England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		24th November 2014

Monday 24^th November 2014

SIR STEPHEN SILBER:

1. Grzegorz Kolasinski appeals against the decision of District Judge Coleman made at Westminster Magistrates' Court on 10^th October 2014 ordering his extradition to Poland on a conviction European Arrest Warrant issued out of the District Court in Gorzow Wielkopolski on 28^th May 2008 and certified by the Serious Organised Crime Agency on 21^st January 2010. The appellant's extradition is sought to serve a sentence of imprisonment of one year five months and 28 days in respect of one offence of appropriation of money from a number of named individuals to a total sum of £14,000. The sentence was originally suspended, but it was activated on 23^rd July 2007. The appellant was present when the suspended sentence was imposed, but the activation took place in his absence.
2. The grounds of appeal are that the District Judge erred in ordering the appellant's extradition on the basis of section 21 of the Extradition Act 2003 and Article 8 of the European Convention on Human Rights.
3. At the forefront of the appellant's case is the issue of delay, coupled with the issue relating to the appellant's child. The appellant and his partner have a son who was born on 5^th September 2007 and is now 7 years of age. No evidence was adduced to show that the appellant's partner would be unable to care for their son, although she is taking medication for depression.
4. The major factor which is relied on is that of delay. It is said that there were three periods of delay. The first period was between the imposition of the sentence, which was originally suspended on 28^th July 2004, and the issue of the European Arrest Warrant on 28^th May 2008.
5. In answer it is said by Miss Nice, who appears for the Judicial Authority, that this was not a period of delay; it was a period during which the appellant ought to have been repaying money.
6. The second alleged substantial period of delay was between the issue of the European Arrest Warrant and its certification as a Part 1 warrant on 21^st January 2010, particularly in the light of the fact that the respondent Judicial Authority knew that the appellant was resident in Corby, because on 28^th May 2008 payments of child maintenance were collected by the Corby Magistrates' Court on behalf of the respondent Judicial Authority.
7. It is a notorious fact that it is time-consuming and expensive to locate a person who has moved to another country. The mere fact that the Polish Family Courts might have known of the appellant's whereabouts, does not mean that the Polish Criminal Courts would as well. Again, I do not consider this to be a seriously culpable period of delay.
8. The third period was between the certification of the European Arrest Warrant and its execution on 12^th January 2014. Again, there are notorious difficulties in locating an appellant.
9. In relation to the child, there is nothing particularly unusual about a partner being left having to look after a child.
10. On the question of delay, Mr Atlee advances a formidable argument in which he refers to cases in which delay has been regarded as being of great significance: for example, Bondziul v Provisional Court of Lublin (Poland) [2013] EWHC 3648 (Admin), in which Cranston J allowed an appeal. It must not be forgotten that all these decisions are fact sensitive. I do not consider that that case helps me in any way in this case.
11. At the end of the day, it is necessary to bear in mind the well-known principles by which extradition has to be dealt with, and in particular the statement of Lord Judge CJ (as he then was) in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338:

"132. … 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. …"

12. I have no doubt that this is a case in which a custodial sentence would have been imposed in this country. There is nothing unusual about it. Indeed, in many ways it is at the lower end of cases in which Article 8 is engaged because there is no evidence to show that the appellant's partner and mother of the child would be unable to look after him.
13. For those reasons I dismiss the appeal.
14. Mr Atlee drew my attention to the fact that there are family proceedings due to be heard in the Corby Magistrates' Court on 11^th December 2014, by which the appellant could be at risk of imprisonment and sequestration of his assets. Thus it is said that it is imperative that he should be able to attend those proceedings.
15. Miss Nice sensibly accepted that the order for extradition, which has been upheld by me, should not take effect until a period after 11^th December so that the appellant then has the opportunity to make representations on that occasion. The appellant also has a limited right to apply to this court to defer the extradition order after that hearing, but he should be in no doubt that it will be very difficult for him to justify it. He will need to put forward clear evidence in support of such an application, bearing in mind that on the substantive issues he has been unsuccessful.