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
		19 November 2014

1. SIR STEPHEN SILBER: Dariusz Dolinski appeals against a decision made by Senior District Judge Riddle on 9 September 2014 at Westminster Magistrates' Court by which he ordered the appellant's extradition to Poland on two European Arrest Warrants.
2. The first European Arrest Warrant relates to the fact that on 14 March 2011 it is alleged that the appellant used a falsified employment certificate to obtain a loan of 840 PLN. A warrant of preventative detention for 14 days was issued by the Regional Court of Zary on 31 July 2012 and the European Arrest Warrant was issued on 27 November 2013.
3. The second European Arrest Warrant, which is a conviction warrant, relates to offences which occurred on 24 and 25 May 2011 when the appellant and others threatened to kill a man and a woman and burn their house. They assaulted the man and they forced the woman to mismanage property to a total value of 4,000 PLN, which is about £882.
4. On 20 September 2011, the appellant was present at the Divisional Court of Zary when he was convicted and sentenced. On 16 January 2012, the sentence was varied to one of 2 years and 6 months' imprisonment, of which 1 year, 10 months and 2 days remained to the served.
5. The second European Arrest Warrant was issued on 30 December 2013. Both European Arrest Warrants were certified by the National Crime Agency under section 2(7) of the Extradition Act 2003 on 12 May 2014.
6. Poland has been designated as a Category 1 territory for the purposes of the Extradition Act 2003 and the applicable provisions are therefore set out in Part 1 of the Act.
7. On 27 June 2014, the appellant was arrested pursuant to both certified warrants. He was produced on the same day for an initial hearing. Following completion of the initial formalities the extradition hearing was opened and adjourned for a full hearing on 1 September. It was indicated on the appellant's behalf that he would rely on Article 8. He was directed to serve a proof of evidence and he was remanded in custody but on 4 July 2014 he was admitted to conditional bail.
8. The extradition hearing was adjourned when it first came up on 1 September and it took place on 4 September 2014 when a contested hearing took place before Senior District Judge Riddle. At the hearing the appellant relied on both section 14 of the Extradition Act and Article 8 of the European Convention on Human Rights. The matter was adjourned for judgment and, as I have indicated, on 8 September 2014 Senior District Judge Riddle ordered the appellant's extradition and allowed him on bail subject to certain conditions.
9. Submissions
10. The appellant, who has appeared in person today, has indicated that, unlike at the previous hearing, he only relies on Article 8, although at the earlier hearing he had also relied on the fact that his extradition would be oppressive by reason of the lapse of time.
11. For the reasons which have been explained by the District Judge, I think he was quite right not to rely on those points, which have been adequately and carefully answered in the respondent's skeleton argument. For that reason I will only deal with the Article 8 issue.
12. As is well known, the principles relating to Article 8 in extradition cases have been explained by the Supreme Court first in the case of Norris v Government of the United States of America [2010] UKSC 9 and more recently by the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.
13. The way in which the District Judge dealt with the matter in his judgment is that he explained that little evidence had been produced about the appellant's work in this country, the evidence about his family life was confusing but that he accepted that he had a wife and that she had a 17-year-old son, a 12-year-old daughter and a baby, David, with the defendant as the father on the birth certificate, and the appellant told me that David is now 15 months old.
14. The District Judge continued by saying that the appellant was a fugitive from a sentence for a serious offence for which he was convicted in his presence. The District Judge took the view that a similar offence in this country would attract a custodial sentence despite his family obligations. He accept that Article 8 was engaged, particularly for the youngest child. The judge then said:

i. "Bearing in mind the importance of honouring our international treaty obligations, and bearing in mind that this defendant is clearly a fugitive from Poland, it is far from disproportionate to order his extradition."

15. The District Judge explained that he was conscious that the while the appellant would be back in Poland life would be harder for his partner, who has three children to raise on her own. The District Judge did not underestimate the value of a father's presence or the hardship for her and her children but he explained that this it not uncommon and many women bring up children without a father to help. Indeed his wife had done so in previous years.
16. He then moved on to the accusation warrant, which he quite rightly said was a less serious matter but he said that it had occurred against the background of offending in Poland and he considered that it could not be considered to be trivial. But the judge explained that it was not clear when the offence came to light but the passage of time argument had to be considered against the background of his fleeing Poland on the serious conviction matter.
17. The judge accepted that he was entitled to argue passage of time and that he did not know of the allegation when he left Poland. Nevertheless, he was not prevented from leaving Poland but the judge assumed that although the appellant was a fugitive on the other matter, he was entitled to argue that delay was a valid point in his case. But the judge concluded that extradition is not oppressive because in any event he had to be extradited to serve his sentence on the conviction warrant and as he would be in Poland anyway the District Judge took the view that he should face trial on the accusation matter. Therefore the argument based on Article 8 failed.
18. All this has got to be considered against what has been stated in HH and in particular a useful starting point is what Baroness Hale explained at paragraph 8, in particular when she said in subparagraph (7), having summarised the conclusions, that "it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe". I also bear in mind what she said in paragraph 30 when she pointed out it is necessary to weigh the nature and gravity of the interference with Article 8 rights against the importance of the aims pursued and explained that one would have to reach a fact sensitive decision.
19. To my mind, there is nothing wrong with the approach of the District Judge. A further reason for supporting his conclusion is the well-known statement of Lord Judge, who was then the Chief Justice, in paragraph 132, where he said:

i. "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."

20. I have no doubt that so far as the conviction warrant is concerned, the appellant would have been sentenced to a term of imprisonment in this country. There is nothing that has been said to show that this is one of those very rare cases and I also bear in mind what Baroness Hale has said. Therefore, so far as the conviction warrant is concerned, in my view, the appeal has to be dismissed.
21. So far as the accusation warrant is concerned, the reasoning of the District Judge was, in my view, correct because as the appellant had in fact to be sent back to Poland for the conviction warrant there would be no excessive interference with his rights if he went back to face the accusation warrant, particularly bearing in mind the treaty obligations imposed on this country.
22. Therefore, notwithstanding what has been said by the appellant, this appeal must be dismissed.