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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gorczowska, R (on the application of) v District Court In Torun Poland [2012] EWHC 378 (Admin) (08 February 2012)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/378.html
Cite as: [2012] EWHC 378 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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| THE QUEEN ON THE APPLICATION OF GORCZOWSKA | Claimant | |
| v | ||
| DISTRICT COURT IN TORUN POLAND | Defendant |
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Mr B Isaacs (instructed by Kaim Todner) appeared on behalf of the Defendant
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- MR JUSTICE COLLINS: This is an appeal against a decision of the district judge that the appellant should be extradited to Poland in order to serve a sentence of 10 months' imprisonment which was imposed upon her in August 2006 for possession of just over 4 grams of amphetamine. The sentence was imposed but suspended on the condition that during a probationary period she remained under the supervision of a probation officer and was obliged to undergo withdrawal treatment and to perform paid work.
- She was then 17. Her father was in this country working, and he, she says, gave her an 18th birthday present which was a ticket to come to join him in this country. Accordingly, she left Poland, breaching the conditions under which the sentence had been suspended because she failed to inform her probation officer. Furthermore, she was then still taking amphetamine and so was still clearly committing offences by such possession.
- She has since then been in this country. Some 11 months ago, she gave birth to a child as a result of what appears to have been a relatively short-lived affair with a black United States soldier who was stationed in this country, and has been from time to time here. Once he appreciated that she was pregnant, he did not take any responsibility for the child, although it appears from her statement that he has seen her from time to time when he has been in this country. But he is not available as someone to look after the child.
- Her father works on night shifts. She herself has a job here, which seems to be for two days a week. She says that there is, in the circumstances, no one available to look after the child. So far as the situation in Poland is concerned, her mother essentially gave up on her when she was 16, in part because of her addiction to drugs, but in any event her mother had not treated her very well, she says, during the whole of her life. Suffice it to say that her mother is not someone who will be in a position to, or desiring to, look after the child if they are returned to Poland. Equally, she has a sister in Poland, but her sister's husband is apparently an extremely violent man who has served double figure sentences for a number of offences, including attempted murder.
- I should say that it is said on her behalf in a statement put forward that she is not now taking drugs, particularly amphetamines; she has weaned herself off those drugs. She has, unfortunately, committed offences in this country. She appeared before the Crown Court, and for an offence of affray and witness intimidation she was sentenced to 9 months' imprisonment which was suspended, so she is not someone of good character here.
- The first problem that arises is that she did not raise any of these matters before the district judge. She was advised then that she had no basis for relying on Article 8 of the European Convention on Human Rights or indeed any other ground for contesting the extradition. Accordingly, the first point I have to consider is whether it is open to her to put forward evidence which was undoubtedly available to her at the lower court. The general principle that this court applies is that, if such evidence was available, it is normally not regarded as open to an appellant to produce it for the first time on appeal. Essentially what can be described as a Ladd v Marshall approach is what is usually adopted.
- The problem here, as it seems to me, is that this evidence relates to an alleged breach of her human rights. This court is a public body and, in accordance with the terms of the Human Rights Act, has to take account of a party's human rights in deciding any case. That seems to me to mean that it is more likely that the court should take account of evidence which goes directly to human rights, even if that evidence was not, but could have been, produced below. It does not mean that in every case it would be appropriate to take it into account, but it seems to me that it would not normally be right to ignore it. To be fair, Mr Isaacs recognises, or at least has not sought to challenge, that I having seen it am entitled to have regard to it. He says that the fact that it was not raised below is a matter that can go to its weight, and most importantly, of course, it has not been tested as, had it been given as evidence below, it could have been. Thus one is dependant entirely upon the appellant's say-so as to the matters upon which she now seeks to rely.
- It seems to me that she has had a very unfortunate past, as evidenced on her account of self-harm, and Miss Lindfield confirms that marks on her body have been seen by those instructing her and they are consistent with a degree of self-harm in the past. However, one has to look at this case on this basis: she was given the chance in Poland. It is said by Miss Lindfield that this was a relatively trivial offence: 4 grams of amphetamine, no question on the face of it of supplying, it was for personal use. Indeed, she says she was using intravenously about 5 grams a day, so this would appear to have been one shot, if I may put it that way. But it is not possible for me, and not appropriate for this court, I would have thought, other than in the most exceptional circumstances to go into the question of the correctness of the sentence imposed.
- It is said that this was a sentence that was disproportionately high. I do not know what material was before the Polish court. It may well be, and on the evidence that she produces it seems decidedly possible because she has apparently been using drugs since she was 14, that she had previous convictions, and it may be that that was what led to the high sentence imposed. One knows not what the Polish approach to drug offences such as this is and whether this was a sentence which is in line with the sort of sentences that could be expected. As I say, that is not a matter in which it would be right for me to go. I am faced with a judicial decision that she is to serve a 10-month sentence.
- I should add that I have seen a motion put before the Polish court on her behalf dealing with the up-to-date situation, indicating that she is no longer taking drugs, she has been working, and thus, it is said, despite her ignoring the conditions and absconding from Poland as she did, she has, in effect, done what the conditions required her to do. That motion was considered the day before yesterday, but the Polish court rejected it. I am told that there is an appeal against that decision, but it is perhaps of some note that the Polish court decided that, even on the material that was put before it on her behalf, the sentence was still one which ought to be served.
- The main thrust of the submission made on her behalf is that her condition, and more particularly her 11-month-old child's condition, is such as means that extradition now would be disproportionate. If one adopts the approach in Norris v United States, then one is faced with the proposition that removal or extradition would only be disproportionate in respect of Article 8 on the basis of a very high threshold indeed. Indeed, it would need an exceptional case for that to be appropriate. The Supreme Court is considering whether that approach ought to be modified in the light of the cases decided on the immigration law, in particular the position of children upon whom the incarceration of a parent can have a damaging effect.
- It seems to me that the approach that I ought to adopt at the moment, pending the decision in the Supreme Court, is to apply a standard which is lower than that in Norris and consider for myself whether, in the circumstances of such a case as this, extradition would be disproportionate, because that is the test that has to be applied by the court in deciding whether there is a breach of an individual's human rights. In that decision, I have to take account of the importance of ensuring that those who are convicted in member states of the European Union and sentenced to imprisonment should not be able to escape those sentences by coming to this country and perhaps being here for a period of time and having children here or working here or setting up a family life here. That would be contrary to the approach that is needed in order to comply with the framework decision in relation to the extradition to member states. Thus, in circumstances involving extradition, it is right that proportionality should be considered with that very much in mind, which does mean that, when considering proportionality, one has to apply a somewhat higher threshold than might be appropriate in other cases such as immigration cases where there has not been a serious breach of any criminal laws.
- It is difficult not to have a considerable degree of sympathy for this appellant, notwithstanding that to an extent she has been the author of her own misfortune by leaving Poland and not complying with the conditions when she must have known that the result of that would be likely to have been the imposition of the sentence. The question is whether the situation of her child means that that is now disproportionate. In my judgment it is not. It is open to her to take the child with her to Poland. I appreciate that there are problems with who should look after him there, but the Polish state, which itself is a signatory to the European Convention, will have means, I am sure, whereby her child can be looked after.
- There is an added problem, I am told, that the child is black, or rather the father is black so the child is also noticeably coloured. That is an added problem in a country such a Poland. Equally, the period is, at most, 10 months because there may be scope, once she is there, for a lesser sentence on the basis of an application to the court in her presence if the circumstances are strong, and it may be that the appeal that is pending may succeed, but the most that she will serve is 10 months (I accept, a long period for a child of 11 months). On the other hand, there are ways in which the child can be looked after in this country during her absence. Whether her father or anyone else can do that, I do not know. Certainly, she has been working and her father has been working, so some arrangements must have been made to look after the child while one or other of them was not present. She does not descend into any detail so far as that is concerned.
- In all the circumstances, although, as I say, it is difficult not to have some sympathy with her looking at it generally, it seems to me that applying a test which has to have regard to the purpose of extradition, this is not one in which I can say that it would be disproportionate for her to be extradited as the Polish authorities desire.
- Miss Lindfield also raised an argument based on delay, saying the length of time that she has been here before the Polish authorities have caught up with her means that it would be oppressive to return her. There are two answers to that: first of all, it adds nothing to the Article 8 claim, and secondly on the authorities it is very difficult to say that it gets anywhere close to establishing that it would be oppressive. Furthermore, the evidence which was not produced below is not, in my view, to be admitted in this court as going to that issue, as opposed to the human rights issue. But essentially, as I said to Miss Lindfield, the argument based on that lapse of time and oppression in the circumstances of this case adds nothing. This is Article 8 or nothing, and regrettably I have decided it is nothing. Therefore this appeal is dismissed.
- MS LINDFIELD: My Lord, may I have a public funding certificate?
- MR JUSTICE COLLINS: Yes, of course.