CO/12332/2012 
Neutral Citation Number: [2013] EWHC 317 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 6 February 2013
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 
GITA FRIDENBERGA 
Appellant

v 

PUBLIC PROSECUTOR, PROSECUTOR GENERAL OFFICE FOR THE REPUBLIC OF LATVIA 
Respondent 
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Mr M Hawkes (instructed by Punatar & Co) appeared on behalf of the Appellant
Mr N Hearn (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE COLLINS:  This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Zani, given on 13 November 2012, directing the appellant's return to Latvia to face a charge of possession of 3.12 grams of amphetamine with intent to supply, the offence in question allegedly having been committed in May 2008.  The appellant, according to the warrant, was involved with others but as far as she is concerned the allegation is based upon that quantity of amphetamine.  According to the law in Latvia, the charge that she faces carries on conviction a minimum sentence of 5 years' imprisonment, with a maximum of 12 years.  
2.	So far as the offence is concerned, were it committed in this country there is no doubt in my mind that it would not cross the custody threshold.  There is no evidence before me that she has committed offences in the past.  Of course, one must bear in mind that the approach of other countries to the distribution of prohibited drugs can be, and can properly be, very much more severe than the situation in this country.  Nonetheless, when it comes to the question of whether it would be proportionate to extradite a requested person, the court is entitled to take into account the nature of the offence and whether in this country a custodial sentence would be likely to be imposed.  As it happens, she served, it seems, some 4 months in custody on remand in Latvia, she then came to this country, and following her arrest on 1 August 2012 under the warrant she has remained in custody.  The result is that she has served in custody a period amounting to something in the order of 10 months already, which clearly would be more than ample were she convicted of a similar offence in this country.  
3.	Before the District Judge, a number of matters were raised on her behalf but in particular it was asserted that she had attempted acts of serious self harm in the past, and indeed she gave evidence to that effect, and she had marks on her arm which were consistent with that history.  There was a lack of medical evidence before the District Judge but there is now available a report which makes it clear that she is, if I may put it this way, decidedly mentally fragile.  Whether or not there is a real likelihood of suicide is another matter, but part of the basis for the reporting doctor deciding on the dangers to herself were she to be extradited is because she has alleged that she was raped by the arresting officers in Latvia.  Unfortunately, that was not a matter which she raised before the District Judge and it is not a matter, of course, into the rights and wrongs of which this court is able to go.  The whole purpose lying behind the provisions of the 2003 Act, that fresh evidence can be relied on on appeal generally only if it was not available below, is to avoid this court having to be faced with matters that may be contentious and which ought to have been gone into before the District Judge.  One of the problems in this jurisdiction is that this court has no power to remit for reconsideration if material needs to be investigated.  Accordingly, I have made it clear to Mr Hawkes that I was not prepared to allow that material to be advanced before me.  
4.	However, I do recognise that where one is concerned with the European Convention on Human Right and an alleged possible breach of it, the court has to adopt an approach which is relatively flexible because, obviously, it is important that rights are not breached, and if there is a real possibility of that, the court ought at least to consider the material.  But in this case, as I say, it is possible to consider it in relation to the report which has been prepared on her behalf.  The question for me in those circumstances, where she has settled here and on the face of it has conducted herself in a perfectly proper fashion here, is whether her Article 8 rights, which undoubtedly exist in the sense that she has private life rights, mean that it is not proportionate in all the circumstances that she should be removed.  
5.	It is, in my judgment, important that the possible requesting States consider the question whether in all the circumstances it is proportionate to require a return for whatever offence is alleged, or indeed sometimes, in relation to convictions, where a short sentence is all that is left to serve.  Here, as I say, we are dealing with an accusation case, and we are dealing with an accusation case which would not on any view result in a penalty which was more severe than the time that she has spent in prison here, equivalent to a sentence of some 20 months on our approach.  
6.	In those circumstances, having regard to all the material, I am satisfied that this is one of those rare cases where it can be properly said that now it is not proportionate to require her removal to face that particular charge.  Accordingly, I propose to allow the appeal.  I must make it plain that this is not, and cannot be taken as, a basis for deciding any similar case.  It depends entirely on its own facts, as indeed do most, if not all, cases where Article 8 is in issue.  Some of these are reported, some are not but, as I say, it is of vital importance that it is appreciated that they should not be regarded as authorities in any way.  The appeal is therefore allowed.  
7.	Do you want your usual order?
8.	MR HAWKES:  I would be most grateful, my Lord.
9.	MR JUSTICE COLLINS:  All right.