Swift J ordered that BZQ’s application for permission to appeal the Order should be considered and decided at an oral hearing.

At a hearing on 1 February 2024, Hill J granted permission to appeal on the single ground that is advanced by the appellant, namely, that the district judge erred in concluding that the extradition of the appellant was compatible with her and her family’s rights under Article 8 of the European Convention on Human Rights (ECHR).

On the same occasion, Hill J made an anonymity order in relation to the appellant, who is to be referred to in these proceedings as “BZQ” and in relation to BZQ’s daughter, her son, and her son’s partner, who are to be referred to in these proceedings as “A”, “B”, and “C”, respectively.

Hill J also gave the appellant permission to rely on new evidence in the form of two further statements from BZQ, together with appended photographs, and a report concerning A dated 11 December 2023 of Dr Sharon Pettle, a consultant clinical psychologist.

The respondent seeks BZQ’s extradition to the Netherlands in respect of her conviction in July 2019 for providing the “facilitation of unauthorised entry and residence”, for which she was sentenced to 18 months’ imprisonment, of which 4 months were suspended for an operational period of two years. According to the respondent, 317 days (approximately 10 months) of BZQ’s sentence remain to be served.

Following an appeal hearing on 5 March 2020, BZQ’s conviction was upheld by the Court of Appeal in the Hague in its decision dated 19 March 2020.

A domestic warrant was issued on 27 July 2021 by the Examining Magistrate of the Overijssel District Court in Zwolle. It was certified by the National Crime Agency on 2 August 2021. BZQ was arrested on the warrant on 23 August 2021.

On 24 August 2021, following the initial hearing, BZQ was released on bail subject to conditions. During the months that followed, concerns began to arise regarding the mental health of BZQ’s daughter, A, and the impact of the extradition proceedings on her.

Aside from the conviction for which extradition is sought, BZQ has no previous convictions or cautions in this jurisdiction, Latvia, or elsewhere.

The respondent has provided two sets of further information, one dated 11 January 2022 and one dated 29 July 2022.

The extradition hearing was originally listed for 23 May 2022, then for a combination of reasons that were not the fault of BZQ, it was adjourned to 2 September 2022.

On 2 September 2022, DJ Snow adjourned the extradition hearing and made an order under section 7 of the Children Act 1989 that a report on A’s welfare be prepared. Subsequently, a report dated 2 December 2022 (“the Section 7 Report”) was prepared and was part of the materials before DJ Zani at the extradition hearing.

On 12 January 2023, the extradition hearing took place before DJ Zani, during which he heard evidence and at the end of which he reserved his decision.

At the time of the extradition hearing, BZQ was 51 years old, and her daughter, A, was 12 years old. B, who is A’s half-brother, was 24 years old.

BZQ is a Latvian national. A’s father lives in Latvia, and neither BZQ nor A is in touch with him. BZQ’s case is that she is the sole carer for A, who has special needs due to her mental health difficulties and on whom, due to her vulnerabilities, extradition would have a disproportionate impact. After BZQ’s arrest, A started self-harming. According to BZQ, A’s self-harming escalated after the extradition hearing.

On 27 February 2023, solicitors for the appellant sent the district judge photographs of A’s self-harming to her arms and stomach and invited him to adjourn the giving of judgment so that there could be further investigation of her condition. The district judge declined to do so.

On 2 March 2023, the district judge handed down his judgment (“the Judgment”) in which he set out his reasons for ordering BZQ’s extradition to the Netherlands. The sole objection raised by BZQ to her extradition was that it would not be compatible with her and A’s rights under Article 8 of the ECHR. The salient points of the Judgment are as follows:

In the final paragraph of the Judgment, the district judge noted that he had refused an “11^th hour request” by BZQ’s legal team to consider additional evidence (in the form of the First Additional Statement and photographs of A’s self-harming) and to postpone release of the Judgment so as to enable BZQ’s legal team to seek further information regarding A's self-harming episodes. The district judge stated that he had given the request careful consideration, but he did not consider it to be in the interests of justice to grant it. He gave no reasons, however, as to why he had reached that conclusion.

In July 2023, A took a small overdose (4 pills) of paracetamol, having said to someone at her school that she did not want to be alive. She was taken to the accident and emergency department of a local hospital, where it was determined that she was not in danger given the amount of paracetamol taken.

Swift J in his order of 18 October 2023 granted an extension of funding for a report about A to be prepared by Dr Pettle. Dr Pettle was instructed by BZQ’s solicitors to prepare a report addressing the impact that the extradition of BZQ would likely have on A, including the impact on other family dynamics in the short and longer term. Dr Pettle’s report dated 11 December 2023 was served on the respondent on 19 December 2023.

The court’s powers on an extradition appeal are set out in section 27 of the Extradition Act 2003, which provides that the court may allow the appeal if the court is satisfied that either (i) or (ii) is true, namely:

The test on appeal is whether the district judge’s decision was wrong, namely, whether the district judge erred in such a way that he ought to have answered the statutory question differently: Surico v Italy [2018] EWHC 401 (Admin) at [30]-[31].

In Love v United States of America [2018] EWHC 172 (Admin), [2018] 1 WLR 2889 (DC), which concerned an appeal under section 103 of the Extradition Act 2003 against a decision of the Secretary of State for the Home Department to order a requested person’s extradition, the Divisional Court (Lord Burnett of Maldon CJ and Ouseley J) stated at [26] that the task of the appellate court is:

“… to decide whether the decision of the district judge was wrong. What was said in the Celinski case and In re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

As noted by the district judge, the key principles regarding the application of Article 8 in extradition proceedings were set down in Norris v United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487 (SC), H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 (SC) and Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 (DC).

The Supreme Court in H(H) gave important guidance on the proper approach of the court when considering the impact of extradition on dependent children of a requested person. Baroness Hale in H(H) at [8] and [11] summarised various principles that are relevant to this case, including the following:

In Belbin v France [2015] EWHC 149 (Admin), a case decided a few months before Celinski, the Divisional Court (Aikens LJ and Edis J) gave the following helpful guidance at [66] on the correct approach of the appellate court to an extradition appeal:

“66.

… If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of ‘fresh evidence’ arises on an appeal on ‘proportionality’, a successful challenge can only be mounted if it is demonstrated, on review, that the judge below: (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse.”

In Celinski, the Divisional Court (Lord Thomas of Cwmgiedd CJ giving the judgment of the court) summarised the general principles arising out of Norris and H(H) at [5]-[13]. At [15]-[17], the Divisional Court indicated that the judge hearing a case where reliance is placed by a requested person on his or her Article 8 rights should adopt a “balance sheet” approach, setting out the factors for and against extradition together with his reasoned conclusions.

The Divisional Court in Celinski then considered at [18]-[24] the proper approach of the appellate court to an appeal against a district judge’s decision on an Article 8 ground of opposition to extradition. During the course of that discussion, it quoted at [21] the following passage from the judgment of Lord Neuberger PSC in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 (SC) at [93]-[94] regarding how an appellate judge might approach the appellate review of the trial judge’s conclusion on proportionality:

“93.

There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge’s conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge’s view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).

94.

As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge’s decision was not based on his assessment of the witnesses’ reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge’s decision was wrong, then I think that she should allow the appeal.”

After considering, among other things, the above passage from Re B, the Divisional Court in Celinski at [24] summarised the approach the appellate court should take when considering a ground of appeal alleging error by a district judge in determining the Article 8 issue:

“24.

The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger PSC said, as set out above [in Re B at [93]-[94]], that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”

As noted above, on 5 February 2024, Hill J gave BZQ permission to rely for this appeal on the following additional evidence:

In support of BZQ’s appeal, Ms Amelia Nice submitted that the district judge made relevant errors in his assessment of the key factors for and against extradition. The cumulative effect of those errors, she submitted, caused him to reach the wrong decision.

Ms Nice submitted that, in any event, having regard to all of the new evidence, the court should look at the matter afresh and conclude that the consequences of the extradition of BZQ would be exceptionally severe for A and therefore, having regard to all of the relevant factors, would not be compatible with the Article 8 rights of A, such that BZQ’s discharge should be ordered under section 21(2) of the Extradition Act 2003.

Ms Nice submitted the district judge’s errors in his analysis of the Article 8 question included the following:

Ms Nice submitted that, in any event, the court now had the additional evidence of the First Additional Statement, the Second Additional Statement, and Dr Pettle’s report. There is more than adequate evidence on which the court can and should conclude that the impact of BZQ’s extradition will have exceptionally serious consequences for A. BZQ’s offence, while serious, is not as serious as the district judge apparently thought. BZQ has faced a protracted period of uncertainty over her immigration status, which has had a “profoundly” negative effect on A, according to Dr Pettle. For all these reasons, she submitted, the court should grant the appeal and discharge the extradition order.

For the respondent, Ms Georgia Beatty submitted that the district judge correctly identified the relevant legal principles and the factors weighing for and against extradition, carried out an orthodox balancing exercise, and reached a decision that was open to him on the Article 8 question. Many of BZQ’s criticisms of the district judge’s consideration of various factors amount to no more than a disagreement with the weight given by the district judge to matters that were for him to assess. Ms Beatty submitted that the court should be slow to interfere with the district judge’s assessment of the various factors for and against extradition, following his consideration of the evidence, including the oral evidence that he heard.

Ms Beatty submitted that the district judge was entitled to refer to BZQ’s offence as “human trafficking”, given that it is referred to as such in the warrant itself in section e) (on page 5 of the English translation). The district judge had the full particulars of BZQ’s offence, and there is no reason to suppose he did not properly understand the scope of the offending conduct and give it its proper weight in the overall assessment. The district judge’s reference to the safe haven point was part of his description of the general public interest in extradition. He did not give it undue weight.

Ms Beatty submitted that the district judge considered all the evidence he had concerning A and took it carefully into account. He was entitled on that evidence to find that the impact on A would be significant but manageable. The district judge was entitled to conclude that the factor of uncertainty about the appellant’s immigration status did not carry great weight. As to the impact of extradition on BZQ herself, the district judge took that into account as part of the balancing exercise that he properly carried out.

In relation to the First Additional Statement, including the photographs, which BZQ had tried to get the district judge to consider following the extradition hearing but before he handed down judgment, Ms Beatty submitted that he was entitled to conclude, as a case management decision, that the interests of justice did not require that he consider that post-hearing evidence or that he postpone release of the Judgment so that further investigation of A’s self-harming could be undertaken.

In relation to the new evidence more generally, including Dr Pettle’s report, Ms Beatty submitted that if it had all been before the district judge he would not have been required to reach a different decision. The new evidence simply provides more detail on factors already known to the district judge, together with some updating. It would not have required him to reach a different decision. Ms Beatty therefore invited the court to dismiss the appeal and uphold the district judge’s extradition order.

While there is some force in some of Ms Nice’s specific criticisms of the district judge’s approach to the Article 8 question, I am not persuaded that the judge reached the wrong decision on the information before him. As to the district judge’s decision not to consider the additional evidence sent to him post-hearing or to postpone release of the Judgment to allow further of A’s self-harming, the district judge was already aware of A’s self-harming episodes and had taken them into account in reaching his decision. It was not unreasonable for the judge to conclude that no point would be served by his postponing release of the Judgment on that basis.

Hill J ordered that the new evidence be admitted, and it is now before me. On the basis of everything I have read, including the new evidence, and taking into account the oral submissions at the appeal hearing on behalf of each party, I am persuaded that the district judge did not have an accurate picture of the extent of the likely impact on A of BZQ’s extradition to the Netherlands.

I am persuaded that the assessment of the district judge as to the ability of B, with C’s help, and/or BZQ’s sister to provide adequate care for A in light of her particular mental health difficulties and self-harming conduct was too optimistic, although understandably so given the information before him at the extradition hearing.

I accept, based on the evidence of Dr Pettle, that the impact on A of BZQ’s extradition would be exceptionally severe.

The true position appears to be that this is, indeed, a sole carer case and that neither B nor BZQ’s sister is effectively in a position to provide proper care to A. B has a number of challenges of his own, including caring for his own child, the turbulence of his relationship with C, the demands of B’s and C’s respective jobs, and B’s own vulnerabilities, including depression and anxiety, all of which would raise a considerable doubt about his ability to provide effective care to A. There is good reason to doubt whether he would be able to obtain a Child Arrangement Order in respect of the care of A as recommended by the Section 7 Report. I understand that given the expense, difficulty, and time that it would take to obtain such an order, no effort has yet been made in that regard.

Similarly, BZQ’s sister has three children of her own, and, whatever may have been the position at the time of the hearing before the district judge in January 2023, BZQ’s sister can no longer be counted on to provide the care that A needs.

Looking, therefore, once again at the balance of factors in favour of and against extradition (taking into account the factors found by the district judge, having regard to the new evidence and updates at the appeal hearing of BZQ’s and A’s current position):

Having considered all of this, in light of the information now before the court, in particular, the exceptional severity of the impact of extradition of BZQ on A, whose best interests are a primary consideration, I conclude that had the new evidence and updated information that was available at the appeal hearing been before the district judge, this would have resulted in his answering the Article 8 question differently such that he would have been required to order BZQ’s discharge.

Accordingly, the appeal is allowed. BZQ will be discharged.