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
		14 November 2014

1. MR JUSTICE OUSELEY: This is an appeal against the decision of District Judge Goldspring at Westminster Magistrates' Court to order the extradition of the appellant to Poland on a mixed conviction and accusation warrant. The conviction component was for an offence committed in July of 2000 involving the acquisition of a mobile phone worth about £200 in today's currency through the use of a forged employment certificate.
2. The appellant pleaded guilty to the offence in his presence on an unknown date before 30 July 2007. On 30 July 2007 he was sentenced. He was not present but that was his choice. He was represented for that purpose. He was sentenced to an 18-month sentence which was suspended for 5 years, that is until the 30 July 2012. On 19 September 2011 the suspended sentence was activated because of breaches of the suspension conditions by the appellant through failing to inform the probation officer of his address and to keep in touch.
3. The EAW was issued on 11 February 2014. The accusation component of the warrant concerns an offence described as forgery, but it is a form of fraud, committed between February and December 2000. It is alleged to have involved a number of occasions on which the appellant with another acted as agent for a company in the collection of debts. They diverted the debts that they received to their own pocket rather than paying them to their employer. The total sum involved in that appears to be of the order of £2,000 to £3,000 at today's exchange rate.
4. The appellant said that he was imprisoned in 2005 and 2006 and at some point during that period the police questioned him about that offence but took no further steps in relation to it. The European Arrest Warrant (EAW) says that the appellant was served with a summons for trial in relation to that matter at the address he had given to them, which was his mother's address, and she collected the summons on 23 October 2008 undertaking to give it to the appellant. The appellant did not attend, and on 17 November 2008 the Polish court made an order for 3 months' preventive detention. What in fact that means is that the Polish court, in the absence of the appellant, issued what is an order comparable to a bench warrant, not backed for bail for a remand in custody, for an absent accused. The EAW in relation to that was issued on 11 February 2014.
5. The appellant came to the United Kingdom on 14 February 2008. He gave evidence to the effect that when he came he did so with the permission of his probation officer. Of course his probation officer would only have been policing the terms of his probation. He says, according to Miss O'Raghallaigh's recollection, that he remained in contact with her, the probation officer, until July 2008, when he says "the required period ended". Of course, the required period under the suspended sentence had scarcely begun. The reference to that period ending must be to a licence period associated with the prison term in respect of which he was released from prison in 2006.
6. The issues before the district judge included the question of whether the appellant was a fugitive such that he could not rely upon section 14 of the 2003 Act as a bar to extradition. The district judge's judgment in this respect does not deal separately, as it ought to have done, with whether the appellant was a fugitive in relation to either accusation or conviction offences, or both. The circumstances which apply are different, on the facts, with differing starting points.
7. The judge did not, as I read the judgment as a whole, forget that this was a mixed warrant, although describing it as a conviction warrant, but nonetheless he does not deal in his findings separately with the two sets of offences. This matters in part because the judge clearly took an adverse view of the credibility of the claimant and did so in part because of a section 10 Criminal Justice Act 1967 admission to the effect that he was present during his conviction and was given a suspended sentence, whereas his evidence to the judge was that he had been present to plead guilty but not present at the sentence. Of course that has nothing whatsoever to do with his position in relation to the accusation warrant. The position, even in relation to the conviction component, is not entirely satisfactory given that it is perfectly possible under Polish law to be present for conviction but absent for sentencing without being in any sense a fugitive. At all events, the judge found that the appellant was a fugitive in respect "of both charges," and therefore he would be unable to rely on the passage of time.
8. Miss O'Raghallaigh makes some cogent points about the reasoning or the expression of the reasoning in that decision, and it is clear that not all of it provides a ready answer to the issue in this appeal. I am, however, satisfied that the appellant had become a fugitive in relation to the conviction offence in these circumstances. By the time he had been sentenced and was subject to provisions which required him to keep in touch with the probation officer and let her know his whereabouts and had failed to do so, thereby failing to comply with the restrictions, he is properly described as unlawfully at large, but not before that point. I put it that way because I do not regard the phrase "unlawfully at large" as simply and only applying from the point at which the sentence was activated in all circumstances. I have been referred to, but have been unable to read, a decision of Mitting J in Pinto v Judicial Authority of Portugal [2014] EWHC 1243 (Admin). In that case, as best as I have been able to understand it, the appellant, having been given a suspended sentence in Portugal, came to the United Kingdom with the consent of the relevant official, kept in touch, but failed to pay the compensation, which was a further obligation under the suspended sentence. Mitting J held that he did not become unlawfully at large merely because he had failed to pay the sum of money given that he had come with the consent of the Portuguese police. Be that as it may, it does not seem to me that it deals with the position where somebody, although coming to the United Kingdom with permission, thereafter breaches terms that require him to keep in contact, thereby becoming somebody whose whereabouts are unknown to the authority which is entitled to know of them, putting it beyond their power to deal with him for the breach which is he is committing. In the alternative, if what Mitting J said in that case, and it would be a view to which I would naturally give the greatest weight before disagreeing, is that the point at which a person convicted becomes unlawfully at large where they had been subject to a suspended sentence is the point at which that suspended sentence is activated, then this appellant became unlawfully at large on 19 September 2011 when the sentence was activated. I say that because it would be the prior act of failing to keep in contact which would have given rise to his inability to be told that the sentence was being activated. It seems to me in those circumstances those are matters of his choice and decision, and he cannot complain that, by concealing his whereabouts, or thereby evading arrest, he is not unlawfully at large.
9. At all events, the stronger point which Miss O'Raghallaigh has on behalf of the appellant is to point to the period between July 2000 and July 2007, and indeed, on her submissions, July 2008, when no action had been taken by the prosecutor to prosecute, and whereafter he had not been in breach of any of his requirements. Thereafter, in my judgment, he was in breach either from July 2008 onwards, or from September 2011 onwards. That deals with the conviction part of the warrant.
10. So far as the accusation part of the warrant is concerned, the passage of time is clearer. He is alleged to have committed the offence in 2000 and that then is the passage of time which has to be considered save to the extent that he is responsible for the delay. There is no basis for supposing that he was responsible for any of the delay until some point in about 2006/2007. It is hereafter that the issue becomes a little less clear than it would have been, had the judge made clear findings separately about this. Miss O'Raghallaigh points to the fact that the appellant came to this country with the permission of the probation officer. But, as I have said, that does not deal with the position in relation to the accusation offence. Certainly he would have made it more difficult for any information in relation to the accusation offence to get to him because he had left no address with the probation officer but that does not of itself solve the problem.
11. Miss Hinton says that I can be satisfied to the criminal standard of proof that the appellant is not entitled to rely on the passage of time after about 2006 or 2007 because of the content of the EAW. In particular, she relies upon the reference in it to the defendant being served with the summons for trial through his mother collecting it which, under Polish law, is sufficient if the letter is delivered to an adult at the address given from which the addressee is temporarily absent. The arrest warrant also refers to the defendant not appearing in court when summoned, attempts at contacting him not being successful, and adding that he had changed his place of residence:

"although he was correctly instructed about the consequences of doing so and about his obligation to inform the law enforcement authorities about each change of his place of stay, therefore the District Court of Wodzislaw Slaski ordered his pretrial detention. The fugitive was staying in hiding. He left Poland in order to avoid responsibility for the committed offence".

12. It is clear from the narrative in the warrant that at some point before October 2008 there must have been some other contact between the prosecutor and the defendant other than that which he says occurred. He says that he was simply questioned and nothing more was said. Yet it is clear that he was summoned for trial in October 2008 and that there was a conversation about the requirement to notify the police of his address and changes in it. Either the appellant has not told the truth, as the district judge found, or alternatively he has simply failed to mention a subsequent conversation. On balance I am persuaded that the district judge's approach to this can be upheld on his findings. But if it were left to me I would be satisfied, on the relevant burden, that the material in the extradition warrant makes it clear beyond a peradventure that as from about 2008, if no earlier, the appellant was a fugitive and that the evidence which he has given is simply inadequate to raise a doubt about that. So as from a date no later than 2008 and possibly a bit earlier, in the case of the accusation offence, and as from a date which may be between 2008 and 2011 in relation to the conviction, the appellant is a fugitive. But, as I have said, that still leaves a very substantial period of delay which is not the fault at all of the appellant.
13. I do not regard the period where there was no fault as creating any oppression. It creates hardship. But it does not meet what is necessarily a high threshold for section 14 purposes. More usefully these issues can be considered under the heading: article 8 is extradition proportionate?
14. The first point which Miss O'Raghallaigh makes is that there is a substantial period of time between 2000 and 2007 in relation to the conviction offence, and 2000 and even later in relation to the accusation offence, at which the prosecutor appears to have done nothing very useful in relation to these offences, one of which is comparatively minor and the other of which, although persisted in for some period, did not amount to a loss, even allowing for inflation and different exchange rates that would put it in a serious category. Thereafter, even though the prosecutor may have had difficulty contacting the defendant, the passage of time, for an offence or offences which were already getting a little stale in relation to the accusation, has been considerable. It has been nearly six years or so in relation to that accusation offence, and a period of three years from activation of the suspended sentence, the operational period for which has, by now, expired. The appellant came to the United Kingdom with permission at least to some extent although he took no real efforts thereafter to understand his obligations.
15. The public interest in extradition, as it will have to be asserted by the judicial authority, is diminished by the judicial authority's own rather lackadaisical attitude. On the other hand, there is, for all that, an obligation to give considerable weight to the importance of respecting other country's legal systems, judicial judgments, and processes.
16. This is a case in which the individual has limited family life which he can pray in aid. He has a partner of a few years, not his wife, and not the mother of his adult children. He gives evidence, as does his partner, that naturally she will be depressed and will miss him and would not wish at her age, about 49, and his age, about 43, to find that a relationship which has no doubt brought them happiness is to be ruptured. The appellant makes reference to a number of authorities, but really no citation of individual facts of other cases helps in a decision of this sort. They depend very much on a judicial judgment about the facts of the individual case, and comments en passant by judges in relation to the facts they are faced with are of limited value, and might even invite disagreement with the results of individual cases.
17. Since the case of FK there has been a modest rather than a great change. The effect of FK on the judgements generally has been that judges look carefully at the length of time even where, as in that case, the appellant was found to be a fugitive. The limited gravity of the offending is also considered, together with, as happened in that case, any very significant effect on young children whose interests were a primary consideration. It is in that combination of circumstances that the article 8 factors may be found to out weigh the interest in extradition. Here, although there will be some effect if the appellant is extradited on his family life and more so on his private life, but for the delay, there would be no hesitation at all in his extradition being ordered. In reality, he is responsible for much of the delay and I have to ask myself whether the delay in the period from about 2000 to 2006-2008 unexplained as it is, unoppressive as it is, affords a basis for saying that the interest in extradition is overridden by the interests of the appellant under article 8.
18. In the end, although I have found it a difficult case, in particular in relation to the activated suspended sentence, I have come to the conclusion that extradition is not disproportionate. They are offences of some antiquity but I have come to the view that the appellant, having received a suspended sentence, ought to have complied with the obligations it imposed; they were not particularly onerous, and he failed to do so. He was aware, taking the extradition warrant at face value, that there were potential proceedings in relation to that offence because he was told that he had to give details of his address to the police and not change it without their permission. This is no evidence that he did any of that, and it is important that those who are so told should not come to the United Kingdom and then rely upon the consequential further delay. So I put into the balance essentially against the extradition the early delay and I put into the balance his personal and family circumstances, but I conclude that extradition would not be disproportionate in relation to either the accusation or conviction matter. Accordingly, this appeal is dismissed.