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
		19 February 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of a District Judge that the appellant should be returned to Poland in order to serve sentences totalling 2 years' imprisonment which had been imposed for three offences committed in early 2004. The three offences in question were breaking into a motor car and stealing property to the value of some 2,200 zlotys; blackmail, in threatening to beat someone up for the purpose, as it is put, of extorting debts; and possession of some ten and a half grams of amphetamine. The sentences imposed were suspended and one of the conditions of the suspension was that he should not commit any further offences during the period of suspension.
2. However, in February 2005, very shortly after the imposition of the sentences for the offences the subject of the warrant (they having been imposed in December 2004), he committed what is described as a further offence of theft, an act of minor significance. That resulted, apparently, in a sentence in April 2005 of 6 months' imprisonment but also led to the order that the sentences amounting to 2 years should be served. In fact, that order does not seem to have been made until 2006, because in early 2006 the appellant decided to come to this country in order to better himself. He came with his then partner, who had two children of her own, and they all came to live, and he to work, in this country. They have since married in 2009 and have a child who is now 3 years old.
3. The first ground of appeal was based on section 2 of the Act, it being said that the warrant did not properly specify the offences which led to the extradition request. The focus was on the theft of so-called minor significance which had led to the decision to require service of the 2 year sentence. However, it is clear from the warrant that the only offences for which extradition is sought are the three committed in February 2004. Apart from anything else, proper details are not given of the offence of theft in February 2005, and, as Mr Harbinson properly indicates, in any event, as I say, the warrant does not require extradition for that. Accordingly, the 6 months sentence imposed for that is not the subject of the extradition and it is common ground that he cannot serve that sentence if it purports to be consecutive to the 2 years upon which the warrant is based. If, of course, it was merely concurrent with those, then it makes little difference to the outcome, but I make clear that the extradition only relates to those three matters set out in E of the warrant.
4. In those circumstances, Mr Hawkes recognises that there is nothing to be gained from the section 2 argument. Indeed, I understand that it was raised before Ouseley J when this case came before him in November 2012 and he, having heard argument from Mr Hawkes, indicated that he was against Mr Hawkes but he gave no reasons at that stage. What he did was to adjourn the other argument upon which the appeal was based, namely that it would be disproportionate to return the appellant in the terms of Article 8 of the European Convention on Human Rights.
5. The basis upon which Ouseley J adjourned the matter then was to enable a report to be obtained upon the effect of the unfortunate illness of the elder daughter, Weronika, who is now 17 years old. She has what a medical report which has been obtained from a consultant paediatrician indicates are exceptionally complex medical needs and a complex neuro-disability. She has severe four limb cerebral palsy, relies upon a wheelchair pushed by a carer and is completely dependent on carers for all activities of daily living, including dressing, washing, feeding, toileting and so on. Furthermore, she has had other physical disabilities, in that her right hip was apparently excised in 2008 and she has a flail right leg which requires additional attention, together with marked deformity of her lower limbs. She clearly has, as the doctor indicates, very exceptional medical needs.
6. The appellant is her step-father but he provides essential care for her. The family home, which they own under a mortgage and which his employment services, has not been adapted to meet her needs and he is needed to transfer her and lift her, and, unfortunately, her mother is, because of her size and because of the mother's problems in being able to lift, unable to be give her the assistance which the appellant gives.
7. The report that has been obtained, and for which Ouseley J adjourned the case in November, is from a Mr Ahmed, who is employed by an organisation called Bradnet, which operates, as its name perhaps suggests, in Bradford, and is described in its logo as promoting equality and inclusion with disabled people. Mr Ahmed has indicated that because the appellant is the main carer of Weronika there would be disastrous effects upon the ability to cater for her needs were he to be extradited to Poland and indeed to be out of action, as it were, for the period when in prison serving the sentence which has been imposed. As Mr Ahmed says, the appellant's daily routine includes waking a 5.00 am to start getting Weronika ready for school, she has to be massaged to enable mobility, have her pad changed, toileting, getting washed, dressed and so on, she will be carried downstairs sometimes after 6.00 am, she will be sat in her wheelchair and given breakfast so that she is ready to be picked up for school. The school she is attending is a special school, obviously, to cater for her particular needs, and social services would not, according to Mr Ahmed, provide carers to carry out these tasks due to the moving and handling legislation and the property not being adapted. Indeed, apparently not only not adapted but not capable of being adapted in a way which would cater for Weronika's needs. There are therefore, as is obvious, exceptional circumstances arising in relation to Weronika in particular in this case.
8. There is also, one must not forget, a 3-year-old who has to be looked after, and the result of that, of course, is that it makes it that much more difficult for the appellant's wife to gain employment and to be able to earn enough to service the mortgage, and the result is likely to be that the home is lost. There is, of course, also the problem that if the appellant is removed to Poland then there are real concerns as to any rights that his wife and the children have to remain here and to receive public funding here because only if they are here as dependants of an EU national working here, or in their own right as working or seeking work here, do they prima facie have any right to be here.
9. On return to Poland (because in theory, of course, they could go back to Poland) the same difficulties in relation to Weronika's care and the inability of his wife to deal with her needs, having regard to her inability to carry the weight of Weronika, would equally arise, even if (although this has not been investigated) there were available in Poland sufficient facilities to look after her and the rest of the family while the appellant was in prison.
10. In these circumstances, it seems to me that the history of delay in this matter becomes of considerable significance. The decision to activate the suspended sentence was reached, it seems, a year after the commission of the additional offence of theft and the sentence imposed for it in April 2005. Quite why there was a delay of a year in deciding to activate the suspended sentence is unclear but by June 2006 the appellant had left Poland and come to this country.
11. In the statement that he has produced for the purpose of this appeal and which was produced, dated 8 November 2012, and so was available at the time of the hearing before Ouseley J, he says that he was not coping financially and so decided that he would leave Poland. He spoke, he says, with his probation officer and received permission to leave the country, no doubt on the basis that he should remain in touch. He says that he did remain in touch but after some 2 months (and it is not quite clear from the statement what was the date when that 2 month period began to run but it seems likely that it must have been once the decision had been made in early June to activate the suspended sentence) the probation officer told him he had to return to Poland, but he decided that he would not do that. He says that he found a job, he had signed a contract for the premises, in fact a flat, which he was occupying, and because he was the sole wage earner and he wanted to look after his family he decided that he would not go back to Poland.
12. In the circumstances, on his own admission, he is a fugitive from justice and, accordingly, as is accepted, would not be able to rely on section 14 of the Extradition Act in seeking to say that there was a bar to his removal. However, as it plain from the decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, delay is a matter that can be taken into account (even though failure to return to the country was culpable, in the sense that it was because the individual was a fugitive from justice) in deciding whether return is proportionate. However, as must be obvious, it must take a strong case indeed for it to be decided that return would be disproportionate where the individual in question had deliberately chosen not to return.
13. However, that decision was now some six and a half years ago. It was not until August 2007 that the domestic arrest warrant was issued and there was yet further delay until December 2008 when the EAW was finally issued. There has been no explanation for the delay between June 2006 and December 2008, and since it is not disputed, and has not been disputed that the appellant's evidence given in his witness statement (that he was in touch with the probation officer and so it was known that he was in this country, it is not a question of the authorities in Poland not being able to know where he had got to) on the face of it there is no excuse for the delay in failing to issue the warrant until December 2008, precisely two and a half years after the activation of the suspended sentence.
14. However, that is not the end of the delay because it was not until June 2012 (that is to say three and a half years after the issue of the EAW) that the Serious and Organised Crime Agency certified the warrant, and that led to the appellant's arrest in August 2012. It was known that the Article 8 ground was to be relied on and it must have been known and appreciated by the respondent that there would be reliance placed upon the delay but nothing has been put forward to explain what on the face of it, in my judgment, is unacceptable delay both by the Polish authorities but more particularly by the Serious and Organised Crime Agency in failing to do anything for some three and a half years.
15. The result has been, of course, that Weronika was some 10 years old back in 2006 when all this ought to have been pursued and the problems which have led to the appellant's wife's difficulties in lifting did not occur until 2008 when she developed problems. If there had been a timely application it is likely that there would have been no possibility of a successful Article 8 claim being pursued and hard though it would have been, nonetheless the likelihood is that return would have been ordered. The offences in question are undoubtedly relatively serious, albeit the amount of money involved in the first charge is not enormous, the blackmail is indeed a serious matter on its face. A small quantity of amphetamine is clearly not a particularly serious offence but that is subsumed in the two more serious matters.
16. There has been additional evidence which on the face of it could and should have been put before the District Judge. The appellant complains that he did raise these matters with the solicitor, who was the duty solicitor, who represented him below but that solicitor did not put any of these matters forward as a possible Article 8 claim. Indeed, there is no judgment from the District Judge because none was needed since, albeit there was no consent to extradition, there was no bar raised. However, what the appellant said (and when the matter was heard before Ouseley J there was a considerable degree of scepticism indicated about this) was that the problems in relation to Weronika and the difficulties upon his family were raised when he made a bail application. What I understand Ouseley J indicated was that if that had happened then surely the District Judge ought to at least, if he could, reconsider the matter and at the very least have asked the solicitor to make further investigations because it should have been obvious in those circumstances that there was the possibility of an Article 8 claim. I too am surprised that the District Judge did not take any steps because, thanks to the respondent, the clerk's notes have now been produced and they show that certainly nothing was raised at the hearing itself but that the appellant is quite right that he did raise the matters when he made his bail application. It is in those circumstances surprising, to say the least, that the District Judge did not reopen the matter. It is even more surprising that, having been informed of those matters, the representative did not at the very least indicate that he or she needed to make further inquiries and so an adjournment was sought of the extradition hearing.
17. Privilege has been waived and requests have been made of the solicitor who then represented the appellant but there has been no response. That shows, on the face of it, a failure of the duty by that solicitor, and I hope some inquiries will be made to see whether that solicitor should indeed remain as one who is available to appear in extradition cases at Westminster Court. On the face of it (and I emphasis on the face of it because, of course, I have not heard any details) there are real concerns about the way that solicitor acted in connection with representing this appellant before the District Judge.
18. The result of all of that is that it is accepted, and properly accepted, by Mr Harbinson that this is not a case in which it would be appropriate to seek to rely upon the Fenyvesi test as to whether additional evidence can be probably taken into account. In my view, it clearly can and should. This is undoubtedly an exceptional case. Were it not for the delay, it may well be that, hard though it would be, I would have taken the view that there was not sufficient to justify it being said to be disproportionate to return but the delay has, in my judgment, tipped the balance and it means that on the facts, despite the relatively serious nature of the offences, it would not be proportionate to require the appellant to return to Poland.
19. Perhaps this is a warning for both the Polish authorities and the Serious and Organised Crime Agency of the need to act speedily in seeking return of offenders, either to face prosecution or to serve sentences. There may well in many cases be a good excuse for delay where whereabouts are unknown but this not that sort of case because whereabouts have been known for at least the last 6 or nearly 7 years now. As I say, in those circumstances, I am persuaded that this is a case where the section 8 bar applies and, accordingly, I propose to allow this appeal.
20. Do you want the usual order?
21. MR HAWKES: I am very grateful, my Lord.