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 15 August 2012, the appellant, Eva Kliczbor-Kot, was arrested pursuant to a European Arrest Warrant issued by the Regional Court, Warsaw, Poland on 8 August 2011. The warrant had been certified by the Serious Organised Crime Agency on 29 July 2012. An extradition hearing took place at the City of Westminster Magistrates' Court on 23 November 2012. District Judge Arbuthnot reserved judgment, and on 11 December 2012 she ordered Miss Kliczbor-Kot's extradition to Poland. Miss Kliczbor-Kot now appeals against that order though an adjournment of today's hearing is sought, and I shall deal with that later in this judgment.
2. Poland has been designated a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, Miss Kliczbor-Kot's extradition is governed by Part I of the Act. The warrant was what is colloquially called an accusation warrant. It sought Miss Kliczbor-Kot's extradition so that she could stand trial for a single offence of fraud which she is alleged to have committed on 12 January 2001. She is accused of having used a forged document to obtain telephone equipment and telecommunications services from the company for which she was working valued at an amount which is equivalent, on current exchange rates, to about £450. According to the warrant, the maximum sentence for this offence under Polish law is eight years' imprisonment.
3. There were originally two grounds of appeal. One ground was that it would be oppressive to extradite Miss Kliczbor-Kot to Poland due to the passage of time since the alleged commission of the offence. That ground is no longer advanced. Although the district judge's conclusion on that issue is challenged, the fact is that she found that Miss Kliczbor-Kot had become a fugitive from justice in 2005, the previous delay in the case having been caused by the mental illness of Miss Kliczbor-Kot's co-defendant. The only ground of appeal now is that to extradite her to Poland would be a breach of her and her partner's rights under Article 8 because her partner is suffering from ill-health and needs her to care for him.
4. The relevant facts are that Miss Kliczbor-Kot arrived in this country in 2007 with her partner, Wojciech Zielinski, with whom she had been in a relationship since 2003. She is 54 and he is 58. She has not been back to Poland since. They were living together in a flat they were renting in Dagenham. She found work through employment agencies, but she is not working at the moment because her curfew - which was a condition of her bail - meant that she lost her job. Without that income, she and Mr Zielinski could no longer afford to live in that flat. In breach of another condition of her bail, they left the flat and are now reliant on charity. Neither of them have family in this country.
5. The evidence relating to Mr Zielinski's ill-health at the time of the hearing before the district judge was that he had been off sick for several months. He had asthma. There was said to be a concern that he might have cancer. That fear had not been confirmed by the date of hearing, and no biopsy had been taken. The district judge accepted that Mr Zielinski was ill. She referred to his weight loss and a lump on his neck, but there was no medical evidence before her. Since she found that he had already missed two or three appointments - he claimed because he was afraid of being diagnosed with cancer - she was not confident that if she adjourned the hearing he would attend for any biopsy to be taken to enable a diagnosis to be made.
6. The evidence before the court today shows that a biopsy was taken at Whipps Cross Hospital from Mr Zielinski's right vocal chord following an endoscopy on 4 February. That biopsy revealed what was described as "vascularised stroma". Initially, it was thought that it was not possible to express an opinion on whether there was dysplasia or malignancy owing to the lack of epithelial cells, but that is incorrect since the lesion has in fact been shown to be benign. Mr Zielinski is due to have an ultrasound scan next Wednesday on a lump on his thyroid gland to see whether that needs treatment in its own right. Mr Zielinski claims that he has been told that that might be cancerous, and the basis of the application for the adjournment of the hearing of the appeal is that the court should at least await the outcome of the scan. But there is nothing about the possibility that the lump might be cancerous in the letter which the hospital sent to Miss Kliczbor-Kot's solicitors earlier this week. Since one cancer scare has been laid to rest, the court can perhaps be forgiven for being a little sceptical about Mr Zielinski's claim of having been told something which is not supported by the most recent letter from the hospital.
7. The district judge found that Mr Zielinski was "quite dependent" on Miss Kliczbor-Kot, but that he had applied for benefits and was able to look after himself. He had, she said, been able to fend for himself when Miss Kliczbor-Kot had been out at work. The district judge noted that he may well suffer financial hardship as a result of her absence, because they need to supplement his benefits with her income. But her conclusion was that that was not sufficient on its own to meet the relatively high test laid down by the Supreme Court in Norris v Government of the United States (No 2) [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic Genoa [2012] 3 WLR 90. What was said in Norris and HH is too well known to be repeated here, but it is worth noting what Lord Phillips said in Norris at [65]:

"If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee ..... "

8. The district judge accepted that the offence for which Miss Kliczbor-Kot's extradition was being sought was not the most serious of allegations. Moreover, there is nothing in the information before the court which suggests that the Polish authorities considered whether issuing a warrant was proportionate in her case. Although it is not appropriate for me to question the issue of the warrant, HH makes it clear that the courts here should consider the proportionality of the extradition under a European Arrest Warrant when it arises under Article 8. The fact is that Mr Zielinski is not incapacitated. He can fend for himself. The fear that he had cancer of the vocal chord is no longer present. There is absolutely nothing which suggests that he is likely to be incapacitated in the near future, even if the scan reveals that the lump on his thyroid gland is malignant. There is, for example, no suggestion that if the tumour is cancerous, it will have either an imminent or even an intermediate impact on his ability to fend for himself. In the circumstances, I refuse the application for an adjournment of the hearing of this appeal.
9. It is necessary, of course, for me to balance the conflicting interests of safeguarding people's rights under Article 8 on the one hand, and of complying with the obligation to extradite people facing criminal charges, 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. I take into account the time that Miss Kliczbor-Kot and her partner have been in this country, as well as the nature of the offences for which extradition is sought. In the balancing exercise which I have to conduct, I am have concluded that her extradition would not be a disproportionate interference with her Article 8 rights or those of her partner. In the circumstances, I do not believe that if the fresh evidence had been before the district judge, it would have resulted in the district judge coming to a different conclusion. In the circumstances, this appeal must be dismissed.
10. MR HARBINSON: The only matter is to seek the usual order in respect of costs.
11. MR JUSTICE KEITH: Your publicly funded costs?
12. MR HARBINSON: Yes.

MR JUSTICE KEITH: Very well.