England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/02/2012

The Honourable Mr Justice Treacy :

1. This is an appeal from District Judge Evans sitting at the City of Westminster Magistrates' Court on 3^rd August 2011. On that day the judge ordered the Appellant's extradition to Poland pursuant to a European Arrest Warrant issued by the Respondent. The Appellant gave evidence at the hearing and was cross examined. The warrant concerns three allegations of dishonesty dating back to June 2001. The warrant itself was issued on 15^th February 2009. The Appellant asserts that her extradition is oppressive by reason of the passage of time.
2. In brief the grounds of appeal claim that the judge was wrong to decide that the Appellant had "evaded arrest" by the Polish authorities. Alternatively the judge was wrong to decide that "evading arrest" prohibited the Appellant from relying upon the passage of time in the same way that a finding of fugitive status would. It is further argued that the judge was wrong to decide that it would not be oppressive to order the Appellant's extradition.
3. The facts show that the Appellant is accused of making false representations in July 2001. There are three offences. Two of them are alleged to have been committed jointly with another person. A complaint was made to the Polish police in February 2002. The Appellant was interviewed twice by the police as a witness in April and May 2002. On the latter occasion she was asked to give handwriting samples. She then closed down her business, left her family, and came to this country in June 2002. In August 2003 she was joined here by her husband and two of their three children.
4. There is no evidence that she told the police that she intended to leave Poland. But not formally being a suspect, she did not need permission. The husband was spoken to by Polish police in January 2003. He told them his wife was living and working in the UK. On 23^rd February 2003 a decision was taken to charge the Appellant with the three offences which now appear on the warrant.
5. On 31^st October 2003 the Appellant's eldest daughter was questioned by the police. She said she was not in contact with her mother and only knew that she was abroad. She said she did not know where she was. The eldest daughter joined the Appellant and the family in the UK in December 2003.
6. On 5^th May 2005 the Respondent ordered a domestic search for the Appellant. In 2006 the Appellant travelled back to Poland using her identity card. She said that she was not told of any outstanding charges against her. In July 2007 an Arrest Warrant was issued in Poland relating to the Appellant. In 2008 the Appellant again travelled openly to Poland, using her Polish identity card. The purpose of her visit was to renew details on the card. At no point on this visit was she told that she was wanted on suspicion of any offences.
7. As already stated, on 12^th February 2009 the European Arrest Warrant was issued. This led to the arrest of the Appellant on 31^st March 2011. At the hearing the District Judge made the following findings:

"5. (1) Just prior to the defendant's departure from Poland she was asked to supply, and she did supply handwriting samples to the police. These were presumably wanted for the purposes of seeing whether it could be proved she was responsible for a particular piece of writing or possibly for elimination purposes. To have left Poland so shortly afterwards (now that we know that charges have been formulated) is suspicious.

(2) She came to England in June 2002 which is some 2 years before Poland joined the EU (01.05.04). She had no visa but entered as a tourist. She travelled alone and in doing so she abandoned her husband and children in Poland. That is suspicious. She then 'over stayed' until her presence became legal from 1^st May 2004.

(3) I consider it highly improbable that in the defendant's husband's police interrogation he was not asked to give the police the defendant's contact details and even more improbable that he did not tell his wife (the defendant) about the police interest in her.

(4) I do not believe that the defendant's daughter, Agnieszka, was telling the truth when she told the police she did not know the whereabouts of her mother. If, contrary to that belief, she was ignorant of her mother's exact location i.e. what she told the police was literally true, then I consider it highly probable that she knew how to make contact with her mother, but made the positive decision not to disclose that information.

(5) Agnieszka travelled to England shortly after her police interview and went to stay with her mother, this defendant. So by this time she knew how to contact her mother. I find it incredible that the defendant did not learn from her daughter of the police interest in her.

(6) When the defendant gave evidence on this point I found her very shaky. I am completely satisfied Agnieszka told her mother that the Polish police were looking for her. I am certain that from at least 2003 the defendant has known the Polish police have been after her and that she is suspected of having committed offences relating to her operation of her financial bureau and about which she had been questioned as a witness.

6. The circumstances here are not such that this court is satisfied to the criminal standard that the defendant 'fled Poland (although I consider that highly probable) or has concealed her whereabouts' but the court is satisfied she has 'evaded her arrest.' Evading means 'to get away, escape or to escape by artifice, save oneself from, to elude, to avoid encountering...

8. If, contrary to my view, it is determined by a higher court that the defendant did not 'flee, conceal or evade' then it becomes necessary to consider whether it would be oppressive now to order her extradition. As I am quoted as saying in Marcho Secchi v Deputy Professor of the Republic of Italy [2010] EWHC 521 (Admin) at paragraph 24 if this was not evading then it was "pretty close and akin to evading"…

13. The defendant has not satisfied the court that it would be oppressive to order her extradition having regard to the passage of time that has elapsed since the offences were allegedly committed by her."

8. As will be seen, the judge did not make a finding that the Defendant had fled Poland or concealed her whereabouts, but he was satisfied that she had evaded her arrest. The first issue is whether the District Judge was entitled to find that the Appellant had evaded arrest. The Appellant correctly submits that there was no finding that the Appellant knew she had been charged in Poland, although there was a clear finding that she was aware that the police were "after her" and that she was suspected of having committed offences relating to the operation of her financial bureau.
9. It was argued that on the evidence before the judge he should not have found that the Appellant had evaded arrest. The only direct evidence came from the Appellant, who denied knowing that she was wanted in Poland before her arrest in March 2011, and who gave evidence of the two trips to Poland which, it was argued, were inconsistent with an attempt to avoid arrest in the knowledge of outstanding criminal proceedings. It was emphasised that when she left Poland in 2002 she had been interviewed as a witness and no charge had been laid against her.
10. It is argued that the District Judge made his findings on the basis of speculation or unsupported inference. In any event, even if the District Judge was entitled to draw such inferences, knowledge on the Appellant's part that the police were after her and that she was suspected of offences should not support a finding that she evaded arrest when the Appellant had taken no positive steps to evade arrest.
11. This court will be slow to intervene in first instance findings of fact, particularly those made after live evidence has been heard and assessed. However there will be cases where such intervention is appropriate. The question is whether this is such a case. In my judgment, the District Judge was not confined to the evidence given by the Appellant, but was entitled to draw inferences from the totality of the evidence available to him, taking account of the fact that in some important respects he did not find the evidence of the Appellant to be credible. I consider the process he adopted to be one of proper inference rather than improper speculation. The matters set out at paragraphs 5 and 6 of his judgment are findings of fact and conclusions to which he was fully entitled to come.
12. At paragraph 6 the judge adopted an appropriate definition of "evading". On the judge's findings, the Appellant knew that the police were investigating criminal matters. On her second encounter with the police handwriting samples were taken. Very shortly after that she closed her business, left Poland and came to this country with little or no English, and on a tourist visa which she overstayed. In the meantime her husband and two young children were left behind in Poland.
13. When those findings are taken together with the judge's findings as to what she must have learnt from her husband and her daughter as to the police interest in her, the picture is one which the judge could legitimately construe as evading arrest. The judge was aware of the later visits to Poland. By the time of the first visit no internal warrant for arrest had been issued. By the time of the second visit a warrant had been issued, but it is well recognised that the organs of state are not to be regarded as some omniscient monolith.
14. I conclude that the judge was entitled to find that the Appellant had evaded arrest. The decisions in Secchi v Italy [2010] EWHC 521 (Admin) and Boismard v Poland [2011] EWHC 1454 (Admin) are distinguishable on the facts in assessing whether this Appellant evaded arrest.
15. This brings me to the second point raised by the Appellant, which is that even if the judge was entitled to find that the Appellant evaded arrest, he wrongly found that the bar under s14 was not available to her. The submission is that the type of person contemplated in Lord Diplock's first category in Kakis v Cyprus [1978] 1 WLR 779 and in Gomes v Trinidad and Tobago [2009] 1 WLR 1038, is a person who has taken deliberate action and should be contrasted with someone who has merely failed voluntarily to surrender to arrest. Reliance is placed on Secchi and Boismard for the proposition that this category of person is not precluded from relying on s14. The correct approach in such a case is to take such an Appellant's conduct into account as a factor when considering whether it would be oppressive to extradite.
16. As I have already stated, the factual situations in Boismard and Secchi were different. In this case the judge made a series of factual findings at paragraph 5 which led to the conclusion that this Appellant was evading arrest. In circumstances where she was aware that an investigation was ongoing, she had left her settled life precipitately, was well aware of continued police interest in her, and took no action despite knowing of their desire to trace her.
17. In Boismard and Secchi the District Judge did not find that the Appellant was a classic fugitive, whereas in this case he did. In the circumstances I do not need to consider further the Respondent's additional submission based on the observations of Elias LJ at paragraph 16 of Dare [2010] EWHC 366 (Admin) to the effect that the three categories of deliberate flight identified in Kakis, namely fleeing the country, concealing one's whereabouts, and evasion of arrest, may not be exhaustive.
18. Accordingly, since both Kakis and Gomes make clear that save in the most exceptional circumstances the court will not apply the s14 bar, I do not consider that the District Judge fell into error in holding that the Appellant could not rely on s14.
19. The Appellant also argued that the judge was in error in holding that it would not be oppressive to order the Appellant's extradition. Her failure on the first two points renders this argument moot, but the Respondent accepted at the hearing that I should consider this argument on a contingent basis. I accept that the correct approach is to look at all matters in the round, acknowledging that an accumulation of individual factors may in total amount to oppression. See Italy v Merico [2011] EWHC 1857 (Admin) at paragraph 16.
20. The Appellant relied on the fact that she had not fled Poland. She had left at a time when there were no restrictions placed on her movement and the judge had not been sure that her actions had constituted fleeing. It was pointed out that the offences were now over ten years old and that the allegations involved relatively low monetary values. The judicial authority was said to be culpable of unjustified delay, which is capable of being a relevant factor in a borderline case. Reliance was placed on the two visits to Poland and the suggestion that they engendered a false sense of security. It was pointed out that the family had arrived in this country in 2003 and that the younger children had grown up in this country. The eldest daughter, who had been 19 in 2002, had now settled here with a child of her own.
21. The Appellant has been in this country for nine or ten years with no convictions and a single caution for a minor offence. She has learnt English, she has worked here, she is the family's main breadwinner, and gives financial support to her children at university.
22. The Respondent disputes that this accumulation of circumstances crosses the threshold from the hardship occasioned in many extradition cases so as to enter into the realm of oppression. If the court is considering oppression, it is entitled to look at the circumstances in which the Appellant left Poland as well as all the other factors in the case.
23. As Norris v United States of America [2007] EWHC 71 (Admin) makes clear, the word "oppression" imports a very high standard into the case. I am wholly unpersuaded that this case falls into the category where extradition would be oppressive. There is nothing exceptional in the circumstances of the Appellant and her family in the establishment of a family life in this country. The delay in the case has been caused by the Appellant leaving Poland in the circumstances described, and failing to make any contact with the authorities, whom she knew where looking for her.
24. Having considered a letter from the Judicial Authority dated 27^th May 2011 which was before the District Judge, I do not consider that the Judicial Authority was guilty of unjustified delay, although it cannot be said that they acted with alacrity. In any event I do not regard this as a borderline case.
25. As to the visits to Poland, the information as to these was before the District Judge and he will have had it in mind. It did not operate so as to lead him to conclude that extradition would be oppressive. The mere fact of a visit or visits to the Requesting State does not necessarily induce a false sense of security, see for example Hasiec v Poland [2009] EWHC 3495 (Admin). There was certainly no evidence to suggest that this Appellant had been misled or given a reasonable expectation by the Judicial Authority that no action would be taken in relation to the 2001 matters. The fact of the visits was a factor to be weighed along with the other factors in the case, but I do not view it as one which is so weighty that it leads to the conclusion that the judge ought to have decided the issue of oppression differently.
26. This is not a case where the judge should have made a finding of oppression and held that on that ground there was a bar to this Appellant's extradition. Accordingly, this appeal fails and is dismissed.