England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		27th March 2007

1. LORD JUSTICE LAWS: This is an appeal brought under Part 1 of the Extradition Act 2003 against a decision of Deputy Senior District Judge Wickham given in the City of Westminster Magistrates Court on 2nd February 2007, by which she ordered the extradition of the appellant to Poland to be dealt with by the District Court of Bialystok in relation to three offences of which he was convicted by that court in his absence on 24th July 2002. Apparently the court's judgment became final a week later on 31st July.
2. There is no dispute but that the three offences are extradition offences within the material provisions of the 2003 Act. They are (1) handling stolen goods, namely stolen motor vehicle parts; (2) receiving quantities of alcohol on which no duty had been paid; and (3) conspiring to produce spirit at an illicit still and, as I understand it, keeping equipment for that purpose. On 1st November 2006, he was arrested at the Bishopsgate Police Station under a European arrest warrant which had been issued by the Polish judicial authority on 10th June 2005. The warrant had been certified pursuant to Part 1 of the 2003 Act by SOCA (that is the Serious Organised Crime Agency) on 17th August 2006. The appellant was brought before District Judge Evans of the City of Westminster Magistrates Court on 2nd November 2006 and an extradition hearing under the Act was fixed for 16th November 2006. The extradition hearing was conducted by District Judge Wickham who, as I have said, gave judgment on 2nd February 2007.
3. The appellant takes issue with three findings made by the District Judge rejecting arguments which had been advanced before her on his behalf. The first such finding was that it would not be unjust or oppressive to extradite the appellant by reason of the passage of time; see section 14 of the 2003 Act. The second such finding was that the appellant had deliberately absented himself from the court proceedings in Poland; see section 20. The third such finding was that the appellant's extradition would not violate his rights under the European Convention on Human Rights, specifically Article 8, which of course guarantees the right of respect to private and family life; see section 21 of the 2003 Act. On the facts of the case, these three points really run into each other.
4. The offences were alleged to have been committed in 1998 or 1999. Each of the three charges named a period ending on 3rd March 1999. The appellant was arrested in Poland in October 1999 and charged with the offences. There was at least one court appearance but at some stage, seemingly in January 2001, the appellant left Poland for England with the woman with whom he was then involved in a relationship. He returned to Poland, however, in or about February 2002, allegedly for a holiday. On 11th April 2002 he was arrested for having failed to appear in court at Bialystok on these charges, there having been several hearings fixed in 2001. He was at first held in custody but released on bail on 15th May 2002, being required to return to court for a further hearing on 10th June 2002. He went back to England and rejoined his girlfriend but returned to Poland for the hearing on 10th June. Because of the non-attendance of a witness, the case was then further adjourned, initially, it seems, to 18th July 2002. The District Judge said this:

"What happened on the 10th June is hugely significant. The defendant indicated that he would not return to court and that the court could proceed in his absence. He was not legally represented. There seems to be a factual dispute as to whether he told the court that he was going to England. For the purposes of this judgment I am prepared to find that he did. However, he did not provide a UK address and the address that the court may have had for the purpose of the record was that of Halina Pietraszsko [I interpolate, that lady was the girlfriend] and she was in the UK or that of his mother with whom his relationship was strained. Neither address would have provided a forwarding opportunity. The Defendant returned to the UK. He has not returned to Poland since."

The court at Bialystok convened on 18th July 2002 but adjourned again until 24th July 2002 when, as I have said, judgment was given against the appellant.

5. The appellant gave the court, or at any rate the Polish authorities were in possession of, a Polish address for correspondence; but he gave no address in England. The court also had details of his family home in Poland at a different address, from which a document sent by a Polish authority was returned in I think September 2002. The authorities did not apparently communicate with the correspondence address.
6. The appellant's circumstances from the autumn of 2002 onwards, which are relied on in particular in connection with the third issue (Article 8 of the European Convention) are described by the District Judge as follows:

"In the Autumn of 2002, the defendant and Halina Pietraszko separated permanently. The defendant stayed on in the UK and with appropriate permissions has established a successful building business. He is an industrious man and the references support that. He converted to Islam and in May 2004 married Mrs Rukhsana Kahn, a divorcee, whom he had known for some 17 months. She is a UK national and has a daughter from her first marriage and the defendant has taken responsibility for this girl. The couple have a 1 year old son who has been given the same surname as his half sister in order to preserve the sense of a wholly unified family. Apart from being a practising Muslim, the defendant has embraced the culture and traditions of the community who are from or whose origins are those of Pakistan. He has strong family ties with his wife's family and as parents Mr and Mrs Prus are anxious to be with their children at all times. Mr Prus is well-qualified as a financial consultant but has not worked since the birth of her son."

I should also note that in November 2003 the appellant obtained (and did so it seems perfectly openly) a new passport from the Polish consulate in London.

7. I turn to the first issue: passage of time. The question for the court was whether it would be unjust or oppressive to extradite the appellant by reason of the passage of time. Some of the authorities are concerned with the possibility of prejudice to a fair trial because of delay; but it does not arise here: this is a conviction case, not an accusation case. The appellant says: (a) the Polish authorities made little or no attempt to communicate the July 2002 judgment to him; (b) he was not evading justice in England; (c) he has been lulled into a false sense of security; (d) his having established a settled life here also makes it unjust or oppressive to extradite him.
8. So it is submitted in the skeleton. Mr Young, this afternoon, has laid particular emphasis on the overall submission that it was really for the Polish authorities to get in touch with the appellant rather than for the appellant to get in touch with the Polish authorities. The District Judge referred to authority, starting with the leading case of Kakis v Cyprus [1978] 1 WLR 772. She said:

"Applying the Kakis test, '"unjust" is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" to hardship to the accused resulting to changes in his circumstances that have occurred during the period taken into consideration'; the 'unjust' argument has little application as the defendant was present during the course of the trial save for those last 2 dates when he chose not to attend. It is acknowledged that between 2003 and 2006 significant events have occurred in the life of Mariusz Prus and that the communication between the Polish agencies was protracted between 2003 and 2004 but the delay has been caused by the defendant removing himself from Poland in June 2002. In my judgment the defendant fails the Kakis test."

9. In my judgment, the District Judge was right on this issue. The appellant left Poland well knowing that the proceedings were ongoing and that there would be a further hearing or hearings. He had knowingly signed a document, albeit some time before, which indicated an obligation to notify the court of his address in England. I do not think he is, in the circumstances, assisted by having given a Polish correspondence address. The Magistrates' Court clerk noted a comment by the District Judge, made in the course of the hearing:

"On face of it, [the defendant] clearly acknowledged what was going on. Cannot assert that he knew nothing of proceedings."

I see no reason to disagree with that. He has not been lulled into a false sense of security by anything done by the Polish authorities. If he entertained such a sense, it is because he has, I fear, kept his head in the sand.

10. The second issue: whether he has deliberately absented himself. It is common ground that this does not necessarily involve proof that the appellant was specifically intending to evade justice. In Wade v Deputy Public Prosecutor of the Court of Appeal of Montpellier [2006] EWHC (Admin) 1902, May LJ said:

"In my judgment, deliberately absenting yourself does not necessarily have overtones of deliberately evading justice but the word 'deliberately' does involve inquiring into the person's state of mind and it connotes a decision taken in the light of all material information."

11. The appellant seeks to make much of the fact that the appellant did not know of the forthcoming 24th July 2002 hearing when he left Poland after the hearing of 10th June 2002, nor indeed did he know of the judgment given on that day at any stage until after the extradition proceedings were initiated. However, he knew, as I have already said, that there would be another or further hearings and that the proceedings were not concluded. He chose, knowingly and deliberately, not to attend those hearings, whenever they should be, and so notified the court. It may very well be that he was not strictly required to attend any future hearing and was, as it has been put, given the option whether or not he should be dealt with in his absence. But as I say, he choose to absent himself. In that sense it seems to me simply beyond argument that he deliberately absented himself from the court proceedings. In those circumstances, though the District Judge does not reason it out fully, in my view she was again wholly entitled to come to the conclusion that she did.
12. That leaves the last issue: Article 8. The District Judge accepted that if the appellant were extradited, his wife would find it "almost impossible" to move to Poland with his children. The appellant's extradition, however, would be in pursuit of a legitimate aim: that is the prevention of disorder and crime, and so the question was whether extradition would on the facts be a proportionate response. Mr Young accepts as he must that in the context of the administration of the Extradition Act a good Article 8 case to avoid extradition must show very strong circumstances indeed. In this case the District Judge expressed herself as follows:

"... it cannot be argued that handling stolen goods is not a serious offence and thus the Launder [I interpolate, that is a reference to Launder v UK [1997]] criteria that 'it is only in exceptional circumstances that the extradition of a person to face trial on charges of serious offences committed in the requesting state would be held to be an unjustified or disproportionate interference' etc apply.

At the first hearing the defendant was clearly unwell physically and emotionally though more composed at the second. This court is not unsympathetic to his plight but he turned his back on criminal proceedings involving himself in Bialystok and has created some of the delay in their resumption. The fact that he has used that period of delay between 2002 and 2006 to good use is not an exceptional circumstance. Thus I find that an order for his extradition is not disproportionate or unjustified and is compatible with his Convention rights and I therefore make the order."

13. I wholly agree. In those circumstances, and for those reasons, for my part I would dismiss this appeal.
14. MR JUSTICE BEATSON: I agree and have nothing to add to my Lord's judgment.
15. LORD JUSTICE LAWS: Thank you very much. No consequential matters.