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
		20 February 2013

1. MR JUSTICE FOSKETT: There is currently a section 39 Children and Young Persons Act 1933 Order in place preventing the publication of the appellant's daughter's name and that order is to continue.
2. This is an appeal against the decision of Senior District Judge Riddle given on 10 December 2012 to order the appellant's extradition to Poland. The appellant is a Polish national born on 16 March 1980. The EAW was issued on 15 November 2011 and certified by SOCA on 2 March 2012, and he was not arrested pursuant to the warrant until 9 May 2012. In the warrant he is accused of committing an offence described at box (e) as being "actively involved in illicit trafficking in large quantities of psychotropic substances contrary to the Polish Penal Code and the Drug Abuse Prevention Act," which came into force on 29 July 2005 and apparently it has retrospective effect. It is said that the appellant intended to purchase and supply amphetamine in order to provide him with "a permanent source of income." The appellant is said to have been in possession of not less than one kilogram of amphetamine purchased from someone in two transactions for the purposes of its further distribution, and that occurred, it is alleged, between December 2003 and January 2004.
3. It will be apparent from the circumstances giving rise to the allegations against him that those circumstances occurred just over nine years ago. It is the delay since then that is relied upon to support the proposition that it would be oppressive to extradite him, and reliance is placed on section 14 of the 2003 Act. That provides as follows:

i. "A Person's extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have--

ii. "(a) committed the extradition offence (where he is accused of its commission) ..."

4. It is common ground that the threshold for establishing oppression is high. I have been referred to a number of authorities but I can simply, for this purpose, refer to the case of Gomes & Goodyer v Government of Trinidad & Tobago [2009] 1 WLR 1038, where it was said:

i. "The test for oppression will not easily be satisfied: hardship, which was a comparatively commonplace consequence of an order for extradition, is not enough."

5. In this case the appellant is not a fugitive from justice and it is recognised unequivocally that he is not the person who contributed to the delay that has occurred. It is fair to say there is no very clear explanation for the substantial delay, and it is equally not entirely clear when it was that the authorities in Poland started investigating this particular matter. Some further information supplied suggests that it could have been after 2007. If that is the case, then it was certainly within a period of about 14 months thereafter. As I say, it is not entirely clear why there was that delay and one should not of course speculate, but with these matters sometimes the authorities have to wait until the information is supplied to them on which to launch an investigation. Nonetheless, objectively speaking, there was a significant delay.
6. During the period since the offences are alleged to have occurred, the appellant, his partner and their four year old daughter have established themselves in the United Kingdom. I do not think I have been told what the nature of his business is but he has a business and there is no doubt at all that separation would cause real hardship on the part of the family, and his daughter in particular. The senior District Judge looked at the matter in some detail and, if I may say so, with an obviously sympathetic eye. He was dealing both with an Article 8 argument and the oppression argument but, for the present purposes, there is no material distinction between the two. It is appropriate to quote what he said:

i. "The impact upon family life is not to be considered only from the point of view of the person facing expulsion. The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. Here there is a child and a partner. It is often better for a child to have both parents available to assist financially, practically and emotionally. I have no doubt that extradition would be a great sadness for the daughter and for the partner.

ii. "However, there is a confident and important public interest in extradition. People accused of crimes should generally be brought to trial and the United Kingdom should honour its treaty obligations to other countries. That public interest carries great weight, but the weight to be attached varies according to the nature and seriousness of the crime or crimes involved. Delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life."

7. He went to say this:

i. "It was stated in HH that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life would be exceptionally severe. Here the consequences for family life involve real hardship. However, there is no evidence that this would go beyond the ordinary hardship suffered by any child when separated from a parent. Sadly, that is a very common life experience for many children.

ii. "In this case the allegation seems particularly serious. It involves a significant quantity of amphetamine. If convicted of this allegation in this country, the defendant would face a lengthy prison sentence and the interests of the child would not prevent such a sentence being imposed. The final conclusion is this. However sad, this case comes nowhere near meeting the threshold for oppression or for Article 8."

8. In those the circumstances, extradition was ordered.
9. As I indicated at the beginning of that quotation, it is plain that the Senior District Judge was not unsympathetic to the appellant's position. Neither am I. However, the senior District Judge spelt out clearly and accurately all the relevant considerations and came to the conclusion that he did. I cannot better his analysis. I agree with it and I adopt it as my own.
10. I fear that, in those circumstances, the appeal must be dismissed.