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
		1 December 2014

1. SIR STEPHEN SILBER: Jaroslaw Warzynski appeals against a decision of District Judge Coleman made at the Westminster Magistrates' Court on 8 October 2014 to order his extradition to Poland pursuant to a European Arrest Warrant. The European Arrest Warrant was issued on 14 May 2012 and it was certified by the Serious Organised Crime Agency on 12 May 2014.
2. His extradition is sought to serve a sentence of 14 months' imprisonment for an offence of non-residential burglary, which took place between 9 and 10 November 2013. The sentence was originally suspended for 4 years, but it was activated on 15 July 2009. He was also ordered to pay a fine of approximately £80, which he has subsequently paid.
3. The appellant was 16 years of age at the time of the offence. He broke into a school gym with others and stole equipment for weight training to the value of about £200. He is now a 28-year-old man with a partner and a permanent job in the United Kingdom. The issue raised is whether his extradition is proportionate in the light of the appellant's Article 8 rights.
4. The district judge, in dealing with this case, heard evidence for the appellant, who was cross-examined but he was not represented. The district judge noted that the appellant accepted that he was in court when the sentence was passed in Poland. He was 16 when he committed the offence and 19 when he was sentenced. He accepts it was likely that he was told to stay in touch with a probation officer, but the district judge noted that two weeks after being sentenced, he left Poland. He had at that stage not seen the probation officer nor paid the fine.
5. He worked and lived in Wales for about three years and then accepted voluntary redundancy as he had a job offer in London. He has worked in London for three years. He then moved with his employers to Hampshire and he has lived there since that time. The appellant has a partner who does not work, not because she is unable but she has been unable to find work locally. She has some minor health problems but is generally well. The appellant has no children.
6. The district judge found the appellant to be a sincere young man who had worked in the country and built a life for himself. She noted that there were two character references from a married couple who were friends, and they spoke about the appellant in "extremely flattering terms". He has a caution for assault from 2014, but otherwise he has led a blameless life. The district judge noted that the offence took place almost 11 years earlier, and that the appellant was very young when the offence was committed.
7. The district judge then carried out a balancing exercise, and took the view that the factors in favour of extradition were first the public interest in honouring our international treaties; second the fact that the appellant had left Poland only two weeks after his suspended sentence order was made, without complying with the terms; third the burglary could not be regarded as a trivial offence.
8. The district judge took into account the factors against extradition, which were first his relatively blameless life led here,his steady employment in this country, and third the age of the matter. She concluded that it was not one of those rare cases where the effect of extradition on the requested person would be so severe as to outweigh the public interest in extradition.
9. Ms Natasha Draycott, counsel for the appellant, asks me to overturn that decision. She reminds me of many of the important decisions on this, such as Norris v Government of the United States (No 2) [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25. The current position has been summarised by Sir John Thomas, who was then the President of the Queen's Bench Division, in JP v The District Court At Ústí Nad Labem, Czech Republic [2012] EWHC 2603 at paragraphs 13 to 15:

i. "13. Our task is to examine carefully the nature and extent of the way in which extradition will interfere with family life. In each of these cases where the interference relates to the children's rights, we must make a proportionate judicial assessment of the conflicting public interests of safeguarding the rights of the children under Article 8 and the obligation under the Framework Decision to return the appellant to serve her term of imprisonment, the strong public interest in the extradition of those convicted, the honouring of extradition treaties and ensuring that the United Kingdom does not become a safe haven for those who have committed a criminal offence (see Lord Judge in HH at paragraphs 121and 125; Lord Wilson at paragraphs 152, 156 and 167).

ii. 14. We make that assessment on the basis that the children's interests must be at the forefront of the decision maker's mind and be a primary consideration. (see Lord Mance in HH at paragraph 98 and Lord Wilson at paragraph 153), though the order in which their interests should be considered may be more a matter of debate (see Lady Hale at paragraph 33, Lord Mance at paragraph 98, Lord Kerr at paragraph 144 and Lord Wilson at paragraph 153).

iii. 15. It is permissible as Lord Judge explained at paragraph 132, where the interests of the child might tip the sentencing scale here, to consider what a court sentencing in this country would do:

iv. '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. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence).'"

10. Ms Draycott explains that there are very substantial factors in this case which show why the appeal should be allowed. First, she said that the offence took place more than 11 years ago, which she points out, quite rightly, was at a time when the appellant was 16 years old. Second she reminds me that Ouseley J, when giving judgment in Chmura v District Court of Lublin, Poland [2013] EWHC 3896 (Admin), explained at paragraph 10:

i. "... between the age of 20 and 28 a young man with perhaps a wilder side will settle down, mature and become a model adult. It is the actual change in life and age which is important in judging the proportionality of a return to serve a sentence."

11. Of course thatfactor carries a substantial amount of weight in this case.
12. The third factor she relies on is that although the appellant does not have any dependants here, he has established a private life, he is engaged to his partner of two years and they are planning to start a family. A fourth factor on which she places reliance is delay, which is relevant to the assessment of proportionality. Again, she makes the point that this offence took place three years ago, and there is no reason why it took three years for him to be sentenced for the offence and a further three years to activate it, with the European Arrest Warrant issued three years later and certified two years later. This has to be seen against the fact that the appellant has lived openly in the United Kingdom.
13. These are all matters of very substantial importance to which I do give very substantial weight. But there are, in fact, powerful countervailing factors: firstly, this is a serious offence which would have no doubt led to a prison sentence in this country; secondly, the appellant was a fugitive - he deliberately came over to this country very shortly after the sentence was imposed and he did not keep in contact with the probation officer; third, there would obviously have been substantial difficulties in finding him. I have come to the conclusion that, notwithstanding the able submissions of Ms Draycott this is not one of those rare cases where the effect of extradition on the requested person would be so severe as to outweigh the public interest in extradition.
14. For all those reasons, I have come to the conclusion that this appeal must be dismissed. It must be some consolation to the appellant and his fiancée that every argument that could have been put forward on his behalf has been put forward admirably on his behalf by his counsel, Ms Draycott.