England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		20 November 2012

Tuesday 20 November 2012

MR JUSTICE OUSELEY:

1. This is an appeal against the decision of Senior District Judge Riddle given on 9 July 2012 ordering the extradition of the appellant to Poland on two European Arrest Warrants. The first ("EAW1"), issued on 31 May 2011 is an accusation warrant which, so far as now relevant, relates to one offence of burglary allegedly committed with two other named individuals in 2002. It involved breaking into a garage (which may or may not have been a domestic garage) and stealing licence plates, it appears, from a battery attached to a tractor, to a grand total of 300 zlotys.
2. The other European Arrest Warrant, described as EAW3 in the district judge's decision, is a conviction warrant. It concerns the service of the balance of original sentences of two years six months' imprisonment, of which seven months and nine days remain to be served.
3. The two underlying offences concern the theft of cash from arcade machines and the theft of a vehicle.
4. The missing Extradition Warrant between numbers 1 and 3 (which for convenience I shall call 2) related to the two offences in Extradition Warrant 3. Extradition Warrant 2 comprises two separate warrants. One was the accusation warrant in relation to the theft of the car. The other was a conviction warrant in relation to the theft from the arcade machines for which a sentence of one year eight months' imprisonment was imposed.
5. Extradition to Poland was ordered on those two warrants in July 2008. In January 2009, following the appellant's failure to attend for his removal, he was arrested in relation to those warrants and later removed on that date. He was convicted on the accusation warrant in July 2010. His sentence for that was aggregated with the sentence of 20 months' imprisonment for the arcade machine thefts, making the total of two years and six months' imprisonment.
6. The appellant was conditionally released from custody, having served a substantial proportion of that sentence. The terms of the conditional release were not before the district judge. I have been provided with them. The appellant attaches importance to them. The District Court describes the exemplary behaviour of the appellant in prison. It refers to him having contact with his close family, a place to live when he leaves prison, and in that state of affairs, and bearing in mind that the acts were carried out more than ten years ago and that he has worked and provided for his family, he was given conditional release. It continued:

"The supervision of a probation officer, admittedly limited in a natural way, because the convict lives beyond the borders of the Republic of Poland, but obligatory under .... the Penal Code, together with the appropriate probation obligations, should be a sufficient instrument to persuade him to respect the law ...."

One of the conditions imposed was that the appellant report to the court probation officer in the area where he lived within seven days of release, and he then had to inform the court about every change of place of abode.

7. While the appellant had been in custody the Polish authorities had sought to try him in relation to the offence which is the subject matter of EAW1. Further information (again not before the district judge) explains what happened. There were seven occasions between 12 June 2009 and 31 March 2010 when there were court hearings of one sort of another in relation to this charge which had been filed against him on 18 February 2009. At the last of those hearings the appellant declared that he did not consent to be prosecuted in respect of that burglary as it was not covered by the European Arrest Warrant. He asserted his specialty rights. The information continues that, in those circumstances, proceedings against him had to be suspended until the serving of the penalties of imprisonment, in which the European Arrest Warrants had been issued so far, had concluded.
8. On 11 or 12 October 2010 consent was sought from the City of Westminster Magistrates' Court to prosecute the appellant in respect of EAW1. Consent was granted on 7 January 2011. It was not long after the appellant's release, and certainly by the time the consent was granted, that the appellant had returned to the United Kingdom and so the requirement for consent in relation to specialty had, in fact, disappeared.
9. The warrants with which I am concerned were issued in May and November 2011. The first was executed when the appellant coincidentally was arrested in relation to another offence of theft which was not, in fact, proceeded with. It does not appear that either was executed at any known address.
10. The reasons for the reactivation of the sentence are given in further information (again not before the district judge). The basis was that the appellant had evaded the requirement for supervision, had not contacted the court-appointed custodian, had left Poland, and was now wanted. The information from Poland also says that he did not notify the court-appointed custodian or the Circuit Court of Lublin about the fact of his intention to go abroad and that the court had not made any decision on that matter.
11. On the information before him, which has been significantly augmented by further evidence before me, the district judge came to the following conclusions. He recognised that there was some apparent unfairness in the appellant being required to return to Poland to deal with EAW1 when he had already served a sentence in custody in Poland for other offences. While he was serving those sentences it appears that request was made to, and consent was granted by, the magistrates' court for him to face proceedings in relation to offences in 1994. The judge, however, took the view that a substantial responsibility for this delay lay with the appellant. He had fled Poland in December 2003. He added to the delay by his failure to surrender in August 2008 after extradition had been ordered. He had then fled Poland for a second time as soon as he was at liberty to do so. That was a reference to his departure shortly after 6 October 2010. In those circumstances, in relation to EAW3, the senior district judge concluded that the appellant could not rely on the passage of time bar for those offences. He was not sure that the appellant was disentitled from arguing the passage of time bar for EAW1, but concluded that, as he was to be extradited on EAW3, he would be separated anyway from his family. His non-consenting to extradition in 2008 and his refusal to waive his specialty rights caused delay in dealing with the offences, but although the position was unfortunate, the senior district judge concluded that there was no oppression.
12. Before me Mr Jones, on the appellant's behalf, has sought to adduce further evidence covering four points. First, there is evidence in relation to the conditional release of the appellant on 6 October 2010 in order to demonstrate that it was known to the court that he had family in the United Kingdom and therefore in all probability intended to live there (a fact recognised in the court order). Secondly, Mr Jones seeks to rely on the evidence of a Polish lawyer in relation to what would happen in the event of the appellant's return, of the likelihood of a trial taking place within a particular period, of a custodial sentence, and of the sentence being ordered to run concurrently with or consecutively to the seven months and six day sentence he would serve. The lawyer's evidence was also relevant to a contention that the passage of time had made extradition unjust because the appellant would not be able to pursue his alibi argument by way of defence to the garage theft. That was a new point, not raised before the district judge, but the particular additional feature of this evidence was that if the appellant could not afford a private lawyer, but was confined to the services of a court-appointed lawyer, the tracing activities which that lawyer would undertake would be unlikely, certainly at this distance in time, to uncover those who might assist. In that connection Mr Jones also sought to rely on further evidence from the appellant about the nature of his defence and where he might have been, and with a peripatetic work and lifestyle at that time, it was particularly difficult for him to be able to track down anybody who might help his alibi defence. Mr Jones also sought to adduce further evidence relating to the family circumstances of the appellant. Those matters added nothing of substance. It was clear that they could and should have been before the district judge. I decline to accept that evidence.
13. The appellant was represented before the district judge under the duty solicitor scheme in the usual way at the first hearing by those who now represent him. The Legal Services Commission refused assistance on an application because he was earning more than the earnings limit. Shortly afterwards the appellant said that he had lost his job and that accordingly his circumstances had changed. However, it was not accepted by the Legal Services Commission that he had adequately demonstrated that fact. The solicitors were unable to act because the appellant could not fund proceedings himself. Accordingly, although they represented him pro bono for four further hearings, there was a limit to the work that they could carry out and they did not advise him as to the substantive matters regarding his case. Their assistance was limited to endeavouring to procure adjournments for him. Adjournments were granted, but in the end the district judge continued with the case, as was inevitable.
14. In those circumstances the way in which the court approaches new evidence, as set out in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), may require more caution. It is perfectly possible to argue that the appellant should have known that the document of 6 October 2010 was important and could have written to his relative in Poland for him to forward it. It is possible to argue that he should have been able to make points about the difficulty of his defence in the absence of tracing his alibi witnesses, if any, because it is an obvious point to seek to make. However, in my judgment, it is important for the court, in these not wholly unusual circumstances, to have material which a legally aided defendant would have been able to obtain, if represented, if it has come to hand by the time of appeal, on the basis that the appellant's now Legal Services Commission funded legal representatives act promptly to obtain the relevant material. I have accordingly not adopted as strict an approach to what might reasonably have been available as I might otherwise have done. By the same token, I have also considered further evidence from the prosecution side by way of response to that on which the appellant relies.
15. I turn to consider those points. Mr Jones first contends that a return under EAW1 (the accusation warrant) would be oppressive by reason of the passage of time between the offence and now. He contends that he is not debarred by reason of flight from relying on those points.
16. I take, first of all, the period between 2002 and 2010. Although it appears that there was flight -- and it may be that that has created difficulties for the Polish authorities in relation to any prosecution which they might have been seeking to bring -- the district judge was not satisfied that the appellant knew of any such proceedings in relation to EAW1. Although he may have made matters more difficult for himself, so far as the period up to 2010 is concerned, I do not think that the appellant is debarred from relying on the passage of time. That is in line with the conclusion of the district judge.
17. Mr Stansfeld for the requesting authority points, however, to the fact that in March 2010 the appellant, knowing that he was sought in relation to that offence because of the proceedings undertaken while he was in custody, declined to consent to being tried on those matters and relied on his specialty rights. He left Poland very shortly after he was released, so no further proceedings could be taken against him. Mr Stansfeld submits that so far as that offence is concerned, restrictions were imposed on him, quite apart from the conditional release provisions in relation to sentence. Further information dated 28 February 2012 says that the accused had not applied to the court for consent to a change of his place of stay, including to his departure to Great Britain, nor had he notified the court about his address in Great Britain, although he was obliged to do so, and he was aware that the criminal proceedings were proceeding against him. Trial was due to take place on 11 February and as he had not told them his new address, he could not be summoned for the trial.
18. Mr Jones says that until he had been told of the request for consent, he could not be a fugitive because there were no proceedings against him from which he could flee, and the court could not be satisfied in the light of the evidence which he had given in his witness statement, that the appellant had not kept the Probation Service informed of his address.
19. I am reluctant to conclude that the appellant is a fugitive in those circumstances, although it is clear to my mind that he knew proceedings had not been concluded and were likely to be persisted with. The precise nature of the interaction between the court of trial on EAW1 and the court of release on 6 October 2010 remains obscure. I am aware of the wholly justified disbelief which the district judge expressed in much of the appellant's evidence, but I must be satisfied to the criminal standard of proof. I do not debar the appellant from relying on the passage of time by virtue of being a fugitive. It is, however, clear to my mind that he has brought the position which he faces upon himself by his insistence on his specialty right, by his return to the United Kingdom, and by what remains considerable uncertainty over the extent to which he kept in contact with the court that was seeking to try him.
20. I must consider whether the passage of time has caused oppression to the appellant if he is extradited. There are two areas of change of circumstance which are relied on. First, the appellant now has a family comprising a fiancee and a son who is 8 years old. That not unusual state of affairs which has arisen over a period of eight years or so is not of itself a sufficiently compelling circumstance to take this case beyond that of the hardship commonly associated with extradition. Mr Jones says that this is a second bite on the part of Poland, and that Poland ought to have dealt with EAW1 at an earlier stage so that all matters could have been wrapped up at an earlier stage. It is particularly unfair for someone who has been released from Poland to come back to the United Kingdom to then find that yet again he is facing an enforced separation from his family, disruption to his life, to face what may be an uncertain period pre-trial and then a further period in custody in addition to whatever may happen under EAW3.
21. In my judgment that is not a factor that is of sufficient weight, although I understand why the senior district judge said what he did about the appearance of unfairness. There may have been delay in prosecution, but that will rarely tell against the prosecutor. However, in any event, as I have spelt out, the appellant has been a fugitive in relation to other proceedings in Poland, as the district judge found. More importantly, as I have explained, he took a calculated gamble, in declining to waive his specialty right and returning to the United Kingdom, that there would be no follow up to those proceedings which he knew had not been concluded and must have known would have resulted in another European Extradition Warrant.
22. Accordingly, in relation to the oppression argument and EAW1, I reject it.
23. I also reject the contention that the passage of time means that it would be unjust to extradite the appellant. The appellant's evidence does not set out any details of how his defence would be affected. It is possible to infer from what he says about the uncertainty that he has about his whereabouts at any particular time that he seeks to provide an alibi defence. He provides no details of any who might assist him, beyond that of an employer whose reaction towards him appears to be unco-operative at the best of times, rather than on account of the passage of time. The two individuals named as co-defendants do not excite any comment from the appellant in his evidence, whether his knowledge of them, relationship to them, or presence with them on any but innocent occasions. He is unable to point to any specific loss of a witness, but only to a potential difficulty after a number of years, which his court-appointed lawyer would not be able to remedy. This is a not uncommon situation, even with less time than has elapsed here. It is a situation which a fair trial process can accommodate when judging any conflicts of evidence. There is, in my judgment, no basis for saying that the appellant has been prejudiced in his trial by comparison with the position had there been an earlier one such as to make it unjust to extradite him.
24. I turn to oppression in relation to EAW3. It is only in relation to one part of it, namely the arcade set of convictions (in early 2009) that this point arises. Given that the sentence was an aggregate sentence with the car theft offence, it is difficult to see how those could sensibly be dis-aggregated. In any event, it is difficult to see how the appellant can properly rely on the period preceding the conviction, given that that is now water under the bridge.
25. So far as the period after conviction is concerned, one needs to focus on what is at stake. What is at stake is the enforcement of the service of the rest of the sentence. The justice of requiring that to be served is for the Polish Courts rather than for the Courts of the United Kingdom. There is, in my judgment, nothing oppressive on the basis of what the Polish authorities say about the appellant being required to return to Poland to serve the balance of the sentence, conditional release in 2010 notwithstanding. It will be for the Polish Courts to judge the extent to which the appellant did or did not comply with his supervision requirements.
26. Finally, it is said by Mr Jones that Article 8 would be breached in relation to both the appellant and the rest of his family. It is clear that there would be an interference with their rights, that it would be harmful, and particularly so to the son who would face separation from his father for a second time by way of extradition -- and indeed a third time because the appellant has served a custodial sentence in this country. I accept that his fiancee has suffered a nasty broken leg, which provides some limitations to her, but the reality is that the family coped last time. Even had I allowed the other evidence to be adduced, there is no basis upon which it can be concluded that they would not cope without him. There is a disadvantage, I accept, but essentially I see that as being down to a chance which the appellant decided to take when responding to the circumstances in March 2010 by standing on his specialty rights and then returning to the United Kingdom and maintaining comparatively limited contact with the court of trial, whatever he may have done elsewhere.
27. In my judgment, notwithstanding that EAW1 is not very serious in terms of its amount, and that the bulk of the sentence in EAW3 had been served, cumulatively and in the circumstances of this case it would not be disproportionate for the appellant to be extradited on these two warrants. Accordingly, this appeal is dismissed.

MR JONES: My Lord, can I simply ask for an order for costs to be assessed in the usual way?

MR JUSTICE OUSELEY: They will be assessed in the usual way.

MR JONES: I am obliged.

MR JUSTICE OUSELEY: Thank you very much.