B v The District Court In Trutnov & Anor (Two Czech Judicial Authorities)

For the purposes of section 20 of the Extradition Act 2003, whether a person was convicted in her presence depends on the legal process in the requesting state. A conviction may arise through service and non-objection to a penal order, even though the person was not physically present when it was issued. An authenticated statement from a requesting judicial authority may establish service where the judge accepts it and disbelieves contrary evidence.

Article 8 will bar extradition only where the consequences for family life are exceptionally serious and compelling. The approach in immigration cases cannot simply be transferred to extradition, because extradition serves the distinct public interest in international reciprocity and the prosecution or punishment of crime.

The appellant challenged orders of the City of Westminster Magistrates Court directing her extradition to the Czech Republic under two European arrest warrants. One warrant concerned a Czech penal order for fraud and the other concerned a conviction for theft. The appellant argued that she had not been convicted in her presence, that the requesting authority had not proved service of the penal order, and that extradition would be incompatible with the Article 8 rights of her four young children and family.

The District Judge rejected those arguments and ordered extradition. The Administrative Court considered whether the section 20 procedure applied to the first warrant and whether the family circumstances made extradition disproportionate under section 21 of the Extradition Act 2003.

1. Appeal dismissed. The District Judge’s reasoning and decision could not be faulted.
2. Section 20 requires investigation of the requesting state’s legal system. A trial is the legal process resulting in a final determination, and foreign procedures must be assessed according to their own legal character. The Czech information established that the penal order had the nature of a guilty verdict, became effective only after service, and could be challenged within eight days. The appellant’s failure to object transformed it into an enforceable conviction. She was therefore convicted in her presence for section 20(1), notwithstanding her absence when the order was initially made. The claim that she would not receive a retrial consequently did not require her discharge.
3. The requesting judicial authority bore the burden of proving the section 20 issue to the criminal standard. Section 202(2) and (4) permitted a duly authenticated document from a Part 1 territory to be received in evidence. The District Judge was entitled to rely on the judge-signed information that the penal order had been served and signed for, together with his rejection of the appellant’s evidence.
4. Article 8 claims in extradition are governed by the high threshold identified in Norris v Government of the United States of America [2010] 2 WLR 572. The consequences of extradition must be exceptionally serious before they outweigh the importance of extradition. The interests of international reciprocity and ensuring that persons suspected or convicted of crime are dealt with in the requesting state distinguish extradition from immigration removal.
5. ZH (Tanzania) v Secretary of State [2011] 2 WLR 148 concerned immigration control and did not alter the established extradition approach. Although the children would suffer serious disruption, including possible separation from their mother and removal from the United Kingdom, those consequences were not exceptionally compelling. The offences were sufficiently serious and the Article 8 challenge failed. There was no order for costs, save for detailed assessment of the appellant’s publicly funded costs.

• High Court (Administrative Court): The appeal against the City of Westminster Magistrates Court’s extradition orders was dismissed.
• City of Westminster Magistrates Court: On 13 December 2010 the District Judge ordered extradition to the Czech Republic under both European arrest warrants.