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 a decision of District Judge Zani given on 20 December 2012, whereby he ordered that the appellant be returned to Poland in order to serve the balance of sentences imposed for a number of offences of burglary. The warrant shows that the offences in question, at least by virtue of the number of them, can be regarded as indeed relatively serious. They were committed in May 2007 and the balance that has to be served is 1 year, 2 months and 13 days' imprisonment. The total that was imposed was 2 years. So about half has already been served. The argument put before the District Judge, and repeated before me, is that to return would contravene section 14 of the Extradition Act, in that there has been delay and that the delay renders it oppressive for the appellant to be returned.
2. The District Judge decided that the appellant was a fugitive from justice, which, of course, gravely affects his ability to rely on section 14. He served, as I have already indicated, something over 9 months in prison and he told the District Judge that he did not remember whether he was prohibited from leaving Poland after his release from prison and he accepted that he was waiting to learn when the authorities wanted him to surrender to serve the balance. He asserted that he told the authorities of his address in this country (that is the same address that is in the European Arrest Warrant) and they had his family address in Poland but he chose to come to this country in order to obtain money by working here and he has done so since, and he provides for his wife and children who remain in Poland. It is plain that he was, on his own evidence, aware that he was liable to have to serve the balance of the sentence and notwithstanding that he chose to leave. He says that he learnt from his wife that there were further court proceedings in 2009 and 2010 but that he was, he said, not obliged to attend. The District Judge decided, in relation to whether he was a fugitive, as follows:

"Box B of the EAW states that the enforceable judgment was issued by the Court on 14 August 2008. Is it mere coincidence that he chose to come to the UK the following month and has not returned to Poland ever since, or was he well aware of the situation? Box F of the EAW states that the limitation period is suspended as the requested person ... 'is in hiding'. As previously mentioned, the Polish authorities have accurately recorded his Polish and UK addresses in box A of the EAW. The appellant says that he has been in regular contact with his wife but I consider that it is a reasonable inference to draw that she will have told him that the Polish authorities were looking for him (hence the declaration in the EAW that he has been 'in hiding'). I find that he is a fugitive from justice and therefore section 14 protection is not available to him."

3. It seems to me that notwithstanding that he had asserted before the District Judge that he had told the authorities where he was, that the District Judge was entitled to find as he did on the facts, and he clearly does not accept the full extent of the evidence given by the appellant. However, the District Judge went on to consider the situation if he was not to be regarded as a fugitive from justice. He set out the dates. The offences were committed in May 2007, enforceable judgment August 2008, EAW issued October 2011. Reliance was placed on that by Miss Herbert, who represented him before the District Judge, as she has represented him before me, but he disagreed that that amounted to culpable delay. Certainly the 3 year delay is unfortunate but in looking at the matter as a whole, that sort of delay is not generally sufficient to be regarded as culpable, and one does have to have regard to the assertion by the Polish judicial authority, which this court will be inclined always to accept as coming from a judicial authority unless there is very strong evidence to show that it is for whatever reason not reliable.
4. Accordingly, I have, as the District Judge decided, doubts as to whether this delay could in any circumstances be regarded as culpable and so giving rise to a section 14 claim. However, even if the delay was sufficient to give rise to a claim under section 14, it has to be shown that to return would be oppressive. True it is that the family would lose its breadwinner for the time that he was in custody in Poland, nonetheless they have remained in Poland and I cannot believe that there is nothing available to look after families of parents who are properly imprisoned in Poland and that they are simply left to starve. That would not be a situation which a civilised State would countenance, and there is certainly no evidence that that would be the position in Poland.
5. It seems to me in all the circumstances that the decision of the District Judge cannot be criticised and that harsh though it might be there is no question of this amounting to oppression.
6. A separate argument based on Article 8 has not been maintained, and not surprisingly, because it is clear that, as I say, there are no family members here to be affected and there is no reason why it should be regarded as disproportionate for the appellant to be removed.
7. Accordingly, this appeal is dismissed.
8. I grant the usual order.