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
		28 February 2014

1. MR JUSTICE KING: This is an appeal against the decision of the district judge of the 21 January 2014 to order the appellant's extradition to Poland pursuant to a European arrest warrant (EAW), a conviction warrant under which his return is sought to serve a remaining sentence of eighteen months for three offences. Those offences are: theft from a car on 18 October 2002 referred to as a burglary, a battery committed on 7 March 2003, and, finally, possession of marijuana - of relatively small amounts for personal use - between 22 December 2005 and 23 January 2006. As to the details of those particular offences, as regards the theft, the warrant reads as follows:

"On 18 October, acting in co-operation with other persons, having first lowered a side window panel of a Fiat 126, licence plate number ..... and having opened the door he got inside the car from which he took a woman's coat, a pair of jeans, a child's blouse, a hairdryer, disposable lighter worth about 193.5 zlotys."

I understand that is about £48.

2. As regards the second offence, that is the battery, the particulars read:

"On 7 March 2003 ..... acting with and in co-operation with other persons he beat the victim which resulted in severe detriment to the victim's health in the following way: hitting him with his hands and kicking him all over the body, he caused injuries consisting of bruising to the head, reddening of the left cheek, making an impression on the back of the head resulting in an impairment of his bodily functions for period of fewer than seven days."

3. As regards the drug offence, the particulars are that between 22 December 2005 and 23 January 2006 he was in possession of 0.5 grams of marijuana on 22 December, 0.5 [grams] on 28 December, 0.5 grams on 6 January, 2 grams on 13 January and 2 grams on 20 January.
4. The sentence which was imposed upon him for all these matters was one of eighteen months. It was passed in 2006.
5. The appellant, in his witness statement, says that it was a suspended sentence. The warrant itself shows how that eighteen months was made up. There was an aggregate penalty of eight months' imprisonment in the case of the first two offences (that is the theft and the battery). I observe that as regards the battery offence, the Polish court, before aggregation, indicated a sentence of five months' imprisonment with six months' imprisonment for the car matter. The aggregation downwards is in accordance with Polish practice, as I understand it. There was then ten months in respect of the drugs matters.
6. The European arrest warrant was issued by the respondent on 3 June 2013, and certified by the Serious Organised Crime Agency (SOCA) on 17 September 2013. In other words, it was issued some seven years after the events of 2006.
7. What happened in 2006 was that the appellant chose to leave Poland in the knowledge that that would be in breach of his suspended sentence. He says frankly in his witness statement:

"When I was released from prison I had one licence condition attached to my suspended sentence which was to see my probation officer for six months every Friday. I told my probation officer my sister had offered me the opportunity to move to the United Kingdom. My probation officer refused my request to travel to the United Kingdom."

The appellant then set out why he went to the United Kingdom and what has happened there since.

8. The appellant's date of birth is 10 June 1985. It follows that the offences in 2003 were when he was 17 years of age and the drug offences when he was 20 years of age. He left Poland when he was some 21 years of age. He went to join his sister who, on the face of it, was a single mother. He said, as regards the circumstances:

"My sister was already residing in Sheffield in full time employment. She had been in the United Kingdom for about years."

He then described how he obtained employment during his time in the United Kingdom. During that time he has not been convicted of any criminal offences. He emphasised in his witness statement how - although he does not live with his sister - his shift times are between 6 pm and 6 am. The sister works shifts, 6 am to 6 pm. He, therefore, assists his sister in looking after his niece. He collects her from school, assists her with homework. He is there for her while she [the sister] is at work. He asserts that he has a very close relationship with his niece.

9. In the course of his witness statement he also explained how his father had died in a car accident a few years ago. His mother was still in Poland.
10. The issue for this court is whether or not extradition should have been ordered given the interference with his Article 8 right being asserted in opposition to extradition by the appellant. The approach of any court when deciding, which it must, whether or not extradition would be incompatible with the Article 8 rights of the person whose extradition is sought is to apply the principle of proportionality.
11. The leading authority - HH v Deputy Prosecutor of the Italian Republic Genoa [2012] 3 WLR 90 - made clear that the court has to enter into a balancing exercise. On the one hand:

"There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no 'safe havens' to which either can flee in the belief that they will not be sent back."

But of course the weight to be attached to the public interest in extradition will vary according to the facts of any particular case. It is recognised that it will vary according to the nature and seriousness of the crimes involved. The weight to be attached to the public interest may be diminished because of the impact on private or family life. The weight to be attached to the latter may increase according to any delay since the crimes were committed in the steps taken by the judicial authority to issue the arrest warrant, and/or the gravity or rather lack of gravity of the offences; and, as was emphasised in HH, given that the courts always have regard to the impact of extradition on the Article 8 rights of others, the impact in particular on any children.

12. Mr Keith, in his helpful skeleton argument, has identified by reference to recent decisions of this court, since HH was decided in the Supreme Court, the sort of factors which this court has recognised as weighing against extradition. They have included, for example, the health of the appellant; delays in the issue of the warrant, antecedent proceedings or certification by SOCA; the period of time during which the requested person has been on electronic tag; the relative lack of seriousness of the offence; that the sentence originally imposed was suspended and that some of the conditions of suspension were complied with (for example, the payment of relevant fines); the period the requested person has served on remand in this country and the sentence remaining to be served; the appellant's own Article 8 rights as opposed to those of his family; the health of a child or spouse left behind; the type of offending, particularly whether or not it was violent or sexual offending.
13. I have also had my attention drawn to the particular factor of the lack of any discretion in the prosecuting authorities in Poland in deciding whether or not to apply for issue of a warrant, no matter how comparatively minor the offences are or how long ago it has been since they were committed, or what kind of life the offender has led since.
14. So what are the factors in this case which are relied on by Mr Henley, on behalf of the appellant, to outweigh that which he accepts is a weighty public interest in extradition? He suggests, first, the relative lack of seriousness in the offences themselves. He then emphasises the age of the appellant when he committed them. He was only a young man. As regards the first two offences, he was only 17. Next he relies upon the length of time it has taken to issue the European arrest warrant, namely seven years taken with the good character of the appellant since he resided in the United Kingdom; and the private life and family life it is said he has established in the United Kingdom, particularly the assistance he gives to his sister in looking after the niece; and the financial support which he gives to his mother in Poland. He also brings out that the appellant has of today served some five months in custody already which would count against the eighteen months to be served in Poland.
15. I do take all those matters into account. Ultimately however I find it impossible to say that any of these factors, even taken together, outweigh the public interest in extradition in this case.
16. True, there has been delay in the issue of the arrest warrant but I have no material before me and there has been no investigation as to the reason for the delay. It could just as easily have been as a result of the appellant going to ground in the United Kingdom so his whereabouts were not known to the authorities, rather than any culpability on the part of the Polish authorities themselves. The delay in this case is not in my judgment of itself determinative.
17. The other matters relied on are, when looked at, remarkably generalised as regards the assertion that the appellant's private life and family life under Article 8 will be disproportionately interfered with. There is very little evidence as to what impact the extradition of the appellant will have upon the niece and sister, for example. The appellant is not the principal carer for the niece. He merely assists, if I may so describe it. It is very difficult to say that the family ties he has in the United Kingdom are such that the impact of his extradition on others would be disproportionate. His private life is no more than the sort of private life any person who has fled the country in which he has been sentenced and made a new life in another state, would have. There is nothing particularly significant in the appellant having obtained employment and led a good life, made contacts with friends and so forth.
18. Nor, standing back, can I accept that the offences for which his return is being sought are to be categorised as relatively trivial or lacking in seriousness. The eighteen-month aggregate sentence itself demonstrates a degree of seriousness. We are not talking here of the appellant being sent back to serve a very short term. I take on board of course the age of the appellant at the time he committed the offences but that in itself, in my judgment, does not here tip the balance. I have sought to weigh all matters, but ultimately I come to the conclusion that public interest in extradition must prevail. Extradition here would not be disproportionate. Accordingly this appeal fails.
19. MR HENLEY: Thank you. I have no further application.
20. MR JUSTICE KING: Thank you all for your assistance.