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
		26 February 2015

1. LORD JUSTICE AIKENS: This is an appeal by Igor Tyza, now aged 36 ("the appellant") against the decision of District Judge Coleman ("the DJ") to order his extradition to Poland. That order was made on 27 October 2014. The extradition of the appellant is sought to serve the remaining 1 year 9 months and 7 days of the total sentence for 13 offences of 3 years and 4 months. Poland is a category 1 territory for the purposes of the Extradition Act 2003 ("the EA") so that Part 1 of the EA applies to the extradition proceedings including this appeal which is brought under section 26 of the Act.
2. The extradition of the appellant is requested under a European Arrest Warrant ("EAW") that was issued by the Circuit Court of Wroclaw, Poland ("the judicial authority" or "JA") on 12 February 2012, and certified by the Serious Organised Crime Agency ("SOCA") on 6 May 2013. The EAW is what is often called for short a "conviction" EAW.
3. The history of this matter is extended. The first five offences were committed by the appellant between 16 April 2001 and 28 August 2001. They consisted of obtaining sums by deception (totalling a value of in sterling £990); concealing a passport; assault; and the "trafficking" of 174 grams of cannabis. The remaining eight offences were committed between 20 July 2002 and 9 September 2002. Four of those offences were for thefts for a total value, in sterling, of £650 - or 3,700 Polish zlotes. The remaining four were also for thefts of a total value of some £410 or 2,350 Polish zlotes. None of the offences can individually be described as being of the first order of crime, but together they are at least noteworthy. There is no dispute at all that the offences are extradition offences and they are all properly particularised in part E the EAW.
4. On 16 April 2003 a two-year sentence was imposed for the last eight of the offences that I have described. An order for compensation was also imposed. On 23 June 2004 a sentence of 1 year 10 months was imposed for the first five offences I have described. Then on 28 July 2005, on the motion of the appellant, the court substituted an "aggregate sentence" of 3 years 4 months in respect of all 13 offences. As the DJ noted, this meant that there was an overall reduction in sentence of some 6 months. Although the aggregate sentence had been requested by the appellant, it seems that neither he nor his lawyer attended the first hearing to aggregate the sentences heard on 13 June 2005, although the appellant had been subpoenaed. The matter was adjourned to 28 July 2005 and on that date the appellant's lawyers did attend on the appellant's behalf. The aggregate sentence that was given was not appealed.
5. The sentence was not then immediately carried out. In fact what happened was that the appellant moved with his partner to the UK on 20 September 2004. The appellant has retained this relationship with the same woman now for over 10 years and the person has become the fiancée of the appellant. I will refer to her as Miss K. Their daughter, N, was born to the couple on 26~June 2006, so she is now 8-and-a-half years old. The appellant has lived with his partner and, subsequently, daughter in the same UK address for eight years. He has worked in the UK, has been registered for National Insurance, and is registered with a General Practitioner. In 2007 he submitted himself to a CRB check in order to be able to work. The appellant has no close relatives in Poland.
6. The JA issued a conviction EAW in 2010. The appellant was arrested on 13 September 2010, and there was an uncontested extradition hearing which resulted in an order for the appellant's extradition which took place on 27 September 2010. Part F of the current EAW describes what then happened, and it seems that this part of the history is not disputed. I quote from part F:

Igor Tyza was apprehended in the United Kingdom, and on 27th Sep 2010 was transported to Poland. Since that day he served the custodial sentence of 3 years and 4 months adjudged against him under the cumulative sentence of the District Court of Wroclaw-Fabryczena in Wroclaw dated 28th July 2005... The custodial sentence was to end on 21st January 2013. Igor Tyza left prison on nth April 2011, as under the decision dated 7th April 2011... the Circuit Court in Wroclaw... allowed a break in his serving the custodial sentence for two months as an eye treatment was deemed necessary. Subsequently, under further decisions dated 10th June 2011 and 8th July 2011, the convict was allowed another break in his serving the custodial sentence. The break was to be over on nth Jan 2012. Another motion of the convict to be allowed another break in his serving the sentence was dismissed."

7. In fact the appellant returned to the UK for the eye treatment that is mentioned there. It is treatment to his left eye. The appellant had already suffered the loss of most, if not all, of his sight in his right eye in an industrial accident whilst working in the UK.
8. What happened after January 2012 was in dispute before the DJ. There is no doubt that the appellant made an application to the JA for a further extension of the "break" in his sentence in order that he could continue treatment to his left eye in the UK. The appellant subsequently telephoned the JA and was told his request had been refused. The DJ records in her ruling that the appellant was told the reasons for the refusal. The appellant asked to be sent documents but he received none. The appellant's oral evidence before the DJ was that he therefore believed that there was not a problem about his continuing with the "break" in serving his sentence and so stayed in the UK. The DJ concluded on the evidence she heard that the appellant "knew very well that he was obliged to return to prison to finish his sentence" but he failed to do so. The DJ said that in the UK the appellant would be regarded as "an absconder", so she had no hesitation in finding that he was a "fugitive from justice". That conclusion is challenged in this court.
9. Upon the appellant's return to the UK on 23 May 2011 he became eligible for Disability Living Allowance because of the deterioration in his sight. He needed daily help with basic tasks. More recently, on 12 April 2013, he has been assessed as having severe depression and anxiety.
10. After the present EAW was certified, the appellant was arrested and he has been on conditional bail since 30 August 2013. One condition is an electronically monitored 9 hour curfew as well as a "doorstep" condition. On 7 November 2013 the appellant was certified as being partially sighted primarily due to problems with his right eye. As I have already noted, the left eye has given problems and he has had bleeding and pain. The cause of the left eye problem has now been identified as being a problem in the appellant's nervous system. However, it has not yet been resolved. The latest position appears to be that the appellant is awaiting a further ophthalmic specialist appointment on 23 April 2015.
11. In December 2013 the appellant was given a "blue badge" by his local authority and provided with further assistance to help him at home with domestic tasks. As I have mentioned already, at the extradition hearing the appellant gave oral evidence. The DJ did not accept his evidence to the effect that he thought that he was entitled to remain in the UK as a result of not receiving any documentation from the Polish JA.
12. The appellant also gave evidence that because of his very poor sight he was now entirely dependant upon his fiancée Mrs K, and his daughter N, to take care of him. Miss K goes out to work at nights and the appellant stays to look after N. The DJ recorded that the "couple have a limited support network". Mrs K gave oral evidence before the DJ. The DJ recorded that Mrs K knew that there was a possibility of a prison sentence for the appellant when they came to the UK in 2004. Miss K's evidence was that N, the daughter, did not cope well when the appellant was surrendered under the 2010 EAW and that her schoolwork was then affected. N has apparently not been told of the current proceedings. Miss K said that if the appellant was surrendered, then she would have to give up her work to look after N.
13. At today's hearing, Miss Westcott told us that one consequence of the extradition going ahead might be that N would have to change schools. The DJ gave what is described as her "preliminary" judgment on 15 April 2014. That was some time after the evidence had been heard. In fact what apparently happened, so we are told by Miss Westcott, is that the judge orally gave bullet point reasons for her decision to order the return of the appellant. There was a subsequent hearing, as I have mentioned, and it was after that that the DJ in fact handed down her preliminary judgment in writing together with a supplementary judgment to deal with medical matters which had been adjourned at the time of the first hearing and judgment.
14. The appellant had raised a number of arguments before the DJ which he said were bars to his extradition. The first that the judge dealt with was that he had been sentenced to the aggregate sentence of 3 years and 4 months, and that this had been in circumstances where he was absent from a part of the proceedings. The judge was satisfied to the criminal standard that the appellant was present at the hearing or, at least, most certainly knew of it. There seems to have been a certain degree of confusion about this to which I will come when I deal with this point which is pursued on appeal.
15. The DJ then considered an argument under section 14 of the EA that the surrender of the appellant would be unjust or oppressive by reason of the passage of time. The DJ said that the relevant period of time was between the passing of the aggregate sentence and the time when the appellant became "an absconder". The judge said:

"The judicial authority ask me to accept Mr Tyza has been a fugitive since 2004. That cannot be right in this case. As mentioned above I have already found that [the appellant] to be a fugitive from justice but in the circumstances of this case [the appellant] has been a fugitive from when he was required to return to prison to serve the balance of his sentence, namely since January 2012. He cannot therefore rely on section 14 and that argument fails."

16. The judge did not deal any further with the issue of whether or not there was any oppression in relation to the period between the passing of the sentence in 2005 and January 2012.
17. The DJ next considered the argument that surrender would be a disproportionate interference with the appellant's article 8 rights so that extradition was barred by virtue of section 21 of the EA. I pause to note here that as from 14 October 2014, section 21 deals with Convention rights arguments in the case only of a conviction EAW. In the case of an accusation EAW, Convention rights arguments are covered by section 21A(1)(a) of the EA.
18. In her judgment, the DJ referred to the well known cases of Norris v Government of United States of America [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338. Applying the principles laid down in those cases, the judge concluded after a short review of the factors:

" I cannot say however that the consequences to this family would be so severe that the interference in their article 8 rights is sufficiently disproportionate to outweigh the public interest in upholding our international obligations. The article 8 argument fails."

19. The DJ adjourned giving a final determination in order that she could take account of progress on treatment to the appellant's left eye for the purposes, in particular, of making a decision under section 25 of the EA. By the time that the DJ gave her final judgment on 27 October 2014, the problem with the left eye had been diagnosed but no treatment had been carried out. Nevertheless the judge rejected the section 25 argument.
20. On this appeal on behalf of the appellant, Miss Westcott has argued that the DJ erred in respect of each of the bars to extradition that had been put forward on behalf of the appellant below. In support of her submissions, Miss Westcott wishes to introduce up to date information about the state of the appellant's health. Miss Faure Walker on behalf of the JA has not seriously objected to this new statement plus its attachments going in evidence in this regard.
21. In relation to the section 14 argument, Miss Westcott submits that the relevant "passage of time" is that from the imposition of the aggregate sentence to either the present day or, if it be the case that the appellant did become a fugitive, to the date when he did so.
22. On that basis, Miss Westcott submits that the "passage of time" here is from the date of the aggregate sentence in July 2005 until, at the least, the time when the appellant became a fugitive on the judge's findings, which was January 2012. Miss Westcott, as I understand it, does not suggest that any "injustice" has been caused by reason of the passage of time, but does argue that the appellant has suffered "oppression" by reason of that passage of time. Miss Westcott points particularly to the deteriorating mental and physical health of the appellant, his increasing reliance on his family, his settled life in this country, and the continuing problems with his left eye. In effect, she submits that all the factors that are relevant to the article 8 considerations are also relevant to the section 14 issue as well.
23. I do accept that the reasoning of the judge on this point is not entirely coherent. The judge seemed to take the view that because she found that the appellant had become a fugitive in 2012, that meant that there could be no reliance on section 14 at all, even for the period when, on the judge's finding, the appellant had not been a fugitive. With great respect to the DJ, that does not follow. Because of the DJ's conclusions, she did not make any findings on oppression at all.
24. However, I am unable to accept Miss Westcott's argument on the section 14 issue. It is well established that "oppression" in section 14 refers to changes in the circumstances that relate to the individual and that the word "oppression" means much more than simply "hardship". It is not an easy burden to discharge in order that "oppression by reason of the passage of time" will be a bar to extradition. In this case, even if it is right to take into account the period between 2005 and the first EAW, this case does not meet that test. The "oppression" has to be caused by the passage of time. Here, a part of the appellant's problem relates to his sight in his left eye which is not caused by the passage of time at all but by an unfortunate medical condition which, it seems, is probably hereditary. Miss Westcott, as I have said, also relies on all other factors which are relevant to the article 8 arguments as well. I will come to those in some detail presently. However, having taken those into account, I am not satisfied that the appellant has demonstrated, on a balance of probabilities, that there is oppression by reason of the passage of time as between 2005 and 2012.
25. Miss Westcott also challenges the judge's finding that the appellant became a fugitive after January 2012. With respect to her, that is a hopeless argument. That conclusion was made after the judge had heard oral evidence from the appellant on this point and many others. The DJ was the finder of primary facts. There is no basis upon which it can be said that, on the evidence, conclusion on this point was either irrational or perverse or unreasonable. I reject this ground of appeal.
26. The next argument concerns section 20 of the EA. Miss Westcott submits that the judge became somewhat confused here. Miss Westcott submits that the issue does not relate to the hearing that imposed the aggregate sentence in July 2005, as the judge appeared to think, but to the hearing on 23 June 2004 which led to the conviction and sentence of the appellant in respect of the first five sentences. For those, as I have mentioned, he was sentenced to 1 year and 10 months. Miss Westcott submits that in a conviction case where a section 20 argument is raised, it is for the JA to prove to the criminal standard that the requested person was convicted in his presence, that being the first step in the section 20 sequence: see section 20(1). In this case, Miss Westcott submits, the JA cannot prove that the appellant was convicted in his presence in June 2004 for the first five offences. If that is so, then the next question is whether the appellant deliberately absented himself from those 2004 proceedings. See section 20(3).
27. Miss Westcott points to part D of the EAW and submits that it does not distinguish between any of the three sets of hearings: that is to say those in 2003; those in 2004; and the final hearings where the sentences were aggregated in 2005. She submits that what is said in part D about in absentia is equivocal. Part D says:

"Please specify whether the person in question appeared in person at the trial which led to rendering the judgment:

Yes, the person in question appeared in person at the trial which led to rendering the judgment."

Then in bold type appears:

"No, the person in question did not take part in person in the trial which led to rendering the judgment."

28. Then there are set out a number of alternatives if the answer to the first question is "no". The third of these is in bold and therefore I take it to be the relevant answer in this case: It is as follows:

"c. aware of the trial, the person in question granted a power of attorney to an attorney appointed by him or by the state to defend him at the trial and such an attorney did actually defend him at the trial."

Then, after a further alternative (d) there is a further entry in bold still in box D which states:

"the person in question did not request a re-examination or lodge an appeal by the deadline prescribed."

29. Further down in box D there is this additional material:

"Under the binding sentence dated 28th July 2005... the District Court for Wraclaw-Fabryczna, by joining - upon a motion of convict [the appellant] - the penalties imposed on him in separate proceedings, adjudged against him the cumulative custodial sentence of 3 years and 4 months for the offences specified hereinabove... The convict, summoned at the address specified by him in the motion initiating the above-named proceedings, failed to appear at the main trial. He was, however, represented by a court-appointed attorney. Neither him (sic) nor his attorney appealed against the sentence specified hereinabove by the deadline prescribed."

30. Miss Westcott submits that the statement in box D cannot be relied upon as proving to the requisite criminal standard that the appellant was either present in person or through his advocate, at the 2004 hearing . She submits that there is no other adequate evidence to demonstrate this to the criminal standard and there is nothing to demonstrate that he was deliberately absent. In her written submissions, Miss Faure Walker on behalf of the JA accepts that the correct first issue is whether the appellant knew of the proceedings leading to the conviction and sentence on 23 June 2004 and whether he was present. She submits that box D is adequate evidence. Moreover, the findings of the judge that the appellant knew of the June 2004 proceedings is consistent, she submits, with other evidence. First, the fact that the appellant did not contest the EAW in 2010 by raising the section 20 argument then, even though he then had the same solicitors; secondly, the fact that, as recorded by the judge, the appellant left Poland to come to the UK some 3 months after the June 2004 hearing; thirdly, the request by the appellant himself for the sentences to be aggregated is consistent only with his having been aware of the June 2004 proceedings before he left Poland. That is because the Polish courts were not aware of any English address for the appellant at that time and he has never asserted that he was informed of those proceedings after he came to the UK.
31. The appellant gave evidence before the DJ on this point. In his second proof of evidence at paragraph 6, he refers to not having notice of the 2005 proceedings. We have been told by Miss Westcott, and this seems to be verified by a note taken by counsel appearing on behalf of the JA before the DJ, that this was within the oral evidence of the appellant. It appears that he told the DJ that the proof intended to refer to the 2004 proceedings. Miss Westcott confirmed that the appellant was cross-examined on this point. The judge was clearly not impressed by the appellant's evidence on the point. She found that the appellant must have known of the 2004 proceedings and that he chose to absent himself deliberately. That is a finding of fact by the judge. It is a reasonable one to make on all the evidence that she had before her, including, most particularly, the oral evidence of the appellant himself.
32. I would respectfully accept the analysis of Mitting J in Bioic v Romania [2014] EWHC 629 (Admin) that on the correct construction of section 20(3), the minimum requirement is that there must be a trial process that has been initiated from which the appellant has deliberately absented himself. See paragraph 15. You can only deliberately absent yourself if you know about the process. On the basis of the DJ's finding, which I accept, there is no need to have a right of retrial in this case. Accordingly, both the offences 1-5 and those of 6-13 can be taken into account for the article 8 arguments.
33. On article 8, Miss Westcott accepts that the circumstances in which this court can review the "value judgment" of the DJ are limited. She accepts, at least for the present, the principles that have been set out in the recent decision of this court in Belbin v France [2015] EWHC 149 (Admin) at paragraph 66. Thus the High Court is an appellate court, and so a court of review for this purpose. Therefore, this court cannot interfere with the conclusion of the DJ simply because it takes a different view of the overall value judgment arrived at by the DJ in relation to an article 8 argument. Furthermore, this court cannot interfere because it takes a different view from the DJ on the weight to be attached to particular factors.
34. Paragraph 66 of Belbin continued:

"In our judgment, generally speaking and in cases where no question of 'fresh evidence' arises on an appeal on 'proportionality' [in the article 8 context], a successful challenge can only be mounted if it is demonstrated, on review, that the judge below; (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse."

I would add, on reflection, to that list after the words "or perverse "or unreasonable".

35. Miss Westcott accepts that the DJ was conscious of the legal principles that have been set out in Norris and HH but Miss Westcott submits that the DJ did not here take into account all relevant factors so that her overall value judgment is faulty in such a way that this court can interfere, set it aside, and remake the value judgment she submits that should be done in favour of not permitting extradition. Miss Westcott submits that the judge's analysis of the article 8 factors was both cursory as well as defective. First, Miss Westcott submits that the judge failed to take account of the appellant's own private life at all. That I cannot accept. The judge records earlier in the judgment the appellant's personal circumstances in some detail. Moreover, in the written judgment, dated 15 April, although actually handed down on 27 October 2014, the judge refers to "the RP and his family" when referring to all the factors that had to be considered under article 8. Moreover, I am satisfied that the judge had the private life of the appellant in mind because she refers to the need to take into account "all relevant factors" which must be balanced one against the other when dealing with article 8. In that context, I am satisfied she had in mind the appellant's private life.
36. Secondly, Miss Westcott says that the judge did not take account sufficiently of the effect that the extradition would have on the daughter N, or that the judge minimised it. The factor was taken into account because the judge expressly recognised, following HH, that the interests of children constitute a primary consideration. The weight to attach to the matter in this case is something for the judge. She noted that the appellant was not the primary carer for N, nor her financial provider. She noted what the effects of extradition would have on Miss K's position as towards N. The resulting evaluation was not unreasonable.
37. Thirdly, Miss Westcott says that the judge did not take account of delay, a factor that is specifically referred to in the judgment of Baroness Hale of Richmond in HH at paragraph 8. It is not true that this factor is not specifically mentioned in the part of the DJ's judgment dealing with article 8. It is, in fact, although not identified as a specific bullet point. The judge said:

"Delay and whether during the lapse of time the RP and his family have made a new and blameless life for themselves"

This is at the end of the bullet points section of that part of the judgment.

38. I accept that the matter is not dealt with in the body of the following paragraph dealing with article 8. But it is not a major factor in this case, where delay was caused largely by the appellant coming to the UK, albeit openly, then returning to Poland in 2010, and then staying in January 2012. It is not a factor that would be in his favour in this case.
39. Fourthly, Miss Westcott submits that the judge did not consider the impact of prison on the appellant and the consequent effect on his family, given his health condition, both generally and in respect of his sight. The judge was well aware of the medical issues as they are recorded in the section of the judgment dealing with the section 25 submissions, immediately following the article 8 argument. There is no doubt in my mind that the appellant would suffer some hardship if he were to be imprisoned in his current state of health. That is a matter to be considered overall.
40. Fifthly, Miss Westcott submitted that the judge did not take account of the fact that whilst the appellant has been on bail in the UK, he has been the subject of a 9 hour a day curfew which is a considerable deprivation of liberty, especially when linked to the doorstep condition of bail. I accept that the judge did not consider this matter separately. I also acknowledge that a number of single judges in the Administrative Court have, in a variety of cases, regarded the fact that an appellant is on a curfew of 8 hours or more, could be relevant to the article 8 balance. Whether it is or not must depend, in my view, upon the particular facts of particular cases.
41. Here, in my judgment, the primary reason why the appellant was subject to a curfew was that he was a "flight risk" in circumstances where he had been sentenced already by the Polish courts. That situation is not the same as others when a curfew has been taken into account. A curfew imposed as a condition of bail on remand is taken into account under section 240A of the Criminal Justice Act 2003 for the purposes of fixing a sentence by an English court where that sentence has yet to be served. There was no evidence in this case on whether a Polish court would or would not take account of time spent on curfew by the appellant in the UK if he were to extradited. In these circumstances in this case, I cannot accept that the curfew condition of bail is a relevant factor of any weight.
42. Lastly, Miss Westcott submits that the "public interest" in ensuring that the sentence is served and that the extradition treaty arrangements constituted under the Framework Decision should be regarded as fulfilled is reduced in this case because of the relatively modest seriousness of the offences as well as their antiquity.
43. This is not a case where the offences are trivial. There were 13 offences, including one of assault and one for drug "trafficking". They cannot be dismissed as unimportant. They were committed some time ago but, as I have said, the delays since the imposition of the sentence are not the fault of the judicial authority. Miss Westcott did not argue otherwise. Taking all these matters into account, including the question of the appellant's return to Poland and the fact that he would undoubtedly have a harder time in prison that somebody who was in perfect health, I have to consider the judge's reasoning overall and her overall value judgment. In my judgment, the overall value judgment is one that is entirely reasonable and it does not omit any major factor. I accordingly dismiss the article 8 ground of appeal.
44. Miss Westcott sensibly and correctly acknowledged that if she could not win on the article 8 ground, she could not do so on the basis of section 25 of the Act. I therefore dismiss that ground of appeal also.
45. In the event, therefore, this appeal must be dismissed. However, I would be prepared to make a stay of any order until a reasonable time after the next ophthalmic appointment, which is, I believe, due to take place on 23 April 2015, in the hope that there can be rapid progress with the left eye treatment.
46. MR JUSTICE MALES: I agree.
47. LORD JUSTICE AIKENS: So we need some form of wording of the order. Miss Westcott can take that into account.
48. MISS WESTCOTT: My Lord.
49. LORD JUSTICE AIKENS: Can you, between you, prepare a draft for the associate and then when you have done that she will initial it.
50. MISS WESTCOTT: The only question will be: what is a reasonable period following 23 April?
51. LORD JUSTICE AIKENS: Well, have you got a submission on that?
52. MISS WESTCOTT: I would say anything less than three weeks would be unrealistic. Three weeks from the 23rd would be 14 May.
53. LORD JUSTICE AIKENS: Miss Faure Walker, what do you say?
54. MISS FAURE WALKER: I haven't been able to take instructions on this, my Lord. Given that your Lordship has said that there should be such a stay, it seems that if I were to oppose a length of time which is just three weeks beyond that period, it might be a little unreasonable. So, subject to instructions, then I don't see difficulty with that.
55. LORD JUSTICE AIKENS: I think we will say three weeks, so make it 14 May. My Lord has rightly pointed out: what happens then if there is further developments? Well, that is a matter for the parties to consider at that stage. All right. Thank you both very much indeed for your very helpful submissions.