- This is the judgment of the court.
- To assist the parties and the public to follow the court's line of reasoning, the text is divided into five sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation.
Introduction
- This is an appeal in extradition proceedings.
- An application is before the court to adjourn the "rolled-up" hearing listed for 8 April 2025, where permission and substantive merits are to be considered. The application is to delay the hearing pending a "conclusive grounds" ("CG") decision under the National Referral Mechanism ("NRM"). Consequently, the application raises two issues of legal interest and importance: the status and legal effect of a CG decision and the meaning and effect of section 61 of the Nationality and Borders Act 2022 ("NABA 2022").
- Permission to appeal is sought by a Latvian national in whose favour I have granted an anonymity order. He is the requested person, and his name shall be anonymised as SLP ("the applicant"). The respondent in the appeal is the Prosecutor General of the Republic of Latvia, acting on behalf of the requesting state ("the respondent"). The applicant is represented by Mr Seifert of counsel; the respondent by Mr Williams. The court is grateful to both counsel for their informed and focused submissions.
- On 21 August 2023, the court below ordered SLP's extradition to Latvia by a decision of District Judge Leake ("the Judge") sitting at the Westminster Magistrates' Court. This is the decision under appeal. The order was made under section 21A(5) of the Extradition Act 2003 ("EA 2003"), and since the warrant was issued after the United Kingdom withdrew from the European Union, the applicable framework is the Trade and Cooperation Agreement ("TCA"). These are Part 1 proceedings under the EA 2003 as Latvia is a Category 1 territory.
- The principal issue in the substantive extradition proceedings is framed by the Judge in this way:
"whether extradition would be compatible with articles 4 and 8 of the European Convention on Human Rights, there being a claim by the requested person that the conduct amounting to the alleged extradition offence arose because he was a victim of slavery/trafficking in Latvia."
- The Judge determined that there was no risk of a breach of article 4 and that extradition would not be incompatible with the requested person's article 8 rights. Permission to appeal is required in such extradition proceedings. The permission application came before Julian Knowles J on the papers on 29 April 2024. He ordered a rolled-up hearing because the issues, he stated, were "sufficiently complex". However, there is a preliminary point in dispute between the parties. It is whether the rolled-up hearing listed for 8 April 2025 should be further adjourned to await a CG decision from the Single Competent Authority ("SCA") under the NRM. In the United Kingdom, the Home Office (more accurately, a part of it) acts as the SCA to identify and support victims of trafficking and slavery in furtherance of the nation's international treaty obligations.
- Therefore, in this judgment I consider a single and narrow point. But it is of importance:
Should the extradition appeal proceedings be delayed pending a CG decision by the SCA under the NRM?
- This has been the exclusive focus of argument before me. The application is made on the back of previous such applications. In his ruling dated 21 August 2023, the Judge noted the history:
"3. ... In summary:
- on 9 February 2023, DJMC King refused an application to vacate a listing of the extradition hearing on 22 February 2023;
- on 22 February 2023, the extradition hearing was adjourned by DJMC Clews to 9 June 2023;
- on 9 June 2023, the extradition hearing was listed before me, and I refused an application to adjourn, heard evidence and submissions, and adjourned until 7 July 2023 for judgment to be given;
- on 6 July 2023, the case was taken out of the list and adjourned to 27 July when I heard and refused an application that judgment on the substantive issues case should be adjourned indefinitely.
4. These applications were all made by the requested person on the basis that he is a victim of modern slavery in Latvia and there was, and is, extant consideration in the UK of his circumstances in Latvia by the Single Competent Authority, under the National Referral Mechanism. It was submitted by Mr Seifert, on the requested person's behalf, that the extradition hearing (and, later, delivery of judgment on the substantive issues) should be adjourned until the conclusion of that referral."
- Mr Seifert renews the application and I rule on it in this judgment.
- The SCA made a positive reasonable grounds RG decision on 2 August 2023. The decision states:
"We have assessed this NRM referral and have decided there are Reasonable Grounds to believe it is a case of modern slavery (human trafficking and / or slavery, servitude or forced or compulsory labour)."
- The nature of the decision is necessarily "I suspect but cannot prove". However, the next stage in the process under the NRM remains outstanding: the CG decision. That is, a decision about whether the applicant is or is not a victim of slavery, but now made to a higher balance of probabilities standard. At the point of the hearing before me, it has been 18 months since the RG decision without an answer to the CG question.
- Applicant. The applicant submits that it would be "plainly prejudicial" to SLP if further decisions, and in particular about permission and substantive merits of the extradition appeal, were made "without the full evidence". That evidence includes the CG decision of the SCA under the NRM. The question of whether the applicant is or is not a victim of slavery is vital to an understanding and determination of the extradition proceedings to avoid returning SLP to Latvia and exposing him to the risk exploitation and slavery.
- Respondent. The respondent submits that the NRM process is paper-based. The CG decision is therefore of "limited assistance" to the decision the court has to make and cannot and should not "displace" the court's function. Further delay is neither necessary nor proportionate, especially since the amount of further delay is "unascertainable" and "potentially lengthy". The appeal proceedings should be concluded irrespective of whether a CG decision is provided by listed date for the rolled-up hearing.
Brief facts
- The applicant is 47 years old and hails from the Latvian Roma community. He states that he became involved in an organised crime gang in Latvia and became a target of the gang when he incurred a debt he could not repay. He began working for the illicit organisation, which he describes as the "Russian Mafia". He made deliveries for the gang, stating that he did not know the contents of the packages he was delivering. He was arrested by the Latvian police and after two months in custody was granted bail on condition he did not leave Latvia. After what he said were further threats, he left Latvia in October 2021 and came to the United Kingdom, where his mother lives.
- A Part 1 arrest warrant was issued on 19 October 2022. It was certified by the National Crime Agency on 21 October 2022. Relevant details of the most serious offence detailed in the warrant, suitably redacted to maintain the applicant's anonymity, are:
|
Description of offence |
Unauthorised manufacture, acquisition, storage, transportation and forwarding of narcotic and psychotropic substances for the purpose of disposal and unauthorised disposal
(Offence involving large amounts of narcotic or psychotropic substances) |
|
Penal
provision |
Section 253(3) of the Criminal Law |
|
Maximum
sentence |
Liberty deprivation for 5 and up to 15 years |
|
Particulars of alleged conduct |
"[SLP], in circumstances, place, time and manner not exactly established during the pre-trial investigation, but no later than before 10 March 2021, illegally acquired in large amount with resale purpose 105,2953 g of a mixture of substances that contains the narcotic substance carfentanil in any amount (group of substances "Acetylfentanyls").
On 10 March 2021 at about 13.20 o'clock, [SLP], in order to implement his criminal intent to resale the narcotic substance illegally, for the purpose of self- enrichment, in Riga at XXXXX, illegally, in large amount, resold 2,5771 g of the mixture of substances that contains the narcotic substance ... to a person engaged into a special sting investigation operation for 150 EUR, after that he was detained.
Another part of the mixture of substances that contains the narcotic substance – carfentanil ..., namely, 102,7182 g, that shall be regarded as large amount, [SLP] with resale purpose was illegally storing in his place of residence in Riga, at XXXXXX until 10 March 2021, 14.00-15.50 o'clock, when the abovementioned prohibited substance was found and seized during an authorised search ...." |
- There are further allegations of cannabis manufacture and trafficking and laundering the proceeds of crime.
- On 31 October 2022, SLP was arrested in the United Kingdom and appeared before the Westminster Magistrates' Court on 1 November. He was granted conditional bail and released from remand on 12 December 2022. Following an initial negative RG decision on 10 March 2022, he received a positive RG decision on 2 August 2022. The court below ordered his extradition on 21 August 2022 and the applicant filed his notice of appeal the next day.
- He says that he fears being killed if returned to prison in Latvia. While the applicant has no convictions in the United Kingdom, he has a conviction in Latvia from 2013 when he received a sentence of 5 years and 6 months for drug trafficking. The Latvian judicial authority provided further evidence that the drugs seized had been tested and verified by expert examination.
Legal framework
- The starting-point is the European Convention on Human Rights ("ECHR"). Article 4 ECHR provides:
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour."
- The Council of Europe Convention on Action against Trafficking in Human Beings ("ECAT") was adopted by the Committee of Ministers of the Council of Europe on 3 May 2005. It was ratified by the United Kingdom on 17 December 2008 and came into force on 1 April 2009. Article 4(a) defines "human trafficking" as:
"the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."
- In response to its international treaty obligations, the United Kingdom established the NRM. First responders, such as police officers or social workers, who suspect that a person may be a victim of trafficking refer the case to the Home Office, as the SCA under the Convention, for investigation. Officials first decide whether there are reasonable grounds to believe that the person may be a victim. A "reasonable grounds" ("RG") decision should be reached by the SCA within a target of 5 days, the standard for such a determination being "I suspect but cannot prove". After the RG decision, the person is granted a 30-day "recovery and reflection period". The aim is for the third stage, the CG decision, to be provided within that 30-day period. The conclusive decision is made on the balance of probabilities.
- In Polish Judicial Authority v Celinski & Ors. [2015] EWHC 1275 (Admin) ("Celinski"), the Divisional Court considered the impact on extradition proceedings of ECAT and the European Union Trafficking Directive on preventing and combatting trafficking in human beings and protecting its victims (Directive 2011/36/EU). The court also reviewed the nature and quality of CG decisions. Lord Thomas CJ in delivering the judgment of the court, explained at paras 51-52:
51 "In December 2008, the UK ratified the Council of Europe Convention on Action against Trafficking; it came into force on 1 April 2009; effect is given to several of its provisions by the Modern Slavery Act 2015. The UK has also opted into the EU Trafficking Directive: Parliament and Council Directive 2011/36/EU of 5 April 2015 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework decision 2002/629/JHA (OJ 2011 L101, p 1). Neither the Convention nor the Directive provides any bar to extradition. The decision of the competent authority that a person has been trafficked is not in any way binding on a district judge.
52 A district judge, having heard the evidence, must therefore himself determine the issue as to whether the requested person has been trafficked, having been assisted by the Crown Prosecution Service and the UKHTC by provision of the relevant evidence in their possession, subject to principles of public interest immunity from disclosure. Judges should not normally adjourn hearings for a referral to the UK competent authority, nor defer the effect of their extradition decisions pending a decision on a referral by the UK competent authority."
- In Koceku v Albania [2024] EWHC 1028 (Admin), Julian Knowles J considered the value of a CG decision. In that case, the content of the decision was confined to "it is accepted that you were a victim of modern slavery in the UK during approximately 2019" (para 29). Julian Knowles J said at para 43:
"I agree with [counsel] in relation to the Conclusive Grounds decision in the Appellant's favour. However such decisions are properly to be regarded (and I set out the case law earlier), the decision in this case is simply too brief to be of any assistance. It is the opinion of a civil servant expressed in one line, which even despite its brevity appears to be inconsistent with the case which the Appellant advanced before the district judge. It is certainly nowhere near decisive, and I decline to admit it. I cannot readily see how what happened (or did not happen) in the UK after his arrival here can have any bearing on the question of whether extradition would be Article 8 disproportionate."
- It is clear from his words "However such decisions are properly to be regarded" that Julian Knowles J did not decide that CG decisions are inherently inadmissible or can never be admitted in extradition proceedings. Further, his decision was highly fact-sensitive. Therefore, the decision has limited relevance to the facts of this case.
Discussion
- I divide the court's discussion into two chief parts (A) statutory interpretation (B) general submissions. However, I preface the treatment with my summary of the previous decisions about the status and effect of decisions by the SCA under the NRM:
(1) A conclusive grounds decision is made under the National Referral Mechanism by an official in the Single Competent Authority, which is a part of the Home Office;
(2) The decision is a paper-based decision made on a balance of probabilities;
(3) It answers the question whether the official can determine to the civil standard whether the person is or is not a victim of trafficking or slavery;
(4) The decision does not bind a court in any way;
(5) A court will decide for itself whether the person is or is not a victim of trafficking or slavery and may decide differently to the SCA official;
(6) The court should not normally delay extradition proceedings to await referrals to the NRM or decisions by the SCA under it;
(7) Normally does not mean never: each adjournment decision is fact-specific and evidence-based;
(8) However, the policy of the European Framework Decision, as now substantially reflected in the Trade and Cooperation Agreement, is for extradition proceedings to be summary and streamlined and delay must have clear justification (see, for example, stipulated time limits in article 17 of the Framework);
(9) Neither ECAT nor the European Union Trafficking Directive (Parliament and Council Directive 2011/36/EU) provide any bar to extradition.
- In oral argument before this court, consistent with his initial trial skeleton argument, the applicant submitted (1) NABA 2022 "postdates" Celinski; (2) "the law is not clear about the operation of section 61 and whether it includes extradition". The implication being that if extradition is implicitly included in section 61, it may provide at least a temporary bar to extradition. It is for this reason, and to clarify the situation, that the court directed further written submissions confined to this question.
- Section 61 provides:
"61 Identified potential victims of slavery or human trafficking: recovery period
61.—Identified potential victims of slavery or human trafficking: recovery period
(1) This section applies to a person (an "identified potential victim") if—
(a) a decision is made by a competent authority that there are reasonable grounds to believe that the person is a victim of slavery or human trafficking (a "positive reasonable grounds decision"), and
(b) that decision is not a further RG decision (as to which, see section 62).
(2) Subject to section 63(2), the identified potential victim may not be removed from, or required to leave, the United Kingdom during the recovery period.
(3) The "recovery period", in relation to an identified potential victim, is the period—
a. beginning with the day on which the positive reasonable grounds decision is made, and
b. ending with whichever of the following is the later—
(i) the day on which the conclusive grounds decision is made in relation to the identified potential victim;
(ii) the end of the period of 30 days beginning with the day mentioned in paragraph (a)."
- In the skeleton argument filed on behalf of the applicant, it is submitted (para 33(ii)) that the Judge below erred because he "disregarded" the ordinary meaning of the English language in misconstruing section 61. Further, "He failed to provide any explanation for the fact that 'removal' and 'requirement to leave' would not concern orders for extradition even when the ordinary meaning of these words plainly means that the individuals are removed or required to leave the UK."
- The respondent submits that NABA 2022 has nothing to do with extradition whatsoever. Ultimately, in the directed further written submissions, the applicant conceded that section 61 does not include extradition, despite the point having been previously advanced. The issue having been raised and argued, and so no doubt remains, I explain why this must be the true construction.
Analysis: section 61
- I subdivide my analysis of the meaning of section 61 into six chief elements. This necessitates an exercise in statutory interpretation, using such interpretive tools - and there are many - as are relevant to the specific task.
- First, NABA 2022 received Royal Assent on 28 April 2022 and therefore does postdate Celinski.
- Second, I turn to the first available tool: the long title of the statute. It is now beyond doubt that the long title is a legitimate aid to statutory interpretation (see among many sources, R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin) at para 93, a very strong three-judge Divisional Court, judgment delivered by Lord Thomas CJ). Indeed, Lord Simon said in his speech in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] AC 591 at 647 that the long title "is the plainest of all guides to the general objectives of a statute". The long title of NABA 2022 is, as relevant:
"An Act to make provision about nationality, asylum and immigration; to make provision about victims of slavery or human trafficking ...
- It will immediately be noted that there is no mention of extradition. This is consistent with the text of the rest of the statute which does not openly mention or explicitly deal with extradition.
- Third, the statute is accompanied by Explanatory Notes ("the Notes"). The interpretive value of such notes was considered in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, such texts then being a recent innovation. Lord Steyn's speech makes clear that such notes are potentially a valuable tool for interpreting a statute:
"5. ... Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like. After all, the connection of Explanatory Notes with the shape of the proposed legislation is closer than pre-parliamentary aids which in principle are already treated as admissible: see Cross, Statutory Interpretation, 3rd ed (1995), pp 160-161."
- Indeed, in R v Montila & Ors. [2004] UKHL 50, the court said at para 35 that "It has become common practice for their Lordships to ask to be shown the Explanatory Notes when issues are raised about the meaning of words used in an enactment." However, such notes lack binding effect and are less valuable than other sources of interpretation such as the long title of the statute. Nevertheless, in the section on "Overview of the Act", the Notes state:
"1. The Nationality and Borders Act 2022 has three main objectives:
· To increase the fairness of the system to better protect and support those in need of asylum;
· To deter illegal entry into the United Kingdom, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger; and
· To remove more easily those with no right to be in the United Kingdom."
- The "Policy Background" explains:
"2. The United Kingdom's legal immigration system has been reformed by the ending of free movement and the introduction of a new points-based immigration system. This Act is intended to tackle illegal migration, reform the asylum system and control the UK borders.
3. Under new proposals, how someone enters the United Kingdom will impact on how a claim progresses through the system and the type of status granted in the UK if that claim is successful. The asylum framework will be streamlined, ensuring cases and appeals are dealt with more effectively, while improving the Home Office's ability to remove those with no right to remain, including Foreign National Offenders (FNOs). At the same time, the Government's aim is to strengthen safe and legal routes, offering protection to refugees fleeing persecution, and fixing historical anomalies in British nationality law."
- The section on "Supporting Victims of Modern Slavery" outlines the ECAT and the system of RG and CG decisions:
"32 The Government remains committed to ensuring the police and the courts have the necessary powers to bring perpetrators of modern slavery to justice, while giving victims the support they need to rebuild their lives. The United Kingdom is a signatory of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), which sets out signatory states' international obligations to identify and support victims of modern slavery.
33 When it is deemed that there are Reasonable Grounds (RG) to believe an individual is a victim of modern slavery, that individual is protected from removal (unless an exemption applies) for the 30-day recovery period or until they have received a Conclusive Grounds (CG) decision regarding whether they are a confirmed victim of modern slavery, whichever is longer. While individuals are protected from removal, they are also entitled to support in line with their needs."
- Interestingly, it states:
"34 Most potential victims of modern slavery receive a positive decision. In 2020, the Single Competent Authority (SCA) made 10,608 reasonable grounds decisions, of which 92% (9,765) were positive. They also made 3,454 conclusive grounds decisions, of which 89% (3,084) were positive.
...
36 The Government wants to ensure that victims are identified and provided with support, and that any gaps in the system which allow for the NRM to be misused are addressed. This will avoid resources being diverted away from victims who need support and unnecessary impacts on removal actions. In 2021, the NRM system is estimated to have cost at least £80m."
- The Notes then deal with certain concerns about the misuse of the NRM to obstruct immigration enforcement:
"37 The measures outlined in this Act seek to ensure victims are identified as quickly as possible, while enabling decision makers to distinguish more effectively between genuine and non-genuine accounts of modern slavery and enabling the removal of serious criminals and people who pose a threat to United Kingdom national security.
38 There are concerns about the potential for a referral to the National Referral Mechanism to be used to frustrate Immigration Enforcement action or gain access to support inappropriately."
- Having examined statistics about Foreign National Offenders, and how they are less likely to receive a positive RG decision, the Notes state:
"42 This raises concerns that some referrals are being made late in the process to frustrate immigration action and that legitimate referrals are not being made in a timely way.
43 The modern slavery measures in this Act aims to set out the rights and entitlements of possible victims and to bring clarity to victims and decision-makers as to how decisions should be taken to ensure individuals are identified and supported as quickly as possible."
- The Notes then turn to "Enforced Removals". They state:
"58 Enforced returns refer to instances where the Home Office makes arrangements to remove immigration offenders or persons subject to a deportation order who do not intend to depart voluntarily from the United Kingdom. Voluntary return refers to any non-enforced departure of an individual with no right to remain."
- While there is a section entitled "Modern Slavery" between paras 72-77, there is no mention of the issue of removal or the operation of section 61. Therefore, having considered the key sections of the explanatory notes of NABA 2022, the word "extradition" is not mentioned once.
- Fourth, it is clear from the Notes that "removals" refer to those in breach of immigration rules and persons subject to a deportation order. That leaves the term "required to leave". For the extradition-interpretation to survive, the term must amount to extradition. It difficult to understand why if that was the legislative intention this phrase is used instead of simply "extradited", as in a person "cannot be extradited from the United Kingdom within the recovery period." That the term is not a reference to extradition but immigration enforcement is clear from the fact that the phrase 'removed from, or required to leave' appears in immigration legislation such as section 1 of the Asylum and Immigration Appeals Act 1993 and sections 78A(5) and 120 of the Nationality, Immigration and Asylum Act 2002. Once more, there is nothing to suggest this is a reference to extradition. It is noteworthy that article 13(1) of ECAT provides that during the period of recovery and reflection, "it shall not be possible to enforce any expulsion order against him or her." The question arises whether an expulsion order is the same as an extradition order. It is clear that although the European Court of Human Rights has not distinguished between the two categories in the engagement of rights under the ECHR, they are nevertheless distinct concepts. This was explained by Lord Bingham in R (Ullah) v Special Adjudicator [2004] UKHL 26 at para 33:
"Extradition and expulsion
The second point related to the distinction between extradition and expulsion. Undoubtedly the purpose of the two procedures is different. The procedures serve different public interests. But in the context of the possible engagement of fundamental rights under the ECHR the Strasbourg court has not in its case law drawn a distinction between cases in the two categories: see Cruz Varas v Sweden (1991) 14 EHRR 1, 34, para 70. For my part I would also not do so."
- Fifth, further support for the proposition that the statute does not deal with extradition is derived from a consideration of the other statues NABA 2022 has amended. These include the Immigration Act 1971, the British Nationality Act 1981, the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Act 2002, the Criminal Justice Act 2003, the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the Legal Aid, Sentencing and Punishment of Offenders Act 2021, the Modern Slavery Act 2015 and the Immigration Act 2016. Tellingly, to my mind, NABA 2022 does not at any point amend the Extradition Act 2003 despite amending many other statutes.
- Sixth, the applicant's previous written and oral submissions were that the "ordinary meaning" of the wording of section 61 "plainly" were a reference to extradition. It is certainly the case that the court should consider the ordinary and natural meaning of the words in a statute. But this is subject to a vital qualification. A court interpreting a statute does not simply assemble a string of dictionary definitions. The meaning of a statute is not necessarily the aggregate of the dictionary meaning of words. While the interpretation of a statute is not the same as the interpretation of a contract, and with that proviso firmly in mind, it is interesting to compare the approach of contextual statutory interpretation with the approach endorsed in the much-cited speech of Lord Hoffmann about the interpretation of contracts in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896:
"The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean."
- More recently, the Supreme Court returned to the question of interpretation in Wood v Capita Insurance Services Ltd [2017] AC 1173. In Lord Hodge's speech at para 10, the approach is set out:
"The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole ..."
- Ultimately, as Lord Hodge succinctly encapsulates the idea at para 13, "Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation." Turning back to statutory interpretation, the Supreme Court recently considered the proper approach in Kostal UK Ltd v Dunkley [2021] UKSC 47. In their speech, Lady Arden and Lord Burrows:
"The modern approach to statutory interpretation requires the courts to ascertain the meaning of the words in a statute in the light of their context and purpose."
- This follows what Lord Steyn said in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 at para 5:
"The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it."
- The proper approach receives an alternative but equivalent formulation by the Court of Appeal in Secretary of State for Work and Pensions v Goulding [2019] EWCA Civ 839 at para 9:
"...legislation should be read in its legal, social and historical context. The legislature intends the language of a statute, or statutory instrument, to be given an informed, rather than a literal meaning."
- Therefore, the meaning of a statute is ascertained by interpreting the words used in the context of the statute as a whole and having regard to the policy and objects of the statute. This is where the applicant's previous literalist interpretation of the terms in section 61 must fail. It is insensitive to policy context of the NABA 2022 which is clear from the long title, its carefully drafted and comprehensive Explanatory Notes and the thrust and essence of the other provisions within the statute, and particularly those immediately neighbouring section 61. None of this begins to suggest that section 61 creates a prohibition against extradition pending conclusion of the NRM assessment process or any part of it.
Conclusion: section 61
- The respondent made extensive submissions about section 61, and invited the court, if necessary, to adopt a Pepper v Hart analysis and examine extracts from Hansard (Pepper v Hart [1993] AC 593). It is a substantial and impressive treatment. Respectfully, I find no need to engage with the ministerial pronouncements of the Rt Hon Priti Patel MP when Secretary of State for the Home Department. This is because the previous points convince me that the applicant's erstwhile case on NABA 2022 is misconceived. Indeed, the respondent ultimately did not rely on Hansard and Mr Seifert submitted that Hansard shed "no significant light" on the question.
- Overall, I judge that section 61 of the NABA 2022 has nothing to do with extradition. I make it clear that this is not simply because of the very recently uncontested position of the parties, but by reason of the court's independent legal assessment.
- It is now necessary to consider three aspects of the general submissions advanced by the applicant.
- First, the applicant submits that to continue with proceedings in the absence of the CG decision is to continue "on the basis of ignorance". Using the applicant's terminology for a moment, it is important to have regard to what is being "ignored". I am prepared to assume for the sake of this application that it is likely that the CG decision will be positive in favour of the applicant. It appears probabilistically likely, given the statistics outlined in the Explanatory Notes. However, that only takes the applicant so far. Even a positive CG decision remains the non-binding paper-based decision of an official seated within the Home Office under the NRM. A judge in extradition proceedings is required to decide for herself or himself whether the requested person is or is not a victim of trafficking or slavery.
- I recognise that in R v Brecani [2021] EWCA Crim 731, the Court of Appeal held that the opinion of an SCA official ("junior civil servants") in a CG decision is inadmissible in a criminal trial. At para 54, Lord Burnett CJ said:
"... we do not consider that case workers in the Competent Authority are experts in human trafficking or modern slavery (whether generally or in respect of specified countries) and for that fundamental reason cannot give opinion evidence in a trial on the question whether an individual was trafficked or exploited. It is not sufficient to assume that because administrators are likely to gain experience in the type of decision-making they routinely undertake that, simply by virtue of that fact, they can be treated as experts in criminal proceedings."
- It must be recognised that although both the Criminal Procedure Rules and the Criminal Practice Direction are applicable to extradition proceedings, the proceedings remain a special kind of criminal process. The conventional rules of evidence in criminal trials do not apply with the usual rigour (R (B) v Westminster Magistrates' Court [2015] AC 1195). I do not need to decide whether the CG decision in this case is admissible in the extradition proceedings as there is no decision. I have considered the decision of Murray J in SA v Buftea Court, Romania [2024] EWHC 2950 (Admin). There a CG decision was ruled inadmissible as fresh evidence. But it is clear that the decision is acutely fact-sensitive. It is inappropriate to pre-empt a future ruling in the absence of any indication of the content of the decision for which admissibility may be sought. Therefore, the applicant's submission that the CG decision "may be full and informative" meets the immediate obstacle that it may not be. Indeed, it may be negative. The applicant's projection is an act of speculation; it little assists him in concrete terms.
- Second, it is submitted that there is "no other prejudice to Latvia" by delaying proceedings until the CG decision is provided. It seems to me that this submission fails to engage with the policy and objects of the European Framework Decision now reflected by the TCA, which was modelled on the Framework. Extradition was moved from a diplomatic to a judicial process with a view to streamlining it and effecting summary and expeditious determination of extradition requests. Accordingly, there is no appeal to the Court of Appeal from decisions of the High Court, with a limited remedy in the Supreme Court on points of general public importance. There is a strong policy imperative to return people who are fugitives from justice. As Lady Hale said in her speech in H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338 at para 8, proposition 4:
"There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back."
- Further, the timely resolution of the request is broadly in the interests of the requested person. Delay, unless it is properly justified, cuts across the clear intentions of the extradition arrangements the United Kingdom subscribes to as state party. This lies behind the strong guidance of the Divisional Court in Celinski that extradition proceedings should "not normally" be adjourned to await referral to the NRM or an SCA's decision under it. This strong steer is supported by the fact that a CG decision is in any event is "in no way" binding on a court. This was explained by Lady Hale in MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 ("MS (Pakistan)") at paras 11-13:
"The principal issue
11 The Secretary of State now concedes that ""when determining an appeal that removal would breach rights protected by the ECHR, the tribunal is required to determine the relevant factual issues for itself on the basis of the evidence before it, albeit giving proper consideration and weight to any previous decision of the defendant authority (para 65 of the printed case). Hence it is now common ground that the tribunal is in no way bound by the decision reached under the NRM, nor does it have to look for public law reasons why that decision was flawed. This is an important matter. As the AIRE Centre and ECPAT UK point out, had the tribunal been bound by such decisions, it could have had a profoundly chilling effect upon the willingness of victims to engage with the NRM mechanism for fear that it would prejudice their prospects of a successful immigration appeal.
12 There are several reasons why the tribunal cannot be bound by the NRM decision. First, its jurisdiction is to hear appeals against the immigration decisions of officials: 2002 Act, section 82(1). It does not have jurisdiction judicially to review the decisions of the competent authority under the NRM. An appeal is intrinsically different from a judicial review.
13 Second, those appeals are clearly intended to involve the hearing of evidence and the making of factual findings on relevant matters in dispute. This is made clear both by the 2002 Act and the Rules. Section 85(4) provided: "On an appeal under section 82(1) . . . against a decision the tribunal may consider any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) in rules 14 and 15, and the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) in rules 15 and 16, make detailed provision for the calling of witnesses and the production of documents."
- I reject the applicant's submission that "the broad principles of law" within MS (Pakistan) in any way support delaying extradition proceedings pending the resolution of the NRM process. The Supreme Court's reasoning was that the investigation in the United Kingdom of the trafficking that MS was victim of could not be conducted effectively if he were deported to Pakistan. That is a different situation to this case. As Lady Hale said at para 35:
"35. However, it is clear that there has not yet been an effective investigation of the breach of article 4. The police took no further action after passing him on to the social services department. It is not the task of the NRM to investigate possible criminal offences, although the competent authority may notify the police if it considers that offences have been committed: R (Hoang) v Secretary of State for the Home Department [2016] Imm AR 1272. The authorities are under a positive obligation to rectify that failure. And it is clear that an effective investigation cannot take place if MS is removed to Pakistan: the UT rightly held that "it is inconceivable that an effective police investigation and any ensuing prosecution could be conducted without the full assistance and co-operation of MS. Realistically this will not be feasible if he is removed to Pakistan" (para 64)."
- Third, the claim of prejudice to the applicant must be viewed in an evidential context. There is no evidence before the court that Latvia as a European Union member state is unwilling or unable to comply with its international law obligations to protect the applicant from being re-trafficked or made a victim of slavery. I have regard to the well-known case of R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38 ("Bagdanavicius") as cited in Olga C v The Prosecutor's General Office of the Republic of Latvia [2016] EWHC 2211 (Admin) ("Olga C"), which has been provided to the court. In Lord Brown's speech in Bagdanavicius, it is emphasised that there is a strong but rebuttable presumption that members states of the Council of Europe will comply with their obligations under article 4 ECHR. Further, where the risk alleged comes from "non-state actors" - and the "Russian Mafia" would fit within that category - the requested person has the burden of proving that the requesting state is either unable or unwilling to act to provide "reasonable protection" to the requested person.
- This is relevant to the applicant's submission that the allegations of being trafficked made by the applicant are "directly concerned with the extradition request". There is no evidence placed before the court to suggest that Latvia is unwilling or unable to meet its obligations. That is not to say that issues have not been raised about the effectiveness of Latvia's combatting of human trafficking. Indeed, Lord Burnett CJ said in Olga C at para 10:
"10. There is, of course, no suggestion that Latvia is itself engaged in human trafficking and it is plain that Latvia has in place appropriate laws which criminalise such activity. Furthermore, although various international reports placed before us make suggestions for improvement in the way in which Latvia can tackle human trafficking they fall far short of establishing the proposition that Latvia is failing to abide by its international obligations under the Anti-trafficking Convention or article 4 ECHR (The Group of Experts on Action against Trafficking in Human Beings, 31 January 2013; Europol Situation Report, February 2016; US State Department report on Trafficking in People, 2015). A direct appeal to article 4 ECHR would require a requested person to rebut by evidence the strong presumption that the country concerned would abide by its international obligations under the ECHR: Krolik v Poland [2012] EWHC 2357 (Admin); [2013] 1 WLR 490. Alternatively, and by analogy with cases under article 3 when the risk of ill- treatment etc. comes from non-state actors, a requested person may, at least in theory, be able to show by reference to the circumstances of his case that the requesting state cannot provide sufficient protection: see the discussion in R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38; [2005] 2 AC 668."
- It may be that evidence will be placed before the court in future proceedings. There is none before me for the purposes of this application.
Conclusion
- The applicant's submissions, individually and collectively, provide no persuasive case for delaying the rolled-up hearing.
Disposal
- The application to adjourn the rolled-up hearing listed for 8 April 2025 is dismissed.
