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
		9th April 2008

1. LORD JUSTICE KEENE: This is an appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against an order for the extradition of the appellant to Poland, that order having been made by District Judge Evans sitting at the City of Westminster Magistrates' Court on 15th February 2008. Poland is a category 1 territory within the meaning of section 1 of the 2003 Act, with the result that the provisions in part 1 of that Act apply. Those provisions, as is well known, seek to implement in our domestic law the European Civil Framework Decision on a European arrest warrant.
2. In the present case, two European arrest warrants were issued by the relevant authority in Poland in respect of this appellant. The first of those, dated 23rd May 2007, alleges an offence of obtaining a pecuniary advantage by fraud on 14th August 1996. The warrant makes reference to a decision on provisional arrest, having been issued by a Polish court on 30th December 1999. The second warrant, dated 17th October 2007, alleges an offence of obtaining money under false pretences by presenting forged cheques on 20th April 1999 at Krakow. There the warrant makes reference to a provisional arrest decision in Poland on 10th December 1999.
3. The appellant is of Polish nationality whose evidence was that he came to the United Kingdom on 6th October 1999. He had lived here since then with his Polish wife and three children aged 17, 10 and 6. His case before the District Judge was that he had come to this country to seek a better life without knowing of these allegations against him. He had until he left Poland been living at the address set out in one of the warrants. Yet no one from the police had called there about these alleged offences. This was the foundation for a submission that his extradition was barred under section 14 of the 2003 Act by reason of the passage of time having rendered extradition unjust or oppressive.
4. The District Judge had information before him, as we have, supplied by the Polish authorities, that a summons to appear at the prosecutor's office was "served" on 13th September 1999 at the address where the appellant resided, that being the address which he himself said in evidence he was then living at. I say "served" because what seems to be meant by that is that the summons was sent to that address. The English translation of that information goes on to say that the appellant "did not receive the summons and it was sent back to prosecutor's office with the post office note 'addressee not present'".
5. It also states that on 29th September 1999 and 12th October 1999 the district prosecutor ordered the appellant to be compulsorily brought to his office, but these orders were not fulfilled because the appellant "did not stay at the address". The information also states that it was impossible to establish the place of the appellant's residence. It then describes checks carried out in Poland during the year 2000.
6. The District Judge rejected the submission based on section 14. He found as a fact, having heard the appellant give evidence before him, that he did not believe the appellant's account of having left Poland for reasons unconnected with these alleged offences. The judge found that the appellant had known of the summons and had fled the country. That is highly relevant to any issue arising under section 14 as the well-known passage from the judgment of Lord Diplock in Kakis v the Government of the Republic of Cyprus [1978] 1 WLR 779 at 782 makes clear:

"'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 of 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."

There is a similar passage in Lord Keith's judgment in the same case at page 787. The District Judge then held that there were no exceptional circumstances here and he concluded that extradition was not barred.

7. That decision is now challenged. Emphasis is placed on the fact that the alleged offences were relatively minor and occurred, now, some 9 years ago and over 11.5 years ago, respectively. Since then the appellant has built up a life for himself and his family in the United Kingdom, he has settled accommodation here and his children are being educated here.
8. Mr Yeo, who appears on his behalf, submits first that the finding that the appellant had fled Poland was contrary to the evidence. He stresses that the appeal to this court under section 26 is, as indeed is the case, on fact as well as law, though he does accept that the burden rests upon him to demonstrate that the finding made by the judge who heard oral evidence from witnesses, as happened in this case, was wrong. Mr Yeo relies on the statements made in the further information, to which I have referred, that the appellant "did not receive the summons", and that it was sent back marked "addressee not present". So it is said that the Polish authorities were not asserting that the appellant was aware of the allegations and had fled the country.
9. Ms Scott for the respondent draws attention to section 27(2) and (3) of the 2003 Act, which deal with appeals under section 26. Section 27(2) empowers this court to allow an appeal only if certain conditions are satisfied. By section 27(3), one such condition is that the judge below "ought to have decided a question before him at the extradition hearing differently". Ms Scott relies upon the decision in Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin), where Sedley LJ said this of section 27(2) and (3):

"This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety."

Ms Scott submits that the District Judge's finding of fact here was one properly open to him on the evidence, including the oral testimony of the appellant himself, and since the District Judge had heard the appellant, this court should be slow to interfere with that finding.

10. Because of its acknowledged importance, I propose to take this first issue concerning the District Judge's finding of fact straightaway. I cannot see that any real weight can be attached to the phraseology that the appellant "did not receive the summons", which really amounts to no more than a statement that the summons was sent back, apparently not served. Clearly the Polish authorities could not give direct evidence about the appellant's state of knowledge, beyond the fact that the summons had, on the face of it, been delivered at the appellant's address and returned marked "addressee not present". Yet according to the appellant's own evidence in the Magistrates' Court, he had been living at that address on the date of delivery, or when it was posted at least, 13th September 1999, and his wife was there, he said, all the time. The District Judge clearly had to make up his mind as to whether he was satisfied that the appellant had known about the allegations and had fled the country.
11. The District Judge knew that the appellant had left Poland on 6th October 1999, approximately 3 weeks after that attempt to deliver the summons. There was, in my judgment, a potentially significant combination of dates there. I do not accept that that was too short a period for the appellant to make arrangements to flee with his family, as is suggested in the written skeleton argument, given that he would have felt a degree of urgency, no doubt, about the matter.
12. The District Judge had the advantage of having heard the appellant give evidence and being cross-examined on this topic. The approach adopted to section 27 by this court in Wiejak seems to me to be the correct one. There was no doubt that the judge formed an unfavourable view of the veracity of the appellant on this aspect of the case. In my judgment, he was entitled to do so and to make that finding of fact, and I can see no reason why this court should interfere with it.
13. Mr Yeo then submits that that finding should not be determinative of the matter. The section 14 test is there and the statutory words are what the court has to apply. Delay attributable to the appellant is relevant, but only one circumstance to be considered with all other factors. It is argued that the appellant has been living openly in the United Kingdom in his own name and is known to the local authority and to the education and health authorities. Moreover, these offences are relatively minor. That, it is said, is a particularly important consideration in the present circumstances, when the appellant has lived in this country for so long and is now settled here. Consequently, it would be oppressive for him now to be extradited with all the disruption that would be caused by that.
14. For my part, I accept that the words of Lord Diplock and Lord Keith are not to be substituted for the statutory test. They are, however, extremely important when one comes to interpret the statutory words in section 14. Delay caused by the appellant may not be determinative, in the strict sense of that term, so that one looks at no other factors, but it may nonetheless be the most important factor in a given case. In particular, such delay makes it very difficult for an appellant to rely on the way in which he and his family have become established in this country since he fled, because all of that has happened when, to his knowledge, he was wanted by the authorities in another country for a criminal offence or, in the present case, criminal offences. The disruptive impact, therefore, upon himself and his family, are matters which flow, to a very substantial degree, from his own actions.
15. The fact that the appellant's whereabouts have been known to a local authority in this country, and to education and health authorities, is not, in my view, of great significance. There are a large number of local authorities and other such bodies in this country. The Polish authorities were, on the evidence we have seen, not even to know that he had fled to the United Kingdom, far less could they be expected to contact all the local authorities in this country to inquire about his whereabouts. That would not be reasonable. I am not persuaded, therefore, that there has been any culpable delay on the part of the Polish authorities.
16. I share the District Judge's view that there is nothing exceptional about this case. It is right that the offences are not of the gravest which come before this court in extradition matters, but they are still extradition offences within the meaning of the legislation and there is no reason why it would be oppressive for this man to be extradited to be tried on those charges, given the part which he has played and the passage of time that has taken place. I can see, therefore, no bar under section 14 of the 2003 Act, and for my part I would dismiss this appeal.
17. MR JUSTICE TREACY: I agree.
18. LORD JUSTICE KEENE: Any applications?
19. MR YEO: My Lord, could I ask for a detailed assessment of legal aid?
20. LORD JUSTICE KEENE: Yes, you are entitled to that. Thank you, Mr Yeo. There is no application for costs, I would imagine, is there?
21. MS SCOTT: My Lord, no.
22. LORD JUSTICE KEENE: Good. Thank you both very much indeed.