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
		17th November 2014

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Ikram given on 1st July 2014 that the appellant be extradited to Poland to serve sentences of 2 years' imprisonment under two different arrest warrants. Thus, there is on the face of it a total of 4 years to be served.
2. The two offences which lay behind the warrants were committed a considerable time ago, one in 2003 and one in 2005. Both were offences of fraud involving in the one case, that is the 2005 offence, something in the order of £300 and in the earlier one something in the order of £6,000. However, it is clear that this appellant was not by any means of clean character because he was serving sentences of imprisonment between 2006 and 2009 in relation to other matters.
3. So it was that his conviction for the relevant offences and sentences took place in 2007. However, as is known to be the system in Poland, it is often the case that sentences are not to take immediate effect usually due to overcrowding in the prison system and those convicted frequently have to wait until they are summoned to serve their sentences. This is an unsatisfactory situation and certainly has led to many leaving the jurisdiction for obvious reasons. But, in his case, apparently there was also a condition that he pay compensation and obviously the condition that he remain in contact. It seems that he did not pay any compensation. He appreciated in those circumstances that the day was coming closer when he would be required to serve the sentence and albeit it was a lengthy period in 2012 he decided to come to the United Kingdom without notifying the authorities that he was doing so. In the result it was not until 2013 that his whereabouts were ascertained and the arrest warrants were issued. He has a partner, whom he met and came together with some 12 months ago. He had a partner before that but unfortunately that relationship broke down.
4. Of course he has his own Article 8 rights which are affected by extradition and there are the rights of his partner also to be taken into account. However, as is accepted on behalf by Mr Henley there is no question but that having regard to the authority of the Supreme Court in HH, if they stood on their own the circumstances of him and his partner would not establish that extradition was to be regarded as disproportionate.
5. However, the added factors which had to be considered are first, the length of time since these offences were committed and indeed since the sentences were imposed, coupled with the fact that unfortunately he suffers from and is undergoing treatment for tuberculosis. He has a history of alcohol abuse. Alcohol, as is known, can damage the liver. Apparently the treatment that is needed for his tuberculosis is also one which can have an effect on the liver. Accordingly the drinking of alcohol has that much worse an effect upon him and also can affect whether the tuberculosis treatment can be effective. He has in fact been an in-patient in hospital. When the matter came before Mitting J in September he was concerned that there should be an update as to the medical conditions and the treatment, and more importantly perhaps, that the Polish authorities should be aware of this medical condition and should indicate what they propose to do so far as any ongoing treatment is concerned. The update that has been produced shows that he, as I have said, was an in-patient and unfortunately there has been a suspicion that he has continued to drink alcohol when outside the hospital. But his doctor has said that the plan is that he continues the current arrangements for his treatment that he is receiving for a further 6 weeks but because of the risk that he may drink and the difficulty that that could create it may be that such treatments cannot be continued. It is clear that the appellant is sadly his own worst enemy in that respect.
6. The Polish authorities have been notified and information has been given from a district court judge that anti-tuberculosis medication will be administered at the moment of his surrender and in Poland it is said in the prison condition a possibility of tuberculosis treatment at the hospital penal institution in Potulice exists.
7. Mr Henley submits that it is not as clear as it ought to be whether he will in fact be treated in hospital. However, I make it plain that when he is extradited, because I am not going to allow this appeal, there must be sent with him all proper information, that is to say, a statement no doubt from the doctor treating him, coupled with any notes relating to his treatment, so that the Polish authorities know precisely what treatment is being administered and what should continue to be administered in order to treat him for his tuberculosis.
8. So far as delay is concerned, Mr Henley has submitted that the District Judge was wrong to refer only to section 14A of the Extradition Act, as he clearly was because 14A refers to accusation cases. He should also have referred to section 14B. Section 14B deals, on the face of it, with conviction cases. This is the section read as a whole says:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—

(a) committed the extradition offence (where he is accused of its commission), or

(b)become unlawfully at large (where he is alleged to have been convicted of it)"

9. It is plain from the language, particularly the fact that accusation is referred to specifically in A and conviction specifically in B, that A and B are truly alternative. It seems to me that it is quite impossible to read them as cumulative. True it is that it is perhaps strange that the passage of time since the offence, or at least since his conviction should necessarily be the time in question. I say that because unlawfully at large will only have effect in most cases, particularly where there are suspended sentences whether because prisons are full or because they specifically are suspended sentences, that unlawfully at large will not apply until he leaves the country. One might have expected to refer back to the date on which he was convicted of the offence. However, that is not what the Act provides. As it says it seems to me on the language there is no possibility of reading the "or" as conjunctive as opposed to disjunctive.
10. However, it perhaps is not of enormous materiality because quite clearly when considering proportionality under Article 8, delay is a factor that the court can properly take into account. Undoubtedly here there has been delay but it has clearly been the case that the appellant on the findings of the District Judge which he was entitled to reach that he was unlawfully at large, since leaving the country and he knew perfectly well that he had to pay compensation which was not paid. It is right to say that the District Judge heard the appellant and saw him give evidence and was singularly unimpressed with him as a witness.
11. There is a serious error in the District Judge's judgment in as much as when considering Article 8 and proportionality he refers only to Norris and talks in terms of exceptionality. That is manifestly wrong. However, that does not mean that the appeal must be allowed because it is for me to decide on the material now before me whether it would be disproportionate for him to be extradited. For the reasons that I have given I do not believe that it would. I should add this. Clearly, on the face of it, there are two sentences of 2 years to run consecutively. I know that it is open to the Polish authorities, or rather it is open to someone such as the appellant when extradited to make an application to the court in Poland to consolidate the sentences and also to reduce them if he shows that he has behaved well since they were committed. Sadly I do not think that he will be able to show that very easily but he will be entitled to rely on delay and on the fact that he knew has a partner who will obviously be affected by his extradition to Poland. Normally, as I understand it, a sentence of imprisonment will only require custody for half of the time which is to be severed. Also no doubt the court in Poland can take into account the fact that he does sadly suffer from tuberculosis. That is a matter which again he may be able to have taken into account in his favour.
12. Subject therefore to the requirement that the necessary medical information and records are sent with him when he is extradited, this appeal is dismissed.