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
		29 October 2014

1. MR JUSTICE IRWIN: In this case, there is an appeal by Miss Jurczak from the decision by District Judge Coleman on 12 September of this year where the District Judge decided that the Appellant should be extradited.
2. The history can be stated as follows. The first extradition warrant concerns an allegation of fraud in the sum of 2,000 zlotys, which translates to somewhere around £350. That is said to have taken place in January 2001. The second European Arrest Warrant deals with an allegation which has been categorised as kidnap, but probably would better bear the description in English law of false imprisonment. That is said to be of the Appellant's young daughter, to have taken place between December 2003 and 7 July 2005.
3. The Appellant was questioned as a suspect in relation, initially, to the latter offence in July 2005. As that questioning proceeded, she was reporting to police, was restrained from leaving Poland and was directed to live at a specified address. From around October of that year, she failed to pick up correspondence or to report. On 5 October, preventative detention was ordered by the Polish court. On 11 October 2005, a wanted notice was issued in Poland.
4. It is common ground that the Appellant came to England in 2005. She was in the United Kingdom when the first European Arrest Warrant was issued on 12 December 2007. That related to the fraud and was issued by the Warsaw court. The second warrant was issued by the court in Bialystok. That was issued on 19 August 2008. Both were certified on 9 May of this year. She was arrested on 20 June and has been in custody since.
5. In this case, there was what I have concluded is properly to be described as a careful judgment, reserved from the hearing, by the District Judge. She made a number of key findings. Firstly, in relation to the fraud, subject to the first warrant, she could not conclude that the Appellant was a fugitive. However, she did so quite clearly in relation to the second warrant in relation to the more serious offending.
6. She concluded there was no culpable delay on part of the judicial authority and that the delay had largely been occassioned by Appellant. In particular, the Appellant had, in Poland, deliberately used the address of an extremely elderly relative and that that was a device intended to deceive and mislead. She was not a frank or reliable witness. She when onto conclude that the balance of the relevant factors meant extradition was proportionate and appropriate.
7. Mr Keith advances three grounds, which probably require adjustment in the light of argument today. Firstly, in relation to the first warrant, he submits that it would be unjust and oppressive to order the Defendant's extradition by reason of the passage of time under section 14 of the Act. He agrees that because the Appellant was a fugitive in relation to the second warrant, such an argument is not accessible in relation to that warrant.
8. Secondly, he submitted in writing -- and I think must now submit in relation to both warrants -- that the District Judge failed properly to consider the warrants separately in relation to section 21A of the Act and, in respect of each, was wrong to conclude that extradition for those offences was proportionate.
9. Thirdly, in relation to each, he submits that extradition would not be compatible with Article 8 of the European Convention on Human Rights.
10. I deal firstly with the section 14 submission. The test there is would it be unjust or oppressive to extradite? The legal principles have been helpfully extracted by both counsel. I need not recite them all. The leading cases are Gomes v Trinidad and Tobago, Goodyer v Trinidad and Tobago [2009] UKHL 21, Woodcock v Government of New Zealand [2004] 1 WLR 1979 and Knowles v Government of United States of America [2007] 1 WLR 47.
11. The essence is would it be unjust or oppressive to extradite the accused and not try him? If a fair trial was impossible, would it be unjust or oppressive for him to be returned? A court must have regard to the relevant safety notes. No rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible. Much will turn on the particular facts of the case and there is no cut off point. Those principles were elaborated further in La Torre v Italy [2007] EWHC 1370 and Zubovka v Poland [2014] EWHC 1242.
12. In short, it seems to me that there was a perfectly proper treatment of this aspect of the case in the approach of the District Judge. This is a threshold test, not a proportionality test. Nevertheless, she gave proper consideration to the length of time. I find no basis on this ground for finding that she reached the wrong conclusion.
13. I turn, therefore, to issues arising under section 21A. The court is directed to consider section 21A by section 11. The bars to extradition are set out in sub-sections (1) to (4). Then in sub-section (5), the sub-section reads as follows:

"If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 21A."

14. In relation to both of these offences, the Appellant has not been convicted. So although she may be taken to be a fugitive in relation to one of them, since they are accusation warrants, a section 21A exercise must be gone through.
15. Section 21A(1) requires the judge to decide both of the following questions in respect of the extradition: (a) whether the extradition will be compatible with Convention rights, and (b) whether the extradition would be disproportionate. I will return to the compatibility with the Convention a little later.
16. In relation to section 21A(1)(b), section 21A(2) sets out the procedure to be followed. In deciding whether the extradition will be disproportionate, the judge must take into account the specified matters relating to proportionality so far as the judge thinks it appropriate to do so, but the judge must not take any other matters into account.
17. The specified matters relating to proportionality are set out in section 21A(3) and, for our purposes, in sub-sections (a) and (b): (a) the seriousness of the conduct alleged to constitute the extradition offence, and (b) the likely penalty that would be imposed if D [that is the Appellant] was found guilty of the extradition offence.
18. The Lord Chief Justice has issued guidance to be followed in the application of this legislation. The guidance in its relevant passages to this case reads as follows:

"17A.2 When proceeding under section 21A of the Act and considering under sub-section (3)(a) of the Act the seriousness of the conduct alleged to constitute the extradition offence, the judge will determine the issue on the facts of each case as set out in the warrant, subject to the guidance [which follows].

17A.3 In any case where the conduct alleged to constitute the offence falls into one of the categories in the table at 17A.5 below, unless there are exceptional circumstances, the judge should generally determine that extradition would be disproportionate."

Pausing there, the table at 17A.5 in its second category gives the delineation or definition "minor financial offences (forgery, fraud and tax offences)" and gives examples reading, as far as germane, as follows: "Where the sums involved are small and there is a low impact on the victim and/or low indirect harm to others..." There are then a series of examples given.

19. The submission by Mr Keith is that, in relation to the first arrest warrant in this case, the fraud to a value of around £350, that indeed is a minor financial offence with a relatively small sum and a low impact on any victim. However, the guidance goes onto consider the exceptional circumstances that may apply where the relevant offending falls within the table. 17A.4 reads as follows:

"The exceptional circumstances referred to above in 17A.3 will include:

(iv). Multiple counts.

(v). Extradition also sought for another offence."

20. It seems to me, therefore, that the proper approach in considering European Arrest Warrant one under section 21A and applying the guidance handed down by the Lord Chief Justice must be to consider that one of the specified exceptional circumstances does arise in the sense of extradition also sought for another offence and potentially another in the sense of there being multiple counts.
21. It follows that in looking at the section 21A issue, aside from more general proportionality under the Convention, it is necessary for a District Judge to consider the different European Arrest Warrants before the court. In that sense, some of the debate that took place in the course of argument really falls by the wayside.
22. For example, it cannot matter for present purposes, having that guidance in mind, whether a single European Arrest Warrant contains a number of minor offences or whether the number of minor offences is to be found in a series of European Arrest Warrants all before the court in the same proceedings precisely because the phraseology in the guidance at 17A.4(v) is simply "extradition also sought for another offence". Here, there can be no argument that the false imprisonment offence constitutes minor offending such that it would require support from any exceptional circumstance and Mr Keith has not so submitted.
23. Therefore, it seems to me that the criticism of the approach taken by the District Judge in relation to the section 21A aspect of the case is misplaced. If necessary, I make it clear that I would follow precisely the same course and reach the same outcome. The extradition here is clearly appropriate and proportionate within the terms of section 21A.
24. I turn to the question of the compatibility with the Appellant's rights under the European Convention and Article 8. I can deal with this shortly, as did counsel. The situation is that the Appellant's mother is resident in the United Kingdom, but there is no evidence that she is frail, ill or in any other way dependent on the Appellant. Although the Appellant's child lives in Poland already, she is, in any event, not in her care and, as we understand it, not in close communication with her. There is, in short, nothing here of significance which would make the extradition disproportionate under Article 8.

Accordingly, the appeal is dismissed.