CO/4501/2012
Neutral Citation Number: [2012] EWHC 3572 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE  COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday 20 November 2012

B e f o r e:

MR  JUSTICE  OUSELEY
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B E T W E E N:

KRYSTIAN  JOZEF  ZOLNIEREK
Appellant
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CIRCUIT  COURT  OF  SWIDNICA,  POLAND
Respondent
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Mr Martin Henley (instructed by Gunley Clerk & Ryan)
appeared on behalf of the Appellant

Mr James Stansfeld (instructed by the CPS)
appeared on behalf of the Respondent
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J U D G M E N T
Tuesday  20  November  2012

MR JUSTICE OUSELEY:  
1.  As with so many extradition appeals, it is not difficult to have sympathy with the misfortune that a particular appellant may face, and the more so with the problems which extradition may cause to his family, especially when young children are involved.  This is a problem which arises more commonly in Polish cases than in most other countries because the Polish judicial authorities do not appear to exercise any proportionality judgment when pursuing a request, measuring the gravity of the offending, the length of sentence to be served, against the delay in issuing an arrest warrant.  Nor do they consider the particular circumstances of the extradited person.  Those latter factors are potentially not without significance in an appropriate case when the balancing exercise under Article 8 of the European Convention on Human Rights comes to be undertaken, weighing what the public interest in extradition requires to be considered.  The public interest in extradition as a generality is given, but its effect in any individual case will, of course, vary with those factors which it falls to this court to consider.

2.  In this case the extradition of the appellant was ordered on 26 April 2012 by District Judge Zani on an extradition warrant which was both an accusation and a conviction warrant.  The accusation warrant concerned a single offence of fraud committed in 2005.  The detail in the warrant said that the appellant had used a forged certificate of employment and earnings in order to enter into contracts for mobile telephone and communication services.  The domestic warrant was issued in July 2006.  

3.  The conviction part of the warrant related to convictions in April 2004 in the appellant's presence for eleven offences of forgery and document fraud.  In a similar vein to the accusation warrant, he forged loan applications, certificates of employment and bank forms in order to conclude hire purchase agreements for goods and to obtain loans.

4.  The appellant was sentenced to two years' imprisonment conditionally suspended.  He had served a period of nearly five months' imprisonment before the sentence took effect.  His extradition is sought to serve the remaining one year seven months and twelve days.  No circumstances are specified as to what has caused the suspended sentence to be activated in that way.  It may be that the offence alleged in 2005 had caused it, or some other failing in relation to contact, as is not uncommon where an individual leaves Poland.  The appellant was arrested in 2011.

5.  Before the district judge the appellant relied on the medical condition of the youngest of his two children and that of his wife, as well as the family separation which extradition would inevitably create, and the fact that he had lived in the United Kingdom for over six years with the associated ties, and that he had a job.

6.  The appellant's partner suffers from a congenital condition, polycystic kidney disease, as well as associated high blood pressure.  The disease is kept under control by medication, but it is one the prognosis for which, in terms of dialysis or transplant, remains uncertain.  It has become important for her to reduce her working days.

7.  The youngest son, sadly, suffers from the same condition.  It was originally a condition in one kidney; it is now in both kidneys. He is being cared for under the supervision of consultants, but living at home.  The prognosis again is unclear.  He faces the potential of having dialysis or transplant.  Mr Henley, on the appellant's behalf, has told me that it is unusual for someone who is aged only 4 to have such a serious development of cysts.

8.  The district judge referred to the fact that the appellant also suffers from kidney problems.  It is not clear how far the appellant's evidence as to his own condition went.  In further evidence, which Mr Henley seeks permission to adduce, it has been made clear that the appellant suffers from nighttime enuresis as a result of a medical condition which was treated with surgery when he was young in Poland, but which has effectively been unable to prevent, certainly when under stress, a lack of holding capacity in his bladder.  Under recent stress his condition has worsened.

9.  The district judge applied to the material before him, in which he accepted the evidence given by the appellant and his partner as to her position and the position of their son, that it did not constitute material close to satisfying the high threshold of Article 8 to prevent extradition, as laid down in Norris v Government of USA [2010] UKSC 9, [2010] 2 AC 487.  He added that, even if the high threshold were to be substantially lowered in HH v Italy, it would not assist the appellant.

10.  HH and HP v the Deputy Prosecutor of Genoa [2012] UKSC 25 has now been decided.  In it all the members of the Court agreed that the sort of language of "high threshold" or cognate expressions diverted the court from its true task, which was a case-specific examination of the circumstances of the family in a structured analysis considering the various stages which Article 6 requires for its proper application.  There was no starting point, therefore, that unless a particularly unusual or exceptional set of circumstances was shown, the interests of the public in extradition would outweigh the interference with the individual rights.  The case also makes clear that where the interests of a child, and particularly a young child, are involved, considerable care is required in the analysis and in the judgment of proportionality.  

11.  Not surprisingly, Mr Henley draws attention to what was said in relation to the facts of the other case being dealt with at the same time, for example at paragraph 45 in the judgment of Lady Hale.  He refers me also to what might be seen as the "tougher approach" of the Divisional Court in JP v District Court at Usti nad Labem, Czech Republic [2012] EWHC 2603 (Admin).

12.  There is little, in my judgment, to be gained by a factual comparison of one case with another in this respect.  They are fact-specific.  It is clear, in my judgment, that there would be an interference with the Article 8 rights of the appellant and his family.  It is clear that it would be an interference which would last at least for the period of serving the sentence in respect of the offences of which he has been convicted, which may or may not be lengthened as a result of trial, possible conviction and sentence on the other offences.  One can see, therefore, that there is potentially a period of separation of more than two years.  For the father in the life of young children, and young children in the life of a father, that is a significant interference.  It is made the more significant because of the younger son's illness and the problems which the mother has which restrict her ability to earn and make it more likely that she will need state support and perhaps disability benefits.  On the other hand, it is clear that the child is receiving proper medical care for his condition, as is she.  It is clear that the interference would be in accordance with the law. There is plainly a powerful general public interest in following the extradition obligations under the framework decision.  The offences are not trivial.  The court was content to pass a largely suspended sentence on the conviction warrant.  It is impossible to gauge what it will do in relation to the other offence, but a custodial sentence, possibly suspended, has to be in contemplation for the reasons I have given.

13.  The position in relation to the impact on the child is not that he faces some urgent or life-threatening illness.  He has been diagnosed and is being treated.  There is, of course, uncertainty.  There is potential for serious change, but at present the child is being well looked after and will continue to be well looked after by the mother.

14.  So far as the appellant's nighttime enuresis is concerned, Mr Henley rightly puts that as an aspect of Article 8, rather than Article 3.  It is something which in a shared cell in custody will plainly be embarrassing and distressing, and stressful in its anticipation.  But, as Mr Henley also accepted, it is something with which the appellant coped while previously in custody there.  I also accept Mr Stansfeld's submission that the Polish authorities will prevent Article 3 rights being breached, although I am more sceptical about how sensitive they will be to that position.

15.  Nonetheless, having considered the Article 8 contention, the impact on the child, the gravity of the offending, and the way in which the Polish Courts have considered sentencing in the past, I do not consider that they show that extradition would be disproportionate.  In my judgment, these are offences properly to be tried and dealt with in Poland.  The delay is not such as to show that the Polish authorities are in substance indifferent to the prosecution and are merely going through some necessary legal process to no real public purpose.  Although I understand the distress that the separation will cause to the family and the impact on the children, this is not a case in my judgment in which extradition would be a disproportionate interference with their rights.

16.  Accordingly, and notwithstanding Mr Henley's realistic and full submissions, this appeal is dismissed.

MR HENLEY:  My Lord, may I ask for public funding?

MR JUSTICE OUSELEY:  Yes, you may.