CO/5889/2014, CO/5892/2014, CO/2270/2014
QUEEN'S BENCH DIVISION
ON APPEAL FROM WESTMINISTER MAGISTRATES' COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RYDER
MR JUSTICE OUSELEY
| Polish Judicial Authorities
|- and -
|(1) Adam Celinski
(2)Konrad Tadeuz Pawelec
(3) Pawel Ciemiega
(4) Krzysztof Nida
|Slovakian Judicial Authority
|- and -
|R (Piotr Inglot)
|- and -
|Secretary of State for the Home Department and Westminster Magistrates' Court
Hugh Southey QC and Kate O'Raghallaigh (instructed by Lansbury Worthington) for Celinski
Nicholas Hearn (instructed by Gordon, Shine & Co) for Pawelec
Alun Jones QC and Natasha Draycott (instructed by Kaim Todner) for Nida
Gavin Irwin (instructed by Edward Hayes) for Ciemiega
Amelia Nice (instructed by Bullivants) for Cambal
Ben Lloyd (instructed by the Secretary of State) in Inglot
Peter Caldwell for the Government of Poland in Inglot
Daniel Jones (instructed by Lansbury Worthington) for Inglot
Hearing date: 3 March 2015
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court.
The approach of a court at the extradition hearing
(a) The general principles in relation to Article 8
i) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him.
ii) Each Member State is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence.
iii) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. As Lord Hope said in HH at paragraph 95 in relation to the appeal in the case of PH, a conviction EAW:"But I have concluded that it is not open to us, as the requested court, to question the decision of the requesting authorities to issue an arrest warrant at this stage. This is their case, not ours. Our duty is to give effect to the procedure which they have decided to invoke and the proper place for leniency to be exercised, if there are grounds for leniency, is Italy."Lord Judge made clear at paragraph 132, again when dealing with the position of children, that:"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. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."
i) The basic principles to which we have referred have not always been taken properly into account at the extradition hearing.
ii) A structured approach has not always been applied to the balancing of the factors under Article 8. This is essential, because each case turns on the facts as found by the judge and the balancing of the considerations set out in Norris and HH. We suggest at paragraph 15 below, an approach which would fulfil this requirement.
iii) Decisions of the Administrative Court in relation to Article 8 are often cited to the court. It should, in our view, rarely, if ever, be necessary to cite to the court hearing the extradition proceedings or on an appeal decisions on Article 8 which are made in other cases, as these are invariably fact specific and in individual cases judges of the Administrative Court are not laying down new principles. Many such cases were referred to in the skeleton arguments. We have referred to none of them in this judgment, as the principles to be applied are those set out in Norris and HH. If further guidance on the application of the principles is needed, such guidance will be given by a specially constituted Divisional Court or on appeal to the Supreme Court. It is not helpful to the proper conduct of extradition proceedings that the current practice of citation of authorities other than Norris and HH is continued either in the extradition hearing or on appeal.
(b) Balancing of the considerations
The approach of the court on appeal
(a) The statutory provisions relating to an appeal
(b) The role of an appellate court
i) In Dunham v USA  EWHC 334 (Admin), Beatson LJ said at paragraph 66 in relation to an appeal in a Part II case:"When the time comes to resolve that tension, the fact that this court is exercising an appellate jurisdiction under s.103 of the Extradition Act 2003 Act may be relevant to the way it is done. In Re B (A Child) (FC)  UKSC 33 a majority of the Supreme Court held that an appellate court should treat the determination of the proportionality of an interference with the rights protected by the ECHR as an appellate exercise and not a fresh determination of necessity or proportionality, notwithstanding the duty of the court as a public body to consider human rights, see in particular -, - and . Lady Hale and Lord Kerr dissented ibid, at ,  and ."
ii) That observation was then followed in Belbin v Regional Court of Lille, France  EWHC 149 (Admin) (a Part I case) where Aikens LJ set out the view of the court as to how the Divisional Court should approach an appeal in Article 8 cases. After referring to the views of Beatson LJ and of Lord Wilson in Re B (A Child) Aikens LJ said:"If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of "fresh evidence" arises on an appeal on "proportionality", 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."
"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).
94 As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal."
(1) Polish Judicial Authority v Celinski
i) The supply of 10 ecstasy pills between 1 and 31 August 2009 for financial gain. The maximum penalty in Poland is 10 years imprisonment.
ii) The supply of one ecstasy pill between 1 and 22 September 2009 for no payment. The maximum penalty in Poland is 3 years imprisonment
That EAW (EAW 1) was issued on 30 August 2012 in respect of an order of the court in Legionowo, Poland dated 23 March 2012. It was certified in the UK on 13 February 2013. After the initial hearing before the District Judge, Celinski was released on conditional bail.
i) Four offences of theft from houses under construction and one from a barn between October 2008 and February 2011.
ii) Three offences of dwelling house burglary in September 2010.
iii) One offence of theft between 2009 and 2011.
The second EAW (EAW 2) had been issued on 23 January 2014 to enforce the order of the same court in Legionowo, Poland dated 20 May 2013. It was certified in the UK on 1 February 2014. After the initial hearing before the District Judge, Celinski was released on conditional bail.
The hearing of EAW 1 and 2 before District Judge Zani
i) Celinski's grandmother died when he was 9 or 10 years of age; he had found her death one of the most traumatic experiences of his life because he had taken the responsibility of caring for his grandmother as his grandfather had left her for another person.
ii) When he was 14 years of age his father died within a month of being diagnosed with cancer.
iii) The loss of both his grandmother and his father had a negative impact and led him to associate with "the wrong crowd". He became involved in drugs. It was during that period he committed his offending which in the case of EAW 1 and 2 spanned the period 2008-2011.
iv) He had been arrested and remanded in custody. He then left Poland and arrived in the UK in August 2011.
v) He had sorted out his previous drug dependency and found work.
vi) He had a caution for theft from a shop in the UK in November 2011.
vii) He lived with his mother and her partner and their two young children.
viii) He spent time with his family when he was not working and was a caring brother to his two young step-siblings.
ix) He made a contribution to the family outgoings. Without that his mother, her partner and their two children would have to move to other accommodation as they could not afford their current accommodation.
x) He was a hardworking member of society as well as an important member of the family, in both financial and emotional terms.
"Albeit that the offences are serious, that is not the only factor to be taken into account (see, for example, Welke v Poland  (Admin) ECHR) and the fact that [Celinski] has turned his life around is to be applauded (see Sobieraj v Poland  EWHC 2450 (Admin))
As has been repeatedly said in the past, each case where Article 8 is raised is fact specific and therefore has to be considered on its own merits and having considered the evidence and arguments advanced I am just persuaded that this falls into the small number of cases where it would be Article 8 disproportionate to order [Celinski's] extradition.
I have carefully considered the submissions made by the parties to these proceedings and I accede to the challenge based on Article 8 ECHR presented on behalf of the requested person for reasons explained heretofore."
Proceedings before District Judge Devas on EAW 3
"I do not make any comment about the conclusions of the judge at that hearing and they appear to be both sensible and understandable."
The judge then proceeded to say that he considered there was a material difference as EAW 3 involved a number of incidents of supply of admittedly small quantities of cannabis, but it was a conviction EAW and had resulted in a significant sentence of imprisonment. Celinski had returned to the UK after the sentence imposed in August 2012 knowing he was not fulfilling his obligations following that sentence. After referring to the decision in Norris and HH, although Article 8 was engaged, the interference was both necessary and proportionate. He ordered his extradition.
The arguments before us
(2) Slovakian Judicial Authority v Pavol Cambal
i) Production and possession of narcotics. He was found in possession of three wraps of heroin on 8 May 2004 weighing about 0.29 grams.
ii) Theft of 11 television band stop filters between April and May 2004 2004 from metal boxes belonging to a cable TV company; this enabled viewers to extend the range of services that they could obtain from the TV distributor without charge.
He attended the first hearing in Slovakia on 4 May 2005, but failed to attend the second hearing. He was declared a fugitive. He was tried in absence, though his lawyer was present. He was convicted and sentenced to 6 years and 4 months imprisonment.
i) The judge found his evidence unimpressive. He concluded that he did not believe he was trafficked and set out detailed reasons for that conclusion. He therefore held that Cambal could not rely on s.14 of the 2003 Act.
ii) For similar reasons, the judge held that his absence from the court which convicted him was voluntary. He therefore held that he could not rely on s.20 of the 2003 Act.
iii) There was no real risk of a breach of his Article 4 rights were he to be extradited. The judge concluded, having heard Cambal's evidence and that of his witnesses, that Cambal had not been trafficked. He was satisfied, on the criminal standard and burden of proof, that Cambal was a fugitive. The district judge commented on the fact that Cambal had referred himself to the National Referral Mechanism, and on the increasing number of cases in which, potentially abusively, defendants were claiming to have been trafficked. He would make no referral unless satisfied that there were reasonable grounds to believe that a Requested Person had been trafficked. Where there had been a referral on reasonable grounds, seemingly by the Court, and so it did not apply here, he would not order extradition until ten days after the conclusive decision. He does not say what he would do in consequence of a conclusive decision in favour of a requested person.
i) Cambal was a fugitive from justice and had lived in the UK under a false identity since 2005.
ii) He had a number of previous convictions in the UK; the bulk were between October 2005 and March 2010. They were in fact largely shoplifting offences. He had one conviction since March 2010 – possession of cocaine in July 2013 for which he had received a conditional discharge.
iii) He had a partner with whom he did not live. The partner did benefit from the support of her children in dealing with her own health issues; Cambal did provide her with emotional support.
iv) He had suffered for many years from addiction to class A drugs; this had led to his offending in Slovakia and in the UK, but he had made a determined effort to rid himself of his addiction and had done so. He had turned his life around. He had been successfully rehabilitated.
v) He had an offer of a job if not extradited.
i) The strong interest in upholding extradition arrangements.
ii) The fact that Cambal is a fugitive from justice and the strong interest in the UK not being a safe haven for fugitives.
iii) The fact that the delay in extradition was attributable to his flight from Slovakia and his residence in the UK under a false identity. This significantly reduces the weight that can be given to any private or family life he acquired in the UK.
iv) The fact that the sentence had been imposed after conviction by a court of competent jurisdiction following a trial attended by witnesses. The judge did not have the information (whether personal or relating to the offence) which had led the court in Slovakia to impose the substantial custodial sentence. The courts of England and Wales, in the absence of very cogent evidence, must assume that the sentence reflected the gravity of the offending in all the circumstances as legitimately seen through the eyes of a court which did have that knowledge. Where a sentence has been imposed following conviction in the requesting state that is the approach which the courts of England and Wales should adopt. The judge should not have considered in this context how the courts of England and Wales would have sentenced for these offences, even where there was a high degree of variance between the two approaches. The decision of the Slovakian court is entitled on principles of mutual confidence to proper respect. That, of course, does not mean that the duration of the sentence during which the impact on family and private life will be felt is irrelevant to the assessment of proportionality.
v) The family relationships were tenuous – he only provided emotional support to a partner with whom he did not live.
vi) Thus far, there could be no doubt at all about how the balance should be struck. What tipped the balance for the judge was the fact that Cambal had turned his life around, freeing himself from his drug addiction, and that there was a risk that that good work would be undone, and a greater risk in view of the length of sentence. This is a relevant consideration for Article 8 purposes, which the Slovak Court could not have considered when passing sentence. But when put into the balance against the factors to which we have referred, it simply cannot outweigh them, however much sympathy it may arouse. The judge was therefore clearly wrong to reach the balance on those factors which he did.
Position of the UKHTC Competent Authority
(3) Polish Judicial Authority v Krzysztof Nida
(4) Polish Judicial Authority v Ciemiega
i) He left Poland knowing that he had to serve his sentence; he was a fugitive from justice.
ii) Although he lived with his partner and her children and helped with them, she had looked after the children on her own before she came to the UK to join Ciemiega.
iii) His absence whilst serving the sentence would be short; his partner's father would be able to help with the children.
iv) There was a weighty public interest in extradition.
(5) R (Piotr Inglot) v Secretary of State for the Home Department and Westminster Magistrates Court
i) Inglot left Poland in order to avoid having to serve the sentence imposed on him, in the knowledge his suspended sentence was about to be activated. He was a fugitive from justice.
ii) The importance of the UK honouring its extradition arrangements.
iii) The UK should not be seen as a safe haven for fugitives from justice.
iv) He had breached his suspended sentence by committing another offence.
v) He had been convicted in the Isle of Man of serious offending.
vi) He was not the primary carer of the children whose needs could be met by his wife during his absence.
vii) He was not currently employed. His surrender would not have adverse financial consequences.
i) Inglot was a family man with a wife and two children.
ii) His offending in Poland was nearly 17 years ago.
iii) His fugitive status was not fatal.
iv) His offending was of no great gravity.
v) The street deals of which he was convicted would be unlikely to result in a custodial sentence for a man then in his 20s with no previous convictions.
(6) Polish Judicial Authority v Pawelec
i) He was satisfied after hearing the evidence of Pawelec that he was a fugitive from justice, as he was well aware of his obligations to notify changes of address and that he could not leave Poland. He could not therefore rely on s.14 of the 2003 Act.
ii) Although extradition would interfere with his Article 8 rights, the circumstances came nowhere near the high threshold required.
iii) However, it was not proportionate to extradite him, applying the provisions of s.21A of the 2003 Act. The offences fell within the table in Crim PD 17A. He concluded:"However I have to consider the exceptional circumstances in Part 17A4 before deciding I must discharge. It is possible as [the advocate for the Polish Judicial Authority] has urged, to say that there are multiple counts and that extradition is required for more than one offence. However, in this case, bearing in mind the nature of the offences and the likely penalty on conviction, the time spent in this jurisdiction by [Pawelec] without coming to the attention of the authorities, and even allowing for the culpability of [Pawelec], the delay involved, with some hesitation, I come to the conclusion that extradition would be disproportionate under s.21A(4)(b) …"