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
		13 May 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Coleman given on 27 February 2013 ordering the appellant's extradition to Poland in order to serve a sentence of 12 months' imprisonment which had been imposed for an offence of burglary.
2. The offence in question was a non-commercial burglary of what would appear to be shop premises and the value of the goods taken was something in the order, it would seem, of £500. The offence itself was committed in August 1997. It took 7 years for the appellant to be arrested and charged. Why that delay existed there is no evidence. It may be that the police in Poland did not obtain any evidence that the appellant was involved until a substantial period of time had elapsed. However, it is an unfortunate starting point. He was sentenced to a suspended sentence and there was a requirement that he pay compensation. He apparently discussed with his probation officer his decision that he would try to obtain employment outside Poland and wanted for that purpose to come to this country and he got the approval of his probation officer to do that. I put it that way because that was his evidence when he gave evidence before the District Judge because Article 8 was raised before the District Judge and she found him to be a truthful person.
3. It seems that he committed an offence in Poland during the currency of the suspended sentence and it was that, apparently, that led to the decision that the sentence should be imposed. We are not told what that offence was. All one can say is that if it was anything at all serious it is surprising that there was no accusation warrant if he had not been prosecuted for it or no conviction warrant if he had been dealt with in his absence because he had left the country by then. Be that as it may, it seems that the matter was dealt with in February 2006. However, he worked in this country but failed to pay any of the compensation that had been ordered and the requirement was that he pay that within 3 years. However, information was obtained from the Regional Court in Poland and it seems that the sentence was put into effect because of the combination, it would seem, of the commission of a further offence and the failure to pay any of the compensation.
4. However, that takes us to 2006/2007 but the arrest warrant was not issued until September 2011. It then took the Serious and Organised Crime Agency 10 months to issue it in this country. It was in August 2012 that the appellant was in due course arrested. He was granted bail. He unfortunately breached that bail by failing to surrender to the Magistrates' Court and that led to his arrest in January of this year and his remand in custody. Although he had not committed any offences in this country he had in fact received a caution because he had apparently resisted arrest when he was arrested for the breach of bail and had assaulted a police officer in the course of that. The result is that he has now been in custody since 11 January and so has spent some 4 months or so in custody.
5. The question is whether in all the circumstances it would be disproportionate to require him to return to Poland. He has made a life in this country. He has two children; one born in August 2004, that was before he left Poland, and one in March 2008, obviously since leaving Poland. He is close to those children and they would be devastated if he had to leave for a substantial period of time, and it would on the face of it be another 8 months that he has to serve in Poland. Of course, his wife would be able to look after the children provided she could find work or if she was entitled to any sort of benefit. It does not seem to be suggested that it would be reasonable to expect her to go back to Poland with the children; certainly that is not a matter that the District Judge was asked to consider or did consider. She accepted, as was inevitable, that the family would suffer hardship and distress and there would be a significant impact from the extradition.
6. But for the delay I have no doubt whatever that this is not a case that would surmount the hurdle which is directed as a result of the decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. The only question, as it seems to me, is whether the long delay does mean that in all the circumstances one can say that return would be disproportionate. It seems to me that the Polish authorities, and indeed the Serious and Organised Crime Agency, have to recognise that, particularly in cases where the requested person has developed a family life and has had children in this country over a significant period of time and has not misbehaved while in this country, expedition is essential. No explanation has been given for either period of delay, that is between the commission of the offence and the eventual dealing with it in 2004 and the breach of the suspended sentence by the commission of a further offence in early 2006 and the failure to pay anything towards the compensation and the issue of the warrant in 2011 and then some 10 months whilst the Serious and Organised Crime Agency got round to approving it here.
7. It seems to me in all the circumstances, bearing in mind the nature of the offending, which was a non-commercial burglary, serious enough but not the most serious, and bearing in mind the effect that this will have upon the two children and his wife, this is a case where it would on the facts be disproportionate to return.
8. As I have said, it is, in my judgment, important that the message goes out that delays of this nature where no explanation is given, particularly in a case such as this where it was known because he co-operated with the probation officer initially that he was coming to this country, there appears to be no excuse for the 4 years or so that it took for the warrant to be issued.
9. Accordingly, I propose to allow this appeal.
10. MS DRAYCOTT: My Lord, can I please ask for the usual costs order.
11. MR JUSTICE COLLINS: Yes, certainly.
12. MS DRAYCOTT: Thank you very much.