England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		21 June 2011

1. MR JUSTICE COLLINS: This is an appeal against the decision of District Judge Wickham, sitting in the Westminster Magistrates' Court, who upheld an arrest warrant to achieve the return of the appellant to Poland in order to serve the balance of a sentence of five years' imprisonment, which was imposed as long ago as 1996 for an offence of attempted robbery. He was then 17 years old. He has in fact been in this country now for some ten years. He has a wife, herself Polish, and two children. One was born in Poland being now 11 years old, and the other was born in this country. The effect is that both have grown up in this country and have known no other.
2. The appellant himself has unfortunately not led a blameless life here in as much as he was arrested and convicted of an offence of using a forged driving licence in order to obtain employment. For that he was sentenced last year to a period of three months' imprisonment. He had in fact been released from the sentence imposed in Poland in August 1998. That release, I gather from the material before me, was on compassionate grounds to enable him to help to look after his father who had fallen ill. He was entitled to apply annually for the release to be continued. If he applied successfully in three consecutive years, then it appears that the release would have become absolute. He made an application in 1999, which was agreed. He made a further application in 2000, again which was agreed, but he failed to apply in 2001 and decided to leave Poland. I have no direct evidence of his motives for doing that, but it is easy to suspect that it was because he was concerned that there would be a refusal to allow the third application, which would have meant his return to custody.
3. He had served just a few days over two years when he was released. There is a dispute as to the period when he was in custody in this country, which might count towards the balance of the sentence, which he may be required to serve in Poland. Essentially any period that was as a result of custody on the extradition matter and not in relation to the domestic offence would count. On one view there is very little, if any, to count against the extradition; on the other there is a period of, I gather, up to 12 weeks or thereabouts. That means that, on the face of it, he has just under some three years, whether by a few days or a couple of months is not entirely clear.
4. Be that as it may, the Polish system permits a release on licence after the service of a particular percentage of any sentence imposed. It is not entirely clear, from the information before the court and indeed the information that was before the District Judge, as to precisely what the arrangements were with the appellant. There is in the bundle a letter from a lawyer, who was representing the appellant in Poland, who wrote, I think to the court in Poland, asking what the situation was and giving some information as to his understanding of the position.
5. It seems that before a new penal code came into force in June 1997, which of course would have been after the sentence was imposed in this case, the existing code then allowed for conditional release for someone of the appellant's age after serving one third of his sentence. The new code increased that, it seems, to half. The evidence is that the court can now consider in the case of someone who was sentenced and dealt with before the new code came into being, both the new and the old. That is to say, the period of one third could be used in the appellant's favour. That seems to be based on a somewhat unsatisfactory state of the evidence from the Polish authorities. He has been applying for the balance of his sentence to be suspended, as it were, but the Polish court has not reached any decision and is not likely to reach any decision until he is returned before it. There is the potential, however, but it is by no means certain, for his release, having served at least one third and possibly even nearly one half of the original sentence imposed.
6. The offence was a serious one: attempted robbery of a postman. The circumstances, as set out in the arrest warrant, were that on 8 May 1996, acting together and in agreement with another youngster, he hit a postman on the head with an aluminium rod which caused bruising, and when the postman fell over bruising to his elbow. This interfered, as it is put, with the functions of his bodily organs for less than seven days. He tried to steal a bag full of money orders with a value of not less than 3,500 Polish zloty.
7. He did not achieve his attempted aim, it is said, because he was caught red handed. It seems that the offence of which he was convicted carried a minimum penalty of three years' imprisonment, but of course any such penalty is subject to the provisions that were material at any particular time, which allowed early release provisions rather similar to those in force in this country, and no doubt in others.
8. The ground of appeal is based upon Article 8 of the European Convention on Human Rights. He has, as I have said, been here for the last ten years, or so. He has a wife and two children who have grown up here. Albeit he was convicted of the offence of using a forged document (a driving licence, to enable him to get better employment) he has otherwise worked here and kept out of trouble. Effectively he has, it is said, made his life here since he was about 20. He is now just over 30 and it would be harsh, to say the least, to return him to serve whatever balance there may be of the offence.
9. The District Judge heard evidence from him as to his circumstances. She made the point that he had served, it was said, up to two and a half years, but it was accepted that he had chosen to leave Poland when he knew perfectly well that he was subject to the sentence and he might well have to serve at least some extra time in custody. The warrant itself was defective in as much as it indicated that there were the whole of the five years still left to serve, but that was corrected from information from the court and it is accepted, and the judge stated, that that mistake was not fatal to the warrant.
10. The District Judge was referred to the leading case on the question of proportionality in relation to extradition and Article 8, namely Norris v the United States of America [2010] 2 WLR 572, a decision of the Supreme Court in which nine of their Lordships sat. It is therefore a strong decision.
11. The approach is indicated by Lord Phillips, who at page 592 in the WLR said this:

"The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves. That, no doubt, is what the Commission had in mind in Launder 25 EHRR CD 67, 73 when it stated that it was only in exceptional circumstances that extradition would be an unjustified or disproportionate interference with the right to respect for family life."

On the following page he aid this:

"64. When considering the impact of extradition on family life, this question does not fall to be considered simply from the viewpoint of the extraditee. ... This issue was considered by the House of Lords in the immigration context in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2009] AC 115. After considering the Strasbourg jurisprudence the House concluded that, when considering interference with article 8, the family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition.

65. Indeed, in trying to envisage a situation in which interference with article 8 might prevent extradition, I have concluded that the effect of extradition on innocent members of the extraditee's family might well be a particularly cogent consideration. If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act."

That of course is a relatively extreme case, which is given as an example.

12. In her decision the District Judge said that she recognised the severe effect on his family: as she put it, "severe disruption to him and his household if an order was made2, but there was, as she indicated, the potential for an early release on parole. This was by no means a trivial offence. On the other hand, it is a very ancient offence and indeed in November of this year, on the indication given in the arrest warrant itself, 15 years having passed there will be no liablity to impose the balance of the sentence. This would mean that if he were not returned before November he would not be able to serve the balance of the sentence. That is also prayed in aid by Mr Hawkes as a factor which can be taken into account in assessing whether this truly can be regarded as an exceptional case.
13. I am bound to say that I take the view that this is very much on the borderline. The question I have to decide is on which side of that borderline it falls. It is important to have regard to the fact that this appellant chose to absent himself from Poland and thus avoid the possible application of the balance, or part of the balance, of the sentence. On the other hand, it has taken the Polish authorities a very long time to catch up with him and, as I say, this offence is now a very old matter and he has served over two years in prison as a result of his misbehaviour. He has not behaved himself as a perfect citizen here.
14. On the other hand, one must bear in mind that his wife, and more particularly his children, have not known other than life in this country and it would be a very severe wrench for them if they lost their father for a time, or if they had to go back to Poland in order to be with him. It is of course not possible to know whether he will, if he is returned, be released on licence, or if he is how long he will have to serve. However, there is the potential of serving at least two and a half years, and possibly a little more than that, for the offence for which he was convicted back in 1996.
15. The threshold set by Norris is a very high one and understandably because it is important that the judicial decisions of the states, who are party to the European arrest warrant, are recognised and are complied with in cases which have to be considered by the courts of this country. It is important, in my view, that the need for such compliance is recognised.
16. There will be here a severe effect upon the family. I have to ask myself whether it is sufficiently severe, having regard to the example given by Lord Phillips and the very high threshold that is applied in Norris, to justify allowing the appeal in this case. I also have to recognise that the District Judge, who is very experienced in dealing with these cases, exercised her discretion in the way that she did and that is a factor again, as it seems to me, I have to take into account. Although, as I have said, I have a lot of sympathy for the appellant, I am afraid that in my judgment this does not reach the threshold which is required by Norris and therefore, and I am bound to say with some reluctance, I dismiss this appeal.
17. MR HAWKES: May I ask for a Legal Aid Certificate?
18. MR JUSTICE COLLINS: Yes, of course.
19. MR HAWKES: I am much obliged.