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
		1 March 2013

1. MR JUSTICE KEITH: On 26 July 2012, the appellant, Marcin Reczycki, was arrested pursuant to a European Arrest Warrant issued by the Regional Court in Lodz, Poland. The warrant had been certified by the Serious Organised Crime Agency on 15 August 2011. The warrant was what is colloquially called a conviction warrant. It sought Mr Reczycki's extradition so that he could serve sentences of one year's imprisonment and six months' imprisonment respectively for what under our law would be offences of theft of property worth only marginally in excess of £200. Those sentences had been suspended. The first sentence was activated following Mr Reczycki's conviction for the second offence. The second sentence was activated when he failed to pay compensation to his victim and failed to live at a specific address. An extradition hearing took place at the City of Westminster Magistrates' Court on 30 November 2012. District Judge Arbuthnot reserved judgment, and on 12 December she ordered Mr Reczycki's extradition to Poland. He now appeals against that order.
2. Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, his extradition is governed by Part I of the Act. There is only now one ground of appeal, an earlier ground of appeal relating to the district judge's refusal to adjourn the hearing at the magistrates' court having been abandoned. Section 21 (1) of the Act - which is in Part I - required the court to decide whether Mr Reczycki's extradition to Poland would be incompatible with his rights under the European Convention on Human Rights. The only remaining ground of appeal is that the district judge should have concluded that his extradition would be a disproportionate interference with his right - and that of his family - to respect for their private and family life protected by Article 8 of the Convention.
3. The relevant facts are that Mr Reczycki came to this country in January 2006. After a few months he moved to Middlesbrough. He has been living there ever since. At the time of his arrest, he had had the same job as a machine operator for five years. In the autumn of 2006, he met the woman who was to become his fiancée. Mr Reczycki claims that they became engaged in April 2011 but never got around to marrying. What is not in dispute, though, is that their son was born on 24 August 2012, a month or so after his arrest. His fiancée has been on maternity leave since then, and she is the primary carer for their son. There is some help available to her as Mr Reczycki's brother lives with his own family less than a mile from where Mr Reczycki and his fiancée live.
4. I should add that Mr Reczycki is being treated for a vascular condition which requires lifelong medication. He has to have an endoscopy every six months, and his next one is due to take place on 18 March. However, it has not been suggested that adequate treatment would not be available for him in Poland if he were to be extradited.
5. As is well known, the recent decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90 requires the court, in cases where young children are involved, to balance the conflicting interests of safeguarding their rights under Article 8 on the one hand, and of complying with the obligation to extradite people convicted of criminal offences, honouring extradition treaties and ensuring that this country does not become a safe haven for those who wish to avoid the criminal process in their own country on the other. In that balancing exercise, the interests of any children must be a primary consideration and at the forefront of one's mind, although it is important to remember what Lord Judge said at [132]:

"When resistance to extradition is advanced ..... on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."

6. The offences which Mr Reczycki committed were not all that serious. It is unlikely that they would have crossed the custody threshold in this country. In addition, they were committed many years ago when he was only 20 and 22. He is now 30. There was also quite a delay between the activation of the suspended sentences in 2005 and 2007 and when the European Arrest Warrant was issued in September 2009. Moreover, there is nothing in the information before me which suggests that the Polish authorities have considered whether issuing a warrant was proportionate in this case. Although it is not appropriate for me to question the issue of the warrant, HH makes it clear that the courts here must consider the proportionality of extradition in a case where issues under Article 8 arise.
7. The district judge accepted that Mr Reczycki's fiancée would suffer hardship in his absence. Not only would she be deprived of his company, but his income would no longer be available to the family unit. But the district judge noted that Mr Reczycki's fiancée had only one baby to look after, and help was available from Mr Reczycki's brother in this country, or from her parents in Poland if she moved there to be closer to Mr Reczycki in the event of his extradition being ordered. The challenge to the district judge's decision is really based on the district judge's belief that the baby was too young to suffer any real harm in the eighteen months or so while he is separated from his father.
8. Miss Mary Westcott for Mr Reczycki questions that conclusion in the light of what she says was his evidence at the hearing, namely that he was a constant presence in his son's life and supported the care given to his son by his fiancée. It may be that there will come a time when the boy will become aware of his father's absence and maybe even miss him. It is also possible that Mr Reczycki's fiancée's distress at being separated from Mr Reczycki may come across to the boy, and it may have an impact on how she cares for him. But putting the boy's interests in the forefront of my mind, and treating his interests as a primary consideration, I have concluded that in the balancing exercise I must conduct - taking into account the nature of his offences and when they were committed - Mr Reczycki's extradition would not be a disproportionate interference with the interests of his son or his fiancée. I do not think the district judge ought to have decided the question before her differently.
9. It follows that this appeal must be dismissed. I should add that Mr Reczycki has tried to bring forward the date when he is due to have his next endoscopy but to no avail. He therefore wants his extradition postponed until after that. That is not something the court can order without the agreement of the requesting authority (see sections 36(2) and 36(3)(b) of the Act). Mr Myles Grandison for the requesting authority has no instructions on the topic today. There is therefore nothing more that can be done about that today, save to say that in order to ensure continuity of treatment - at any rate for the time being - it would be better if he was able to keep his appointment in March.