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
		3 December 2014

1. SIR STEPHEN SILBER:
2. Introduction
3. Marek Dobryzynski appeals against the decision of District Judge Snow made at the Westminster Magistrate's court on 9 October 2014 by which he ordered the appellant's extradition to Poland on a conviction European Arrest Warrant ("EAW") issued out of the Regional Court in Gliwice, Poland on 1 August 2011. It was certified in this country by the National Crime Agency on 25 June 2014.
4. The European Arrest Warrant related to an aggregate sentence of 20 months' imprisonment imposed on the appellant for first, an offence of nonpayment of child maintenance between 26 March 1993 and 29 May 2000 and second, an "Offence against property" committed between 24 June 2000 and 7 January 2000 which is described as follows:

i. "In the period from 24 January 2000 to 7 February 2000 in Gliwice acting in the circumstances of a continuing offence with premeditated intent of gaining a financial profit while being aware of not possessing any financial resources in his checking and savings account, Marek Dobryzynski caused bank PKOBPSA in Gliwice to disadvantageously dispose of its property amounting to a total of 665 zloty, by withdrawing money from the said checking and savings account by means of a bank card thereby acting to the detriment of the above mentioned bank."

5. The second offence is classified as an offence of fraud in box E of the European Arrest Warrant. A domestic search warrant was issued on 13 March 2009.
6. The appellant was arrested in this country on 22 July 2014. It was not surprisingly conceded by the CPS at an early stage that the conviction for nonpayment of child maintenance -- which was the first offence to which I referred -- did not justify an European Arrest Warrant.
7. The appellant is now 60 years of age. He is a Polish national, who lived in Poland until 13 April 2007 when he came to England. His wife joined him about 18 months later. He was a serving prisoner between February and December 2006 for about 10 months, and he was conditionally released with a number of conditions. As I will explain when I deal with the article 8 issue, he has been in continuous employment in United Kingdom and he is of positive good character in United Kingdom.
8. The Hearing before the District Judge
9. The extradition hearing took place on 9 October 2004 and the issues raised were first whether the remaining offence satisfied the requirement of dual criminality and if it did, second, whether extradition for that offence was compatible with the appellant's article 8 rights.
10. . The district judge held that the appellant's wish to raise dual criminality at that stage constituted an "Ambush" and he refused to adjudicate upon that issue.
11. It was agreed between the parties that I should deal with that issue of dual criminality and it formed a substantial part of the written and oral submissions of counsel.
12. The district judge explained in his decision that the appellant had served part of his sentence in Poland and a period of 16 months was imposed in respect of the second sentence. He noted that after deducting the time spent by the appellant in custody, the outstanding sentence was in the order of 6 months. The appellant's conditional release was subject to a number of conditions including a prohibition on him leaving the country, repayment of the loss and supervision by probation.
13. It was stated by the district judge that the appellant was not given permission to stay in the UK as he asserted in his live evidence and so he was a fugitive. It is now accepted as a result of some incontrovertible new evidence from the judicial authority that this was wrong, because the judicial authority had specifically confirmed by the letter to the appellant dated 14 October that the Polish court itself consented to the appellant's stay and working abroad.
14. This is consistent with what the appellant said in his evidence to the district judge which he rejected .So I will proceed on the basis that the district judge was wrong when he said "there being a clear and determined flight from justice."
15. To the district judge, the high point of the case for the appellant was the age of the offence, but the challenge was "a direct challenge to the Polish court in upholding the rule of law in its jurisdictions". So he took the view that extradition was proportionate.
16. The Submissions
17. The first submission made by the appellant is that the district judge erred in refusing to adjudicate on the dual criminality issue and that is not disputed, but what is disputed is the next submission which is made by Mr Cooper on behalf of the appellant which is that if the district judge had acted reasonably and adjudicated upon the issue of the dual criminality, he would have ruled that the offence did not satisfy the requirements of S.10 and S.65 of the Extradition Act 2003.
18. The second ground is that the district judge erred in finding extradition was proportionate in the circumstances of the case for a number of reasons to which I will return.
19. Was this an extradition offence?
20. So I start with the first issue of whether the offence satisfied the requirements of S.10 and S.65 of the Extradition Act 2003 ("the Act"). The court has to be satisfied that the conduct contained within the European Arrest Warrant is an extradition offence pursuant to S.10 of the Act which provides that:

(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.

(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4) If the judge decides that question in the affirmative he must proceed under section 11.

21. The next provision of significance is that it is provided that when a requested person is being convicted of a an offence, the test of dual criminality contained within S.65 of the Act must also be satisfied. The relevant provisions of that are subsections 2, 3 and 5:

i. (2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;

(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;

(c) the certificate shows that a sentence of imprisonment or another form of detention for a term of 12 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.

(2) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a) the conduct occurs in the category 1 territory;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.

ii. (5) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.

22. The basic legal principles are not in dispute. In Norris v The Government of United States of America [2008] UKHL 16 and 2008 1 App cases the issue had to be decided was whether the assessment for the test of dual criminality should be based on the examination of the elements of a foreign offence whether the court simply had to determine whether the conduct complained of, had it occurred within the relevant part of the United Kingdom would have amounted to the criminal offence.
23. At paragraph 91 of the speeches, it was explained by the Appellate Committee that:.

i. "In short the conduct test should be applied consistently throughout 2003 Act. The conduct relevant under part 2 of that, in that described in the documents constituting the request the equivalent to the Arrest Warrant under part 1, ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence."

24. In a number of cases,there has been consideration as to whether inferences can be drawn from what has been said in the European Arrest Warrant in order to ascertain whether or not the requirements of the offence have been satisfied. In Assange v The Swedish Prosecution Authority [2011] EWHC 2849 Admin, it was held that a possible inference would not be enough, Sir John Thomas, who was then President of the Queens Bench Division, when giving the judgment of the court explained at paragraph 57 that:

i. "The facts set out in the European Arrest Warrant must not merely enable the inference to be drawn that the defendant did the acts alleged with the necessary mens rea, they must be such as to impel the inference that he did so. It must be the only reason where inference should be drawn from the facts alleged, otherwise a defendant could be convicted on the basis which did not constitute an offence under the law of England and Wales and thus did not satisfy the dual criminality requirement."

25. It was also pointed out in paragraph 112 of that judgment that the court executing the European Arrest Warrant should ordinarily accept the classification of the issuing member state unless there is an obvious inconsistency which shows that the conduct alleged did not amount to the offence under the law of that state. At paragraph 115, the court held on the particular facts that there was no inconsistency between what was set out in the European Arrest Warrant and the classification of rape in Sweden.
26. The appellant's case which has been put forward with conspicuous skill by Mr Cooper is that the conduct described in the European Arrest Warrant does not constitute an extradition offence that is consistent with classification afforded to it within the framework list which is that it falls in section E as being an offence of "Fraud."
27. It is said that the salient elements of the conduct are described as being that the appellant withdrew money from his own bank account using a bank card notwithstanding that he was without funds. The means of withdrawal are not specified, and emphasis is placed on the fact that there was not any information as to the existence of a credit arrangement with the appellant's bank. So the case is distinguished from the decision in Ulatowski where it was said that the court had clear information that the appellant repeatedly withdrew monies in excess of an agreed overdraft.
28. Reliance is placed by the appellant upon the decision of Adamczewski v Poland [2014] EWHC 2958 in which in which case, the appellant's extradition had been allowed by the district judge on the basis that the conduct fell within section 2861 of the Polish Penal Code. He had described the conduct as being that he intentionally caused loss to a bank by deliberately using a bank card to go overdrawn on his bank account in order to pay for goods. In that case, the conduct was characterized not as fraud, but as money lending and Mr Justice Cranston allowed the appeal explaining that the conduct and the warrant did not reveal whether the appellant knew he had money in his account. That was held to be a factor of critical importance.
29. Clearly in that case, the European Arrest Warrant was different than the one in this case in which it was made very clear that what was being done here by the appellant was totally unauthorized and dishonest. The warrant used the words and those are the obvious inferences that must be drawn for the wording.
30. First, it stated that the appellant acted with the premeditated intent of gaining financial profit while being aware of not possessing any financial resources.
31. Second, it is said that by withdrawing the money the appellant disadvantageously disposed of the bank's property and third, that it acted to the detriment of the above bank. Those factors when read together showed to me that this was a totally unauthorized dealing which would be wrongful.
32. It is also said by Mr Cooper that the offence in this case does not appear to be an offence under article 2861 of the Polish Penal Code. As I have indicated in paragraph 112 of Assange, it is made clear that the court should ordinarily accept the classification of the issuing member state unless there is an obvious inconsistency.
33. Article 8-2861 states in translation according to Mr Justice Cranston in the Adamczewski case, that
34. "One who aims as deriving material from to making another person misapply, own or someone else's property as a consequence of deliberate misinformation or taking advantage of one misunderstanding of steps being taken containing is subject to imprisonment."
35. In this case, we have no idea exactly which provision in the Code is being relied, but there is nothing that I have seen which would show that the classification of the offence by the Polish authority of fraud is misconceived.
36. So it comes really to this, the respondent, the judicial authority is entitled to rely as they do on section 65 2(b) of the 2003 Act to which I have referred with a certificate as well as the facts that first, it is quite clear that this was dishonest conduct, and second nothing has been shown to show that it is not a criminal offence in Poland.
37. For those reasons and the other reasons which I sought to develop, this ground must fail. Indeed I must make it clear that I am satisfied from the criminal standard of proof that the offence set out in the European Arrest Warrant describes an extradition offence. The relevant mens rea can be inferred from the conduct set out in the European Arrest Warrant, and it is the only reasonable inference to be drawn. Thus I reject that submission of the appellant.
38. Article 8
39. I now turn to article 8. The case appellant relies on the well-known principles which have been set out by the Supreme Court in HH v Deputy Prosecutor of the Italian Republic of Genoa [2010] UKSC 25 and also what was previously stated by that court in Norris v The Government of United States 2, [2010] 2 App cases 487. Baroness Hale sets out a number of very important principles in paragraph 8 of her judgment in HH in this way:

i. "We can, therefore, draw the following conclusions from Norris:

(1) There may be a closer analogy between extradition and the domestic critical process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(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 conditions; 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 inference with family life will be exceptionally severe."

40. The absence of a test of exceptionality under article 8 was considered by Lord Wilson at paragraph 161 where he stated:

i. "It is now clear that the law does not welcome, still less require, an examination of whether the circumstances disclosed by the inquiry under article 8 are exceptional. In the Norris case [2010] 2 AC 487, cited above, there are helpful observations by Lord Phillips PSC in para 56, by Lord Hope of Craighead DPSC, in para 89 and by Lord Mance JSC in para 109, about the snare that, as in many other areas of the law, a test of exceptional circumstances sets: for it may lead to the wrongful downgrading of the significance of circumstances just because they happen not to be exceptional or to their wrongful upgrading just because they happen to be exceptional. "Take", suggested Lord Mance JSC at para 109, "a case of an offence of relatively low seriousness where the effect of an extradition order would be to sever a genuine and subsisting relationship between parent and baby": the circumstances might not be exceptional yet the proper application of article 8 might lead to a refusal to make the order. Lord Kerr JSC observed, at para 136 that "the importance of preserving and effective system of extradition …… will in almost every circumstance outweigh any article 8 argument" but he explained that such was a fact which exemplified the likely result of the inquiry rather than furnished the criterion by which the issue should be revolved. I should add that I am not convinced that, in the 11 appeals to the Divisional Court cited in paragraph 22 of Baroness Hale JSC's judgment, the judges fell, as suggested, into the error of applying a test of exceptional circumstances."

41. The grounds on which it is said that it would not be proportionate to order the extradition of the appellant are first, that he has only got 6 months to serve and that he has served a substantial period, second, that he acted properly in coming to this country with permission, although it is accepted that he then went to ground, third, the delay, fourth the nature of the offence, fifth, the fact that he is married and his wife has come over to the United Kingdom and what has been stated in his witness statement about the fact that his wife has had problems with alcohol in the past and that he is worried if he was extradited she would resort to drinking more frequently and would not be able to control it.
42. The final point made is that the appellant says his wife could not cope and would not be able to afford matters. He points out that he has been working consistently, and as I have said, he has had a very good work record and general record since has come to this country and has worked for the Green Half Bakery for almost 6 and a half years.
43. It is difficult to quite assess what the position will be with the appellant's wife. She did not give evidence before the district judge. There is no medical evidence relating to her at all. It is also clear that she must have survived and been able to look after herself for 18 months between the time the appellant came to this country in April 2007 and when she came over in November 2008.
44. I do not consider that there has been substantial culpable delay, bearing in mind that the Regional Court in Gliwice revoked the conditional release of the appellant on 7 August 2008 because he had breached the conditions of his release, and it then acted promptly by summoning the appellate person before then issuing a national Arrest Warrant in March 2009. When the Polish court was notified that the appellant was in United Kingdom, they issued an European Arrest Warrant on 1 August 2011. It is also clear that in every case where there is extradition, it does cause difficulties for other members of the family.
45. I conclude that it would not be disproportionate interference with the appellant's rights to private and family life to order his extradition in the light of the factors to which I have referred, namely, the absence of any children of the appellant, the absence of any evidence from the appellant's wife about her position, the serious offence which he committed and the length of time which remains outstanding as well as the need for this country to give effect to the framework direction.
46. It might be some consolation to the appellant to know that his case is being put forward with commendable and impressive skill by Mr Cooper but I must dismiss the appeal. Thank you both very much.