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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lythgoe v Malaga Provisional Criminal High Court Spain [2014] EWHC 3936 (Admin) (05 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3936.html Cite as: [2014] EWHC 3936 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		5 November 2014

1. MR JUSTICE COLLINS: This is an appeal under Section 26 of the Extradition Act 2003, against the decision of District Judge Purdy given on the 7 August, whereby he directed the extradition of the appellant to Spain, to face an accusation of an offence committed a long time ago now, in 2004.
2. The offence in question was dealing in a very small quantity of heroin and cocaine. The offence arose because a police officer purchased from the claimant in the street 0.13 grams of heroin and cocaine, cocaine being at 35 per cent purity and heroin being at 11 per cent, and the value was some 60 euros.
3. That, in itself, is obviously a very low level of drug trafficking but the appellant had on him, on the day in question, which was 24 November 2004, some 395 euros. The allegation, as set out in the warrant, is that that came from his illegal activities, that is to say drug dealing and the individual who was providing him with the drugs that he was to sell was also arrested and is a co-defendant.
4. He was in custody for some 8 weeks. He was then released on bail, and he gave an address in Spain. I am told that that was a hotel. He did have a lawyer acting on his behalf. However, he chose to leave Spain, without informing the authorities that he was doing so, or where he was going.
5. It seems to me, although there has been no specific finding by the District Judge, that it is inevitable that he was to be treated as a fugitive from justice when he left Spain in 2005.
6. Mr Lloyd says that it was known that he was a UK citizen and, therefore, albeit a domestic warrant was issued in Spain, the authorities have issued an EAW then, albeit, of course, they did not then know for sure where he had gone.
7. In fact he came to this country, and went to live with his parents. It is said on his behalf, and I have no reason to doubt, that at the time that he committed the offence he was, himself, a drug addict and he was doing what he was doing in order to enable him to receive the drugs to feed his habit.
8. That is a not unusual picture, but he has since managed to wean himself off. It is a fact that subject possibly to two occasions when he was dealt with, albeit not prosecuted, for allegedly being drunk and disorderly and allegedly having shop-lifted, he has not committed offences in this country. He had, as long ago as 2001, committed a burglary but that was before he went to Spain, and I imagine that at that time he was already hooked on drugs.
9. Be that as it may, he chose to accompany his parents on a cruise to Spain in 2011, and was apprehended in Cadiz. It seems that the Spanish authorities were, perhaps because of the presence of the parents willing to release him on bail, knowing that he was returning to England with his parents, although by then the necessary address had been provided. He did indeed return to this country.
10. He was notified in April 2013 that he was required to return to Spain, in order to face the charge which is the subject of the warrant. He did not comply with that obligation and, as a result, the arrest warrant was issued.
11. It was submitted that because the quantity of drugs was so small this was an offence which, albeit of course not trivial, was one which fell very much at the low end of the drug offences.
12. If one looks at the quantity and the offence in isolation, that may be so, but it is quite clear from the warrant that the allegation is that this appellant was dealing in drugs, selling at street level; and indeed, that is not an uncommon situation in this country, where police are aware that drug sales in the street are being carried on and make purchases in order to establish that that is indeed the situation.
13. That offending is clearly more serious, and, as it seems to me, this offending on the face of it, when I appreciate that the allegations in relation to the 395 euros are not accepted; if one looks at the accusation, is not by any means an offence that can be looked at as dependent only on the small quantity on that one occasion.
14. That being so, it would, in this jurisdiction, be likely to attract a custodial sentence and one of not the smallest amount, subject, of course, to any mitigation.
15. The District Judge took the view that it was possible that there might in this country be a suspended sentence. He would, I think, in the circumstances, assuming that the allegation of more than that individual occasion was established, be unlikely to receive a suspended sentence.
16. However, I have to consider, and the District Judge had to consider the situation having regard to two important factors:
17. 1) The length of time that has elapsed since the alleged commission of the offence. It does not seem in fact that there is any issue as to his guilt of that offence, but there is an issue as to the extent of his drug dealing.
18. 2) The fact that he looks after his aged parents, who are by no means well. His father is now 79 years old, has a number of health problems, had a heart attack and a by-pass some 11 or 12 years ago and has difficulty in his mobility.
19. As a result, the appellant helps him. He relies upon the assistance given by the appellant. The appellant's mother is now 72. She, too, is not entirely well. She has rheumatoid arthritis and needs his assistance in helping her to carry out various tasks in the house and would find it quite impossible to cope on her own. Indeed both parents would be in real difficulty.
20. That is an important consideration. Mr Lloyd submits that, albeit he accepts that social services would have to provide care for the parents if the appellant was not there, that is an which expense the State would have to meet, and that is something that can be taken into account in considering the State's obligation to comply with the arrest warrant procedure.
21. It may be that it is something which could, in an individual case, carry some weight but in my view, it is an argument that will very rarely get off the ground in these cases. The reality is that if the offending is very low level, or the likelihood is that no penalty of any substance will be handed down, that is a factor that possibly can be taken into account.
22. However, as I say, the reality here is that in my judgment, albeit not the most serious of drug trafficking offences, this is by no means, as the District Judge said, by no means trivial or minor.
23. There is no question that the Article 8 rights of both parents who will be regarded as victims of this appellant's offending can properly be taken into account. However, it is plain that they are not left without assistance; assistance will be available.
24. Mr Lloyd makes the point, and one sees the force of it, that having regard to their age, if he is sentenced to a substantial term (and I gather that the prosecutor has indicated that he would be seeking a sentence of some 4 years) then it may well be that having regard to their health, certainly his father will not see his son again.
25. But that depends upon an assumption that there will indeed be a sentence of that sort of level. I am afraid I agree with the District Judge, who considered the matter carefully. He did take account of the fact that this was 10 years old, as is plain from his judgment, and the submissions that were made.
26. He also considered carefully the situation of the parents and whether extradition would be, in the circumstances, proportionate. The reality is that having regard to the decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, the hurdle to be surmounted by an appellant who seeks to argue that, for Article 8 reasons, whether affecting victims or himself, it would be disproportionate to extradite is a very high one, having regard to the obligation to honour our international obligations.
27. It of course will be a matter for the Spanish authorities when the full extent of the appellant's wrongdoing is established in court to decide what sentence is appropriate.
28. It seems to me, and I hope that this will be conveyed to the Spanish judge, that full account should be taken of the fact that this offence was committed a long time ago; that the appellant has, if he manages to establish this, and I see no reason why he should not, weaned himself off reliance on drugs; that he does have very elderly and infirm parents, who are being deprived of his assistance and who would need him, and who are reaching towards the end of their lives and are, and have been, dependent upon him.
29. Accordingly, there are strong reasons why compassion should be shown to this particular appellant. True, he should not have left Spain in 2005. True, he should have returned in 2013. Nonetheless, those actions by him should not, in all the circumstances, weigh too heavily against him when the court considers the appropriate sentence.
30. In all the circumstances, it would be no surprise if the court took, the view that it could act with considerable leniency. One does bear in mind that the appellant has already served 8 weeks in custody when he was originally arrested.
31. However, having said all that, I am, I am afraid, satisfied that the District Judge was correct in the view that he took and that this appeal must be dismissed.
32. Mr Lloyd, I hope what I have said will assist to some extent.
33. MR LLOYD: I am very grateful, my Lord, thank you.
34. MR GIBBINS: My Lord, I will ensure that my Lord's comments are conveyed.
35. MR JUSTICE COLLINS: Would you, thank you.