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 pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Purdy given on 20 December 2012, whereby he ordered that the appellant should be returned to Poland in order to serve sentences totalling 2 years imposed for two offences of burglary and attempted burglary of non-domestic premises committed in September 2003. The value of what was taken in the first burglary amounted to some 4,000. The other was an attempt which did not succeed because the appellant was caught in the act. The appellant pleaded guilty to the offences but for whatever reason the decision of the court was that the 2 year sentence of imprisonment should not be put into immediate effect. That, I think, is something which is not uncommon in Polish criminal procedure. The reason perhaps is immaterial but they certainly were not suspended sentences.
2. According to the statement made by the appellant, he, having pleaded guilty, was advised that he would be notified of the date on which he should surrender to prison. He remained in Poland until January 2007, when he decided to leave and come in this country because he was finding it difficult to earn his living there and to provide for his family, particularly as in January 2007 he had apparently lost his job. He has a wife and when he left Poland they had one child, who is now some 13 years old. Since being in this country they have had a second son, who is now 2 years old. It is clear that he left Poland knowing that he was due to serve these sentences and he failed to notify the authorities either that he was leaving or where he was going when he left. Accordingly, he can really not argue that he is other than a fugitive from justice. That in itself does not mean that it is impossible for him to succeed in relying on Article 8 to avoid his removal but it, for obvious reasons, creates a substantial hurdle in his way.
3. It seems that unfortunately his wife has suffered health problems as a result of lumps discovered in her breasts, fortunately not so far lumps which are other than benign. Furthermore, Nathan, the younger child, has a serious and apparently unusual heart condition which has resulted in him being treated at Great Ormond Street Hospital and he has to visit a doctor and receive investigations to see how he is getting on every 6 months or so, and the result of his condition has left him somewhat weak and under-developed and prone to suffer illnesses.
4. It is obvious in those circumstances that the return of the appellant to serve the 2 year sentence would create real hardship for his family. It is doubtful if he were returned that his wife and children would have any proper basis for being able to remain in this country since they are here as his dependants and he is here because he is working and exercising his Treaty rights as a citizen of an EU member. There is, however, no reason in principle why they should not return to Poland.
5. It is said that if they did have to return they are gravely concerned that there would be a risk they would not be able to provide Nathan with the same standard of health care that he is currently receiving here because of a lack of medical insurance in Poland, and further, there are, it is said, problems in Poland in receiving assistance from the State where a parent (in this case the breadwinner father) is in custody. However, I am bound to say that those who leave Poland in order to better themselves and to avoid serving a sentence properly imposed for criminal behaviour cannot expect to receive enormous sympathy if they are then due to be returned, and harsh though it may be for their family, it is in principle no harsher for them than if they had remained in Poland and the law in Poland had been put into effect. In such circumstances, as it seems to me, it would take a very strong case indeed to justify a decision that to return would be disproportionate, and that is entirely consistent with the approach set out by the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, particularly the observations of Lord Judge, which, to my mind, are not dissented from by the majority of the other members of the court.
6. All the relevant matters were put before the District Judge by Mr Hearn, who then represented the appellant and who has considerable knowledge and experience in extradition matters. The District Judge, having considered all the relevant matters, concluded as follows:

"This court is very well aware of the huge increase of "Article 8" challenges to extradition requests since Norris but undeniably since HH earlier this year. The jurisprudence may therefore be properly described as in a state of some flux. As always each case must be considered on its own unique set of facts. All leading cases acknowledge the anxiety extradition causes (even for those accepting guilt) to the extraditee and wholly innocent family unit. One cannot but be moved by the anguish many face. However, especially as here following conviction, public confidence in the administration of criminal justice, within this jurisdiction and abroad, requires that the mere existence of national boundaries does not prevent the victims of crime being afforded justice as well as the deterrent element to would be criminals the knowledge justice will catch up (even if belatedly) affords to the wider community."

7. While I am not sure that it is right to describe the jurisprudence in a state of some flux, since, as it seems to me, the principles are set out, as I have said, by Lord Judge in HH and it is made clear that the hurdle that has to be surmounted by one who seeks to argue that it would be disproportionate to return is a high one. Nonetheless, the District Judge is absolutely correct in saying that each case has to be considered on its own facts, and there have been a number of decisions (I have made some and other judges in this court have made others) dealing with the applicability of Article 8 on different facts but the principle, as I say, and the correct approach seems to me to be set out in HH, and one then has to go on to consider whether on the facts of an individual case it is proper to say that the hurdle is surmounted.
8. I am afraid I agree with the District Judge in this case that however harsh it may seem to be, the hurdle has not been surmounted here, and I am afraid it is open to the appellant's wife and children to return to Poland and for him to serve his sentence there. This appeal accordingly must be dismissed.
9. Do you require the usual order?
10. MR NERESHRAAJ: I am grateful.