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 WC2A 2LL
		2 December 2008

LORD JUSTICE SCOTT BAKER: This is an appeal by Mr Mirga against an Extradition Order. We have already extended the time for the hearing until today.

1. The appellant is sought by the Polish judicial authorities under three European Arrest Warrants. His extradition was ordered by District Judge Quentin Purdy at the City of Westminster Magistrates' Court on 9 October 2008. The three warrants comprised one conviction warrant and two accusation warrants. Warrant No. 1 was issued on 16 September 2008, and relates to a conviction for two offences of fraud. Warrant No. 2 was issued on 15 September 2008, and is an accusation warrant for two offences of fraud. Warrant No. 3 was issued on 29 June 2007, and again was for two offences of fraud.
2. The appellant was arrested on 9 August 2008 on Warrant No. 3, which, as is apparent, was the first in time to be issued, and he was arrested on the others on 19 September 2008. The remaining issue on the appeal relates to the passage of time that has elapsed since he left Poland, and whether it would be oppressive for him now to be returned.
3. Section 14 of the Extradition Act 2003 provides:

"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 committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

4. The offences in the warrants are all said to have taken place between 1996 and 1999. The appellant's evidence to the District Judge was that he came to the United Kingdom from Poland on 25 March 1999, but it later appears that this may in fact have been not then but later in 2000. Nothing however, in my judgment, turns on this difference. The judge found that the appellant frankly accepted that, on leaving Poland, he knew he was the subject of criminal proceedings and was required to surrender to the police or the court. He had a Polish lawyer, but did not inform him of his departure to the United Kingdom, or that he was (as he was subsequently) granted indefinite leave to remain in this country by the Home Office.
5. The judge did not find the appellant a credible witness. He records that the appellant says that he fled Poland fearing victimisation. He said:

"I reject that and find on seeing/hearing him it is plain that he fled Poland to avoid criminal proceedings and has manipulated the system here in the UK, claiming victimisation if returned. He had a lawyer at public expense in Poland and no reason to fear he would be unable to defend himself if returned."

6. So the position is that the appellant never told the Polish authorities that he had come to this country, and never told them of his whereabouts in this country having arrived here. Nor did he tell the United Kingdom authorities of the criminal proceedings against him in Poland.
7. It is to be observed that for section 14 to bite, it is necessary to show that it would be unjust or oppressive to extradite the appellant by reason of the passage of time since he committed the extradition offences or became unlawfully at large. "Unjust" relates primarily to the ability to defend himself in Poland, and that does not arise in the circumstances of this case. This case focuses on the word "oppressive".
8. The starting point in all cases involving delay is the words of Lord Diplock in Kakis v the Government of the Republic of Cyprus [1978] 1 WLR 779 at paragraphs 782H-783B. Lord Diplock said this:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by 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."

The burden is on the appellant to show that it would be "unjust" or "oppressive". In this case, the focus is, as I have said, on "oppressive".

9. Culpable delay on the part of the extraditing state is no more than a factor that has to be taken into account in deciding whether a return would, in the circumstances, be oppressive. Our attention has been drawn to remarks of Hughes LJ in the case of Government of Croatia v Spanovic [2007] EWHC 1779 Admin, where he said:

"But I have no doubt that it is not the law that if there is proved to be culpable delay in finding the man it is therefore necessarily unjust or oppressive to extradite him, any more than it is necessarily unjust or oppressive to try a domestic English defendant because the police have been (culpably) less than assiduous in catching him. Although culpable delay may be relevant, the principal focus, when it comes to considering the passage of time, is not on a judgment on the performance of the requesting state's investigation but on the effect that time passing has had." (emphasis as in original)

10. We have been given a timetable as to the events that have occurred, and it is perhaps helpful to refer briefly to it. The offences occurred in the period 1996 to 1999. By 12 May 2000 the police were conducting checks at the appellant's erstwhile home address. On 21 June 2000 a provisional arrest warrant was issued for the offences in Warrant No. 2. On 25 August 2000 the sentence was imposed for the offences in Warrant No. 1, and on 16 September 2000 the sentencing decision became enforceable and the appellant was required to attend the relevant penal institution on 10 November 2000. He failed to attend at the institution on that day. By this time, of course, he was out of the country and in the United Kingdom. On 14 November 2000, after his failure to attend, a decision was taken to bring him to justice. On 23 November a provisional arrest was issued for the offences in Warrant No. 3.
11. The summary records that, on various dates between 2001 and 2007, the judicial authorities were regularly provided with reports from the police following checks carried out at the appellant's address. It appears that it first became apparent to the Polish authorities in March 2003 that the appellant might be resident in the United Kingdom, and there followed after this, correspondence which is said to have taken place on 7 August 2003, 3 February 2004, 18 November 2004 and 26 August 2005, but that despite an ongoing search, he could not be found in the United Kingdom, and his last known address in Poland continued to be checked regularly. Further details are provided of dates when steps were taken to try and find him. I shall not recite all of those, but they extend through to 12 October 2006.
12. It seems to me that it is not open to the appellant to go behind the judge's finding that he left Poland because of the criminal proceedings that were outstanding against him. The judge rejected the appellant's account that the predominant reason why he left was due to harassment because he was a Roma Gypsy.
13. The District Judge had statements from the appellant's brother, Mr Nowak, and his wife, Anita Urbanowska, before him, although he had did not hear evidence from either of them. Mr Nowak was present in court today and we agreed to hear cross-examination of him, but it became apparent when he was in the witness box that his understanding of English was inadequate for any meaningful cross-examination to take place. In these circumstances, Miss Collins, on behalf of the prosecution, very sensibly accepted that she would be prepared to take his witness statement at face value. We do that likewise, but it seems clear that although he refers to and largely gives indirect evidence in relation to events that might be interpreted as problems caused because the appellant was a Roma Gypsy, they certainly do not go anywhere near far enough to, in my judgment, undermine the judge's rejection of that reason being the predominant one for his departure from Poland.
14. In these circumstances, Mr John, for the appellant, is really driven to submit that the only culpable delay on the part of the Polish authorities is the period of some five and a half years from February of 2003. He submits that the appellant has throughout that period been living perfectly openly in this country, and it is inconceivable that if the Polish authorities had been taking properly vigorous steps to find him that they would not have found him long before.
15. I am unable to accept that submission. The evidence does indicate that quite a lot of effort was being made on the part of the Polish authorities. For my part, I would not conclude that there has been any culpable delay on their part. It seems to me that the fundamental reason for the delay in this case is because the appellant fled justice in Poland. He has been living in this country for a number of years. It is now something like double figures in terms of years since the offences were committed, and he has been here for certainly something in the region of nine years or thereabouts.
16. Extradition inevitably causes a degree of hardship, perhaps quite significant hardship, on an unsuccessful fugitive. That is as much the case in the present circumstances as in a great many others that come before the court. Unfortunately for the appellant, he has brought this problem on himself in fleeing from Poland and not telling the authorities where he has gone. It is true that he has put down considerable roots in this country. He has family ties here and business ties. For my part, I accept that it will be a considerable burden on him, and indeed his family, for him to return to Poland. However, having said that, this case, in my judgment, falls far short of his having established that it would be oppressive in the terms of the legislation for him to be returned to Poland, and in such circumstances amount to a bar to extradition.
17. I would therefore dismiss this appeal.
18. MR JUSTICE TREACY: I agree.
19. LORD JUSTICE SCOTT BAKER: Any other applications?
20. MISS COLLINS: My Lord, there is no application on the part of the respondent.
21. LORD JUSTICE SCOTT BAKER: Thank you both, very much.