CO/8510/2007 
Neutral Citation Number: [2007] EWHC 2645 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 25 October 2007
 
B e f o r e:

LORD JUSTICE RICHARDS
MR JUSTICE GIBBS 
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Between: 
ZIELINSKI 
Claimant 
v 

DISTRICT COURT LEGNICA 
(Polish Judicial Authority) 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Ben Cooper (instructed by Sonn MacMillan Walker of London) appeared on behalf of the Claimant
Mr Mark Weekes (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE RICHARDS:  This is an appeal under Section 26 of the Extradition Act 2003 against the decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court on 21 September 2007, to order the extradition of the appellant to Poland.  
2.	The background is that the appellant and his brother were convicted in Poland on 25 June 2004 of two offences of burglary committed in late March or early April 2001.  They were convicted in their absence.  They had both been present at the start of their trial in March 2004 but had not appeared at adjourned hearings in May and June 2004.  Following conviction, they were both sentenced to two years' imprisonment, almost all of which they have yet to serve.  
3.	In the case of the appellant a domestic arrest warrant was issued in February 2006 and a European arrest warrant followed soon afterwards in March 2006.  He was arrested in this country on 6 June 2007.  His arrest was followed by an  extradition hearing in the Magistrates' Court.  At that hearing the district judge heard evidence from the appellant, whose account he described as incredible, and found that the appellant had deliberately absented himself from his trial.  That finding is not challenged on appeal.  The judge also rejected a submission that the appellant's extradition was barred by reason of the passage of time.  That aspect of the decision is challenged on appeal and is the only issue in the appeal.  The judge's adverse findings led to the order for the appellant's extradition.  
4.	It appears that the appellant's brother was dealt with at the same time and was also ordered to be extradited but in his case there has been no appeal. 
5.	Section 11 of the 2003 Act provides that the judge must decide whether the requested person's extradition is barred by reason of the passage of time and must order the person's discharge if he decides that question in the affirmative.  Section 14 applies for the purposes of interpreting that part of Section 11.  Section 14 has itself been amended by the Police and Criminal Justice Act 2006, Schedule 13, and we are told by Mr Weekes, who appears on behalf of the respondent, that the amendment was in force at the material time.  Section 14, as amended, reads:
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have ‑
 (a) committed the extradition offence (where he is accused of its commission), or 
 (b) become unlawfully at large (where he is alleged to have been convicted of it)."
6.	Mr Cooper, who appears on the appellant's behalf, had not taken sufficient account of the amended wording of Section 14 in his written submissions.  He now concedes, however, that this case comes within (b) and that the relevant question concerns the passage of time only since the appellant became unlawfully at large, this being a case where the appellant has been convicted of an offence.  
7.	Mr Cooper further concedes that he cannot rely on the "unjust" limb of the test in Section 14 since, as Lord Diplock made clear in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782, that is directed primarily to risk of prejudice to the accused in the conduct of a trial and in this case the trial has already taken place.  
8.	Mr Cooper places his case on the "oppressive" limb of the test and submits that in all the circumstances it would be oppressive to extradite the appellant by reason of the passage of time since he left Poland, which is in effect the relevant date.  Although focusing, as he must, on the period since the appellant left Poland, Mr Cooper submits that the court should take into account what happened prior to the appellant's departure and, in particular, the fact that for the years between the alleged offences and his leaving Poland he had made himself available for trial and had attended some 15 hearings.  Mr Cooper invites this court to have regard to the delay during that period despite the fact that that passage of time is not relevant under the Section 14 test.  
9.	As to the period since the appellant left Poland, Mr  Cooper points to the fact that some 20 months elapsed before a domestic arrest warrant was issued.  He says that the delay in issuing that warrant, which was rapidly followed by a  European arrest warrant, is unexplained notwithstanding that at the hearing before the district judge the requesting authority was invited to provide an explanation of it.  
10.	Reliance is also placed on the fact that the appellant has now got on with his life.  He has been living openly in this country.  He has been working hard here as a builder and he has been earning money that has enabled him to look after his mother financially.  She lives in Poland and is said to have become dependent on his income. It is submitted that having regard to all the circumstances the appellant's extradition would be oppressive.  
11.	There seem to me to be compelling reasons for rejecting that case.  Since, under Section 14(b), the focus must be on the passage of time since the appellant left Poland, one must be extremely cautious about attaching any weight to what happened prior to his departure.  Nonetheless I am prepared to proceed on the assumption that some regard may be had to it.  It does not, in itself, seem to me to take the appellant's case very far forward, albeit the trial process in Poland appears to have been somewhat more protracted than one would have expected in this country.  
12.	As to the period since he left Poland, the main difficulty that the appellant faces is that he was found by the district judge to have deliberately absented himself from his trial and is therefore properly to be described as a fugitive from justice.  In Kakis, at page 782, Lord Diplock  said:
"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him.  Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making.  Save in the most exceptional circumstances it would be  neither unjust nor oppressive that he should be required to accept them."
Although the main thrust of that passage is towards the question whether it would be unjust to return the accused, it applies equally to the question whether it would be oppressive to return him.  The appellant can properly be regarded here as at least primarily the author of the delay and of the relevant passage of time.  
13.	I am prepared to accept that his being a fugitive from justice is not the end of the matter and that if there were concurrent fault on the part of the requesting authority that could also be taken into account (see Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012.Admin 17.  I also note the point that there is no explanation for the delay between conviction and issue of the arrest warrant in this case.  There is nothing unusual about that.  There is no evidence that the requesting authority was aware of the appellant's location in this jurisdiction until the European arrest warrant was issued.  If the appellant wishes to allege that the authority in some way dragged its feet, the allegation should be properly supported by evidence (see Falanga v Office of State Prosecutor, Novarra, Italy [2007] EWHC 268 (Admin) at para 23).  An unexplained delay is not necessarily to be taken to show fault on the part of the requesting authority (see La Torre v Italy [2007] EWHC 1370 (Admin) at para 37).  In any event, even culpable delay on the part of the state does not necessarily make it oppressive to extradite (see Spanovic v Croatia [2007] EWHC 1170 (Admin) at para 16).  The last two cases to which I have referred also show that it is relevant to consider whether delay has engendered a sense of security in the person sought, but that cannot be so on the facts of the present case.  
14.	Looking at the circumstances as a whole, and even having regard to the period between the date of the commission of the offences and the appellant's departure from Poland, it seems to me that there is nothing that could properly be said to make it oppressive now to extradite the appellant.  The delay has not been excessive.  The reason for much of the delay ‑ and all of the delay that is strictly relevant under Section 14(b) ‑ is the appellant's own conduct in departing from the country.  There cannot, to my mind, be said to be any real case under Sections 11 and 14.  The district judge was entirely correct in rejecting the appellant's submissions on that issue.  
15.	I would therefore dismiss the appeal.
16.	MR JUSTICE GIBBS:  I agree.
17.	LORD JUSTICE RICHARDS:  There are no further orders needed. 
18.	MR WEEKES:  No.