CO/4781/2014 
Neutral Citation Number: [2014] EWHC 4518 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 3 December 2014 
 
B e f o r e: 

SIR STEPHEN SILBER 
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Between: 
PINK 
Claimant

v 

REGIONAL COURT IN ELBAG 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Martin Henley (instructed by Freemans solicitors) appeared on behalf of the Claimant

Mr Brian Gibbins (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
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J U D G M E N T
1.	SIR STEPHEN SILBER:  Piotr Pink appeals against a decision of Senior District Judge Riddle made at the Westminster Magistrates' Court on 10 October 2014 ordering his extradition to Poland pursuant to a conviction European Arrest Warrant ("EAW") issued by the Regional Court in Elbag, in order to enforce 11 months and 28 days remaining from a one year sentence imposed on him for an offence of attempted domestic burglary of commercial premises.  At that hearing an earlier European Arrest Warrant was before the district judge but it  was discharged.  The proceedings against the appellant are regulated by the Extradition Act 2003 because Poland has been a designated category 1 territory for the purpose of the Extradition Act.  
2.	The particulars of the offence with which we are concerned with, which is a second European Arrest Warrant, is that between the 9 to 17 June 2005 the appellant and another broke into a shop at night intending to steal, but they were arrested before they could take anything.  On 23 July 2014 the appellant was arrested pursuant to both certified European Arrest Warrants.  His hearing took place on 10 October 2014.  He gave evidence and a witness statement from his partner was read and as I explained the first European Arrest Warrant was discharged for want of compliance but extradition was ordered in respect of the second one.  

3.	The district judge in his reasons explained that when this offence was committed, the appellant was not long out of prison and that he had numerous previous convictions.  He appealed and it was unsuccessful.  He was required to attend prison but did not do so because by the time the process was completed in Poland the appellant had come to England arriving in July 2006.  At that time his son Kacper would have been about 9 months old.  For about 3 years the family did not live together before the appellant's wife joined in December 2009.  The district judge noted the appellant has worked hard and had supported his partner and his son who is now 9 years of age.  The district judge explained that the appellant was very aware of the outstanding sentence and the expectation he would have to serve it when he came to this country.  
4.	The district judge took the view there had not been unreasonable delays or that the appellant had developed  a false sense of security on account of the delay because it is not normal for a European Arrest Warrant to be issued or served unless there is good reason to believe the appellant was over here.  The district judge took the view first that this case was one of  ordinary hardship and second that to order extradition would  not be oppressive, bearing in mind that the appellant  was a fugitive and cannot rely upon the passage of time.  Thus he took the view that extradition would not constitute a disproportionate intervention or interference with the appellant's right to a private family right or the rights to his family.
5.	The point that is being made correctly by Mr Martin Henry, counsel for the appellant, is that the district judge erred when he said, "In this case there is no exceptional appellant feature or combination of features that mean the interference of a family life is other than proportionate."  It is quite clear now that there is not a test anymore of whether or something has to be.  It must be an exceptionally or compelling feature or combination of them.  That has been made clear in the case of HH and Italy [2013] 1 App 338, first in the speech of Baroness Hale and also in particular paragraph 30 and paragraph 32.  It is common ground between counsel that I must therefore look at the relevant facts of the case when it comes to adverse approval.   
6.	The first point that has been made on behalf of the appellant is that there has been a delay of 9 years between the last offence and these proceedings which encompasses most of the whole of the appellant's child's life.  This is a point that has to be considered very much in the light of the fact that the appellant in this case went to great lengths to conceal his presence in this country.  The district judge explained that he did not provide the Polish authorities with his UK address but he is living with a different identity and he also used an alias name and another year of birth.  So this would have made  it very difficult for the respondent to find him here and I am quite satisfied that there has been no exceptional delay in this country.
7.	The second point that is relied on is that the appellant  has been in this country for 8 years and apart from a single caution in 2011, he has led and industrious and conviction‑free life.  Yet what is clear is that he was quite keen to tell the whole a series of lies in the sense that he used various aliases to avoid being recovered.  
8.	The third point is that his son Kacper who is now 9 will suffer separation anxiety if his father leaves for a second time and therefore that should be a factor in favour of the appellant.  It is said that the family also are financially dependent upon him and he would only have to serve a short period in Poland.  Against that, there appear to be overwhelming matters of importance.  
9.	First, this was a burglary by a season offender which cannot be regarded as trivial.  Second, he would undoubtedly would have received a custodial sentence in the same circumstances in this jurisdiction in the light of his previous record.  Third, he is a classic fugitive who left Poland shortly after his attempt to postpone the serving his sentence had failed and with full knowledge of the outstanding sentences against him.  Fourth, he cannot be said to have turned his life around as he produced a driving licence in a false name.  Indeed I accept that the family will experience hardship in the appellant's absence, but they are not sufficient in my view to outweigh the public interest in honouring the United Kingdom's extradition arguments with Poland.  
10.	It is also noteworthy that in the case of H and H v Deputy Prosecutor of the Italian Republic [2012] UKSC 25 Lord Judge, who was the Lord Chief Justice, explained in paragraph 132 of his speech in a passage with which some other members of the court agreed. 
i.	"When resistance extradition is advanced as effecting each of these cases on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare.  It should only be very rare cases that extradition may properly be avoided given the same broadly similar facts and after making proportionate allowance as we do for the interests of dependent children, the sentencing court will nevertheless be likely to impose an immediate custodial sentence: any other approach will be inconsistent with the principles of international comity." 

11.	There are no such circumstances in this case, particularly bearing in mind that the nature of the offence and the other factors to 	which I have referred.  For all those reasons and notwithstanding the able submissions made by Mr Henry, I have no hesitation in dismissing this appeal.  Thank you very much.

12.	MR HENLEY:  My Lord just one correction and a slip of the tongue, at some point you said he has been here for the whole of the appellant's life and I think you meant the appellant's child's life.
13.	SIR STEPHEN SILBER:  Yes.  I am sure the shorthand writer would put that right.
14.	MR GIBBINS:  My Lord there was other matter.  It may have been my hearing.  I understood my Lord to have said the appellant joined him in 2009 which is the other way round.
15.	SIR STEPHEN SILBER:  The appellant's wife.  I am very grateful for that.  Thank you very much indeed.