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
		5 November 2014

SIR STEPHEN SILBER:

1. Introduction
2. Mikal Turek appeals against a decision of District Judge Zani to order the appellant's extradition on 7 August 2014 (" the August Order")in respect of a European arrest warrant which had been issued by the Regional Court in Radom, Poland in order to enforce a 6 month sentence imposed for an offence of theft of clothing committed on 5 April 2008, when the appellant was aged 19.
3. On 1 August 2013, a 6 month sentence of imprisonment was imposed. In late 2012 and early 2013 the appellant moved to the United Kingdom. On 26 March 2013 a European arrest warrant was issued, but it was not transferred to this country until 7 April 2014. On 18 April 2014, the European arrest warrant was certified in this country. On 26 May 2014, the appellant was arrested and, as I indicated, his extradition was ordered on 5 August 2014. The appellant, at the August hearing, adduced his statement and gave additional evidence and was subject to some short cross-examination.
4. A previous extradition order was made on 7 February 2014 against the appellant ("the February Order") pursuant to an European arrest warrant There was an unsuccessful appeal against that order and the appellant has been in custody in relation to that European arrest warrant since 29 October 2013. which was 10 months before the August order was made.
5. The Grounds of Appeal
6. The grounds of appeal which were raised below and which are still being pursued are, first, that the appellant's extradition would be incompatible with his article 8 rights; second, that the appellant was not deliberately absent from his trial (see S.20 of the Extradition Act 2003); and, third, that his extradition would be oppressive due to the passage of time (see S.14 of the Extradition Act 2003).
7. Article 8
8. The District Judge explained (at paragraph 14) of his judgment in relation to the appellant that:

i. "He had been in custody since his earlier arrest warrant in October 2013. He has proudly produced a number of certificates that he had been awarded since his detention at HMP Wandsworth. He has clearly used his time in custody very productively. His partner and their five year old daughter returned to Poland. In my view, there is no merit in the article 8 challenge."

9. The appellant contests that for a number of reasons including because Ms Westcott submits that that the appellant will shortly have served his particular sentence under the August order. It is said that at the earliest point when he could be extradited pursuant to any order which I might make in relation to the August Order, he would then only have one week of his 6 month sentence remaining to serve, That calculation is on the basis that he had been remanded in custody in relation to the August order from 26 May 2014 until the expiry of 14 days from today, which is 19 November 2014.
10. Miss Westcott reminds me of the important matters relating to Article 8 which have been explained in paragraph 8 of Lady Hale's speech in H~(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC, 388. Again it is common ground that a court can and must look at a variety of different factors in deciding if interference with a person's Article 8 rights is proportionate. I agree and that in caring out that exercise, i must bear in mind that, as Ouseley J explained in Chmura v The District Court of Lublin Poland [2013] EWHC 3896 (Admin), at paragraph 26 :

i. "Even if there were no release the impact of extradition on his life after so long and to serve a fairly short sentence would be disproportionate. As I have said elsewhere, the fact of extradition itself brings about a significant disruption to life, employment and so on, quite beyond the service of a short term of imprisonment."

11. Miss Westcott developed her argument that it would be disproportionate to extradite the appellant by stressing that the appellant has already spent three additional months in custody since the August order and, as I have explained, she says that there is only one month of his six month sentence remaining. She also points out that the appellant has behaved well while at HMP Wandsworth and that he might well have got discretionary release in this country after serving just three months. Miss Westcott fortifies her submissions by saying that the appellant was settled in this country with his fiance and child before the extradition proceedings began. She also says that there was an unexplained period of delay between 2008 and 2013 (that is between the time when his sentence was imposed on 1 August and the time when the European arrest warrant was issued) and that was not the appellant's fault.
12. Another made point by Miss Westcott is that the offence in the August order was not serious, but that in any event it is now stale and was committed when the appellant was a teenager. On that basis she contends that I should allow the appeal on the article 8 grounds.
13. The case for the respondent is that it is not correct that the appellant has only about a week of his sentence left to serve, taking account of the time served on remand. It is pointed out that as a result of the February Order the appellant was already in custody pursuant to that earlier arrest warrant, which related to an array of criminal conduct committed from 2008 to 2012. There were sentences of first: 1 year, 5 months, 28 days; second, 2 years; third, 1 year, 11 months and 28 days and fourth, 4 years, 9 months and 27 days.
14. The District Judge pointed out that it was not known whether those sentences were consecutive or concurrent. Thus the District Judge took the view that there was an extant order for the appellant's extradition and he therefore had to serve either 2 years if the sentences were concurrent to each other or approximately 8 years if they were consecutive to each other.
15. It is said on behalf of the judicial authority that it is not correct that the time that the appellant has actually spent in custody since the August order should be attributed to the August order, bearing in mind he had already been in prison under the February order. In my view, there is no evidence whatsoever that under Polish law the time that he had spent in custody would all be attributed to the August extradition order rather than to the February order. Indeed common sense suggests that as he had already been subjected to an earlier extradition order (the February order), that the time spent in custody should be dealt with in attributed to that order.
16. In the absence of any evidence to the contrary, I agree that the correct approach is to assume that the Polish courts would credit the time served here against the total sentences which he faces, which are either two and a half or eight and a half years.
17. I also bear in mind that the appellant does not have dependent relatives from whom he would be separated were he to be extradited. I know it has been said if he is not extradited his partner and child will come back to this country, but at present they are in Poland.
18. Again another factor to be taken into account is the District Judge's conclusion that the appellant was a fugitive, but that is controversial, and that is a matter to which I shall return. It was also submitted that this was a trivial offence, but it is noteworthy it was committed in company with others as part of a premeditated plan with the intention to re-sell the items.
19. Lord Judge (then Lord Chief Justice) in H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC, 338 explained (at paragraph 132) that:

i. "When resistance to extradition is advanced, as it is in effect 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."

20. In this case the dependent children of the appellant are not based in this country and would therefore be parted from their father irrespective of whether he is extradited. This fact fortifies the comments made by Lord Judge that it is only in very rare circumstances that extradition would be avoided if a sentencing court here would be likely to impose an immediate custodial sentence. I am quite satisfied in this case that an English sentencing court would have done so, even though I know very little about the appellant's past, but it seems quite likely that some of the offences dealt with in the February extradition order might have preceded the offence with which this case is concerned.
21. In reaching that conclusion, I have not overlooked the point made by Miss Westcott, which is to place reliance on the decision of this court in Nowak v Poland [2014] EW8C 3466 (Admin) in which I took the view that I could refuse extradition on one count which related to the possession of 1.2 grams of Marijuana while allowing it in connection with a supply offence. In that case I had focused on the lesser offence and took the view that it did not merit extradition. The facts are different in this case. For all those reasons, I therefore am unable to accept the article 8 objection to extradition.
22. Deliberate Absence
23. This issue is based on S.20 of the Extradition Act which provides that:

(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights-

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

24. The District Judge, in the August decision, had regard to the statements at section D of the European arrest warrant. He noted the appellant's evidence and he reached the following conclusions in relation to the appellant:.

i. "21.However, he did not provide any further information or any documentation about this supposed fine, such as:

(a) Whether he ever received any written/other details of the fine?

ii. b) If so, did he make any such (or even partial) payment?

iii. (c) If not, did he make any enquiry of the police at any stage about the fine before leaving Poland some years afterwards?

iv. "22.Having had an opportunity to assess MT giving evidence, I was not persuaded by what he had to say about the matter. I found his evidence to have been vague and unconvincing.

v. "23.The Judicial Authority, in the passages quoted heretofore in box D of the EAW, have satisfied me beyond reasonable doubt that MT was aware of the scheduled trial date and I find that he deliberately chose not to attend. He can derive no benefit from this court's finding that he is a fugitive and thus the provisions of s.20 of the 2003 Act are of no benefit to him."

25. The appellant's case entails relying on paragraph 15 of the judgment of Mitting J in Bicioc v Romania [2014] EWHC 628 (Admin) where he explained:

i. "I am satisfied the proper interpretation of section 23 of the 2003 Act requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself. It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable."

26. It is said by Miss Westcott that the European arrest warrant does not demonstrate deliberate absence to the criminal standard, but that it merely asserts that the appellant was aware of a scheduled trial without giving any reasons why this is so. Again it is said by her that it does not follow that because the appellant was represented by a court appointed defence counsel that he gave his lawyer instructions or was aware of the trial date. Miss Westcott contends that on the facts it is not even clear when the trial took place.
27. It is said by her that the District Judge erred because he did not apply Mitting J's approach correctly, and that he should not have reached the findings which he did. The respondent's case is that that the Distinct Judge was entitled to conclude that the appellant was a fugitive and that she is so precluded from relying on S.14. I agree that the European arrest warrant makes it clear that the appellant had been made aware of the scheduled trial date and had appointed a lawyer to represent him.
28. The District Judge concluded that the appellant accepted that he had been detained and interviewed on 5 April 2008, and although he claimed the matter had been resolved by him by being ordered to pay a fine, he did not provide any further information. The District Judge, who had the benefit of seeing the appellant, was quite satisfied that his evidence was vague and unconvincing, and I have already summed up the District Judge's finding that he had been satisfied beyond reasonable doubt the appellant was aware of the date and that he deliberately chose not to attend. It had also been held that he had been a fugitive. So S.20 does not assist the appellant.
29. Passage of Time and Oppression
30. S.14 of the Extradition Act states that:

i. "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)."

31. The District Judge explained that in his view the appellant had deliberately absented himself from the trial and that he cannot derive any benefit from the provisions of S.14. This is challenged by the appellant who says that the District Judge was wrong to find that the appellant was a fugitive, because the appellant's evidence was that he together with another friend admitted the offence in an interview at the police station. He did not have a lawyer and he was told that he would receive a financial penalty notice and the matter was disposed of at the police station. I have already explained the difficulties that I have in upholding that point. It is also said by Miss Westcott that the appellant was not told about the court date; that he did not appoint a lawyer;that he remained in Poland for more than 4 years without losing contact with the Polish authorities, even giving evidence against a gang involved in car thefts and he was not involved in the sentences imposed on him until he was arrested at the start of these proceedings.
32. It is said that the appellant's awareness of other cases against him were not sufficient to make him a fugitive in relation to this case and as with the situation when the appeal was allowed in Dariuz Przbysz v Regional Court Szczecin Poland [2014] EWHC 1240 (Admin).
33. So it is said that aside from what is described as the vague assertions in section D of the European state warrant, this is not a case where the respondent states that the appellant was hiding or was a fugitive in terms. It is accepted that the District Judge was entitled to form his own views about the appellant's credibility
34. It is also said that there was oppression in this case because there was no explanation for the gap between the offence on 5 April 2008 and the sentence imposed on 1 August 2014. But the District Judge found that even if S.14 applied, extradition would not be oppressive.
35. The respondents really repeat the points which I have dealt with earlier when I dealt with S.20. Indeed, it seems to me that having considered the matters, that the District Judge was entitled to reach the conclusions that he did reach, and there is also no evidence that I have found that there was any oppression that arose in this case.
36. Thus, having considered the admirable and clear submissions of Miss Westcott, this appeal must be dismissed.
37. Thank you for your for your skeletons and the help you have given me.