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
		16 January 2015

THE DEPUTY JUDGE:

1. Rafal Mika appeals against the decision of District Judge Blake made on 30 October 2014 at the Westminster Magistrates' Court, ordering the appellant's extradition to Poland on a European Arrest Warrant which was issued out of the District Court in Gliwice, Poland, on 3 March 2014 and certified by the National Crime Agency on 11 April 2014.
2. The conviction relates to the burglary of Adidas tracksuit bottoms, a scooter and a trolley, and a glass wine carboy which were taken from premises after the appellant had forced open a door. The value of the items is around £50.
3. The appellant originally received a suspended sentence for this offence. It appears that the sentence was activated because of the commission of a further offence, which was something connected, like an assault, but that offence is not the subject of a European Arrest Warrant in itself.
4. The appellant came to the United Kingdom in the latter half of 2008. He has lived openly here and no action was taken in Poland before 1 January 2010. There was no attempt to pursue his extradition until 3 March 2014, which is about 10 years after the offence was concerned.
5. The appellant is 35 years of age. He has no convictions or cautions in this country. He has a 5 year old son, who is looked after on a day to day basis by his partner from whom he is estranged, but he sees his son regularly. He has worked in the United Kingdom as a factory worker.
6. When the matter came in front of the District Judge, he noted that that he was not satisfied on the evidence called that the appellant was aware that the suspended sentence order had been activated. Therefore, when he came to this country he would not have known that he would have to serve a sentence in Poland.
7. There was also no explanation for the delay that has occurred in the case, and, in particular, the delay between 2012 and the issue of the European Arrest Warrant. The District Judge noted that the appellant wanted to stay in contact with his son, but it is the mother who has the day to day care of him.
8. The District Judge took the view that it would be proportionately necessary for the appellant to return to Poland for the matters referred to in the European Arrest Warrant, because he was satisfied that the public interest outweighed the Article 8 rights in this case.
9. One of the points that has been put forward carefully and clearly by Miss Hannah Hinton, counsel for the appellant, is that the District Judge was not told (and did not know) that the appellant had been subject to an electronically monitored curfew since 16 May 2014, which is now about a period of 8 months. The period of a curfew is 9 hours for 5 months, and then 8 hours for the last 3 months of it.
10. Miss Hinton drew my attention to the provisions in English Law by which reductions can be made when there is a period of tagged bail, but the focus of her submissions really move to how the time he spent under curfew would be treated in Poland.
11. In two earlier cases, Szkwarkowski v Regional Court in Gdansk Poland [2014] EWHC 4424 (Admin) and Michalik v Circuit Court In Katowice Poland (2014) EWHC 4423 (Admin), I was faced with the problem about what credit would be given in Poland, and I ordered that the judicial authorities provide a response.
12. What seems clear is that it does not appear that the appellant would automatically get credit for the time given, but to my mind it is an important point to take into account when carrying out the proportionality tests.
13. My attention was drawn to the well known cases of Norris v USA [2010] UKSC 9, and H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. The basic principles that were first set out in paragraph 8 by Baroness Hale states:

i. "8. We can, therefore, draw the following conclusions from Norris:

(2) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(3) There is no test of exceptionality in either context.

(4) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(5) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.

(6) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

(7) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

(8) Hence 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."

14. Baroness Hale went on further:

i. "30.In answering that question, the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg court. First, it asks whether there is or will be an interference with the right to respect for private and family life.

1. "Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2.

2. "Third, it asks whether the interference is "necessary in a democratic society" in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale."

15. It is noteworthy that there has been a substantial delay in pursuing this matter, as Baroness Hale explained at paragraph 8(7), that where there is delay:

1. "It may both diminish the weight to be attached to the public interest and increase the impact on a private and family life."

16. Another factor of importance in this case is, as I have explained, that this is not a case of an appellant being a fugitive, but a case where the District Judge was not satisfied that the appellant was aware that the suspended sentence order had been activated.
17. During the period since he left Poland, he has built up a private life in this country. No evidence has been put forward to explain the delay in seeking the appellant's extradition and pursuing this particular case.
18. He was also entitled to some credit for the fact that he has been subjected to the curfew, even though it is not the full amount here.
19. In every case, extradition will cause hardship and there is no evidence to suggest that it would be excessive in this case. There is no evidence to show particular problems in looking after his son, and I bear in mind the relatively rare circumstances in which the public interest in extradition will be defeated.
20. Nevertheless, I have come to the conclusion that this is a case in which it would be appropriate to allow the appeal. I stress that all these cases are fact-sensitive, but what are important factors in this case are that the appellant was allowed to leave the country; the limited value of the items stolen, the fact that he has been subjected to lengthy electronically monitored curfews, the length of his sentence and the fact that he had no idea that the sentence was to be activated, and the evidence explaining the delay in seeking the extradition,
21. All those factors have persuaded me on what is a difficult case, that it would not be proportionate to order extradition, and I therefore allow the appeal.
22. I cannot finish this case without expressing my praise for the admirable way in which the cases have been put by both sides.
23. MISS HINTON: Thank you, my Lord. There are no ancillary orders.
24. THE DEPUTY JUDGE: You do not ask for costs?
25. MISS HINTON: I am not.
26. THE DEPUTY JUDGE: Do you not have to ask for Legal Aid taxation?
27. MISS HINTON: I have just checked that, and I do not have to ask for that, I certainly hope that --
28. THE DEPUTY JUDGE: -- well, if there are problems from it, you can come back to the court and we can see what we can do about it.
29. MISS HINTON: I am grateful, my Lord.
30. THE DEPUTY JUDGE: Good, well thank you very much. Also thank you very much, Miss Draycott, for putting it so fairly.