CO/3435/2014 
Neutral Citation Number: [2014] EWHC 3883 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 29 October 2014

B e f o r e: 

MR JUSTICE IRWIN 
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Between: 
POLISZUK
Appellant

v 

DISTRICT COURT IN LUBIN POLAND 
Respondent 
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Ms O'Byrne (instructed by Sork MacMillan Walker) appeared on behalf of the Appellant
Miss C Brown (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE IRWIN:  In this appeal, pursuant to section 26 of the Extradition Act 2003, Mr Tomasz Poliszuk appeals against the decision of a District Judge Zani dated 17 July 2014 to order his extradition to Poland.  
2.	The extradition is sought pursuant to a European Arrest Warrant issued on 29 October 2013 and certified by the National Crime Agency on 19 December of last year.  The Appellant is sought in relation to a judgment of the District Court in Lubin dated 29 May 2012 which became final on 6 June.  It relates to two offences, one an offence against public order and one offence of involvement in the importation of well over 3 kilograms of cannabis between October 2010 and 9 April 2011.  It is said that the Appellant was involved in transporting and then dividing the drugs.  He pleaded guilty to the charges and was sentenced to three years and six months' imprisonment.  
3.	The precise terms of the European Arrest Warrant in Box C may, perhaps, be relevant.  What they say is this:
"Length of the custodial sentence or detention order imposed: 3 (three) years and 6 (six) months of detention.  
Remaining sentence to be served, 2 (two) years and 4 (four) months and 10 (ten) days of detention."
4.	There is no indication on the face of the warrant how it comes about that he was at liberty.  He appears to have been released from prison at some stage in mid 2012 and, in mid 2012, arrived in the United Kingdom.  He was arrested on the warrant on 7 March of this year and remanded in custody.  
5.	He was granted bail by Silber J on 11 July 2014.  Following further delays in his release, a fresh grant of bail on somewhat less restrictive conditions was made by District Judge Zani on 17 July.  Those terms, following his release, included a 9 hour electronically tagged curfew, that is to say a tagged curfew which in this country would, by operation of statute, give some credit towards the period of imprisonment to be served.  
6.	The appeal in this case concentrates on a single point of law.  It is that the District Judge appears to have applied an "exceptionality" test to the Article 8 claim, an approach disapproved by the Supreme Court in HH v the Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338. 
7.	The evidence before the District Judge recited the following terms: 
"The first thing to be aware of is that the vast majority of people for whom extradition is sought is to return to serve a sentence or to trial.  If we asked Poland to return someone, it would be sympathetically received.  
I am considering your rights and the rights of your family ‑‑ your wife and two children.  Practically every case we deal with on a human level is very sad.  You are settled here.  You have a young family, a good job.  You are not in settled accommodation and you have health problems.  
Regarding your accommodation, it does seem that you had problems with rent prior to your arrest on 7 March.  I understand that once you told the authorities you were married, your benefits were cut.  You have told me candidly that you were struggling to pay rent.  In your proof, you said you have no siblings you can rely onto assist.  It is clear that since your arrest, your wife and children have been looked after by friends, and your brother and her sister, I anticipate, can provide some assistance, if not financial assistance.
What this is all leading up to is that I am satisfied that there will be hardship caused to you and your wife and two children, but the law tells me hardship is not enough to defeat extradition.  Every case is fact specific.  The leading case that governs this is Norris where the court said that in order to succeed in this challenge, there would need to be "striking and unusual facts".  And in the later case of B v District Court in Trutnov, the court said that Article 8 claims would rarely succeed...
At the end of the day, although you may be able to make an application for release halfway through your sentence, I have no information about whether that is likely to succeed.  I have my doubts because of the previous conviction.  Although there will be hardship, it is not enough.  
Sadly, I have no alternative but to order your extradition.  It is proportionate and necessary for me to do so."
8.	Was that an incorrect approach in law, as Ms O'Byrne submits?  In the leading case of HH [2013] 1 AC 338, the court considered the way in which Norris v the USA No 2, [2010] 2 AC 487, that is the case to which District Judge Zani referred in his judgment, had been applied.  The court came to an understanding that a number of courts applying the Norris test or the principles laid down in Norris had fallen into error.  
9.	The principles in Norris were extracted by Lady Hale in paragraph 8 of HH: 
"(2)There is no test of exceptionality in either context. 
 (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. 
 (4) 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. 
 (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. 
 (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. 
 (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe." 
10.	The error which had crept in was to confuse the likely outcome of the balancing exercise in extradition cases with the test and to approach the assessment of proportionality as if, absent some "exceptional" feature, extradition would follow.  
11.	The error was eloquently captured by Lady Hale quoting Lord Mance in paragraph 32 of the judgment: 
"The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life.  In focussing on "some quite exceptionally compelling feature" (para 56 in Norris), they have fallen into the trap identified by Lord Mance JSC, tending "to divert attention from consideration of the potential impact of extradition on the particular persons involved... towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill" (para 109)." 
That is the end of the quotation from Lord Mance.  Baroness Hale went on:  
"Some particularly grave consequences are not out of the run of the mill at all... we are all agreed on that." 
12.	All the judgments in HH emphasise the importance of extradition and the very weighty public interest in maintaining the system, particularly in the context of serious crime.  The judgment of Lord Judge makes that plain, but the other justices agreed.  He added emphasis, in paragraph 132 of HH, beginning at the top of page 399, as follows:  
"Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative.  ZH (Tanzania) did not diminish that imperative.  When resistance to extradition is advanced, as in effect it is in each of these appeals, 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." 
13.	Having, I hope, given a fair picture of the competing considerations and different language laid out in HH, I now consider whether the District Judge here fell into error.  
14.	An appellate court must not try to pass a short extemporary judgment as if it was a statute.  It is very important, given the press of business in the Magistrates' Courts, business of all kinds, but business dealing with extradition, that the High Court should not over‑interpret and thereby encourage unjustified appeals based on too narrow a reading of swiftly delivered conclusions.  
15.	Is there a real basis for saying that District Judge Zani fell into error?  He did make reference to the case of Norris, but not to HH.  He attended to the fact that this was serious offending.  In stating, as he did, that the vast majority of people for whom extradition is sought return to serve their sentence or trial, he was focusing on the outcome of the application of the relevant test, it seems to me.  That observation of his was in line with many remarks in HH, one of which from Lord Judge I have just quoted.  
16.	The District Judge did consider the facts of this Appellant.  He considered the steps that this Appellant had taken to improve his position and to act more responsibly.  He did consider the possibility of a release halfway through the sentence, although he really had little evidence, as he, in fact, himself said, on which to resolve that question.  On the face of the warrant, he concluded that there may well have been and may well be a considerable period of sentence still to serve.  
17.	Taking the matter as a whole and doing my best to interpret fairly this short judgment, it seems to me that there is no proper basis for saying that the District Judge failed to conduct the proper exercise of considering proportionality and fell into the trap identified by the justices in the course of HH.  He would have been wiser to refer to HH and to the formulations to be drawn from it, but that is a different question from assessing the overall approach that he took.  
18.	In the course of argument, Ms O'Byrne referred the court to the case of Sosik v Lithuania [2014] EWHC 2487 (Admin), a decision of Cox J sitting in appeal on another decision by District Judge Zani where it is said, and it is clear that it is so, that somewhat similar language was used.  
19.	I have considered the judgment of Cox J.  That was a different case.  She found there had been a failure to follow the correct approach there.  I have not been put in the position of seeing the whole judgment of District Judge Zani in the Sosik case.  In the end, it cannot be an appropriate exercise for one judge sitting in this court to consider that because a different outcome arose in a different case, that necessarily the same outcome must arise in this.  So with very great respect to Cox J, I cannot think that my view of this judgment can properly be determined by her view of that judgment, even if there are similarities in the language used.  
20.	On the face of the record, there is a considerable period of imprisonment still to serve.  There can be no doubt that this was very serious offending.  Ms O'Byrne has referred me to the case of Chmura v Poland [2013] EWHC 3896 (Admin), a decision of Ouseley J.  
21.	The facts in that case were rather different from the facts in the incident appeal.  There was a very long lapse of time in that case between the offending and the extradition sought.  The sentence was a great deal shorter.  There was very full evidence of rehabilitation and a clearly very short period of imprisonment likely still to be served, although the matter was no more certain there than here.  Again, with every respect to Ouseley J, it seems to me that that case is rather different and clearly distinguishable.  
22.	I make these points in order to say that in this case, even if I am wrong and District Judge Zani did wrongly approach his exercise, then, in the absence of clear evidence that a very short period of imprisonment was still to be served, I would reach, on all the information before me, the same conclusion as he did, that it was appropriate to extradite this offender.  
23.	I bear in mind in particular that the children in this case, although young and although cared for by this Appellant, will have their mother with them in England.  This is not a case such as that in HH itself where the children had the prospect of both their parents being extradited to Italy for serious drug offending.  
24.	In terms of the home situation, it seems to me it is relevant to consider that the precarious housing situation predated the attempted extradition.  Therefore, the impact of extradition on the family life cannot be the uncertain home situation to date, nor, indeed, is the future uncertain home situation attributable to the extradition as opposed to the underlying difficulties of the family.  That is, I am sure, what District Judge Zani meant.  I am also informed that the Appellant's wife is in receipt of other state benefits.  It follows that, particularly in his absence, she is likely to be qualified to receive housing benefit and the other assistance to families in need.  
25.	This is very serious offending.  So, for all those reasons, as I repeat, I would reach the same conclusion as did the District Judge, even if his approach was wrong, bearing clearly in mind all of the considerations set out by the Supreme Court in HH.  
26.	I am grateful to both counsel for the clarity with which this case has been addressed. 
27.	MS O'BYRNE:  My Lord, in those circumstances, I think I do need to make an application to vary the bail conditions pending extradition.
28.	MR JUSTICE IRWIN  :  Yes.  
29.	MS O'BYRNE:  Yes.
30.	MR JUSTICE IRWIN:  So what can we do to help on that front?
31.	MS O'BYRNE  :  Yes.  It is simply a matter of changing the address on the residence condition for bail.
32.	MR JUSTICE IRWIN  :  Yes.
33.	MS O'BYRNE  :  It is currently 17A Great Cambridge Road.  I can give you the new address ‑‑ 
34.	MR JUSTICE IRWIN  :  Yes.
35.	MS O'BYRNE  :  ‑‑ which is 17 Belmont Avenue, N17 6AX.
36.	MR JUSTICE IRWIN  :  Yes.
37.	MS O'BYRNE  :  They are simply moving because the current house is very small.
38.	MR JUSTICE IRWIN  :  When is the move happening? 
39.	MS O'BYRNE  :  1 November.
40.	MR JUSTICE IRWIN  :  So two days.
41.	MS O'BYRNE  :  Yes.
42.	MR JUSTICE IRWIN  :  Thank you very much.  No other amendment apart from that? 
43.	MS O'BYRNE  :  That is all, my Lord.  Thank you.
44.	MR JUSTICE IRWIN  :  Thank you.