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
		24 April 2015

1. SIR STEPHEN SILBER:
2. introduction
3. Marek Wasilewski appeals against the decision of Senior District Judge Riddle made at Westminster Magistrates' Court on 16 February 2015 by which he ordered the extradition of the appellant to Poland pursuant to a European arrest warrant. The European arrest warrant was a conviction warrant issued by the District Court Torun, Poland, on 20 August 2013 and it was certified in this country by the National Crime Agency on 11 September 2014 The purpose of the EAW was to require the appellant to serve the remaining sentence of eight months imposed for a single offence of driving whilst disqualified which had been committed on 3 July 2004.
4. The appellant pursues one ground of appeal which is that the extradition ordered by the Senior District Judge constituted a disproportionate interference with the Article 8 rights of the appellant's children and family and his rights to private life, thereby invoking Section 21 of the Extradition Act 2003.
5. The case for the appellant is that the Senior District Judge ought to have discharged the appellant on the Article 8 issue on the basis that he applied an exceptionality or high threshold test rather than conducting a full balancing exercise and to that extent he erred; secondly, that he placed too much weight on some factors; and, thirdly, he did not take account or did not place sufficient weight upon other factors.
6. the Facts
7. ON 3 July 2004 the appellant drove a motor vehicle while intoxicated. He was disqualified from driving for a period of three years starting on 24 March 2003. On 8 December 2004 he was convicted and sentenced to eight months' imprisonment. That sentence was upheld by the Regional Court in Torun on 2 June 2005; the appellant had been present not only on this hearing but also at the original trial. A summons was sent on 23 June 2005 to the appellant requiring him to attend the prison in Szczyno on 8 July 2005. The appellant did not attend and he did not remain at the address despite the obligation imposed by the court to remain there. It is not in dispute that he was a fugitive in the sense that he left his country in order to avoid the sentence.
8. On 13 July 2005 the court was informed of the appellant's non-appearance and requested he be found and brought to prison by the police. Searches were conducted, including attempts to determine his whereabouts "many times", including checks on his known address, social and family contacts, the Polish health service and the Central Population Database. Regular updates were sent to the court by the police.
9. After the searches for the appellant proved fruitless, the European arrest warrant was issued on 1 April 2009. For reasons of which no one is quite aware that EAW was not pursued and a fresh EAW, which forms the basis of the present proceedings, was issued on 20 August 2013. On 2 October 2014 the appellant was arrested, and his extradition has been ordered.
10. The Article 8 claim
11. It is necessary to mention at this stage the provisions and the effect of Article 8 which is at the forefront of the submissions of Miss Westcott.
12. The law in respect of it was considered by the Supreme Court in two recent cases: first, Norris v Government of United States of America No 2 [2010] 2 WLR 572 and, more recently, HH v Deputy Prosecutor of the Italian Republic Genoa [2012] 3 WLR 90. There seems to be little dispute that some of the basic principles in that case were set out by Baroness Hale (paragraph 8 of her judgment):

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

ii. ….

iii. (3) 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.

iv. (4) 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.

v. (5) 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.

vi. (6) 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.

vii. (7) 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."

13. Baroness Hale explained in paragraph 21 of her judgment) that the executing state cannot rely on the issuing state, which in this case is Poland, to have considered the proportionality test or to have considered the children's rights before issuing the warrant.
14. The appellant relies principally on four major submissions in support of the contention that this appeal should be allowed. The first submission is that the Senior District Judge erred in his approach to the law in relation to Article 8; the second is that the Senior District Judge placed too much weight on factors, including the likely sentence in this country, and the public interest in fulfilling the United Kingdom's international interests in bringing fugitives to justice; third, that the Senior District Judge placed insufficient weight on the rights and interests of the appellant's wife and child and the consequences of extradition; and finally that there were factors reducing the public interest in extradition, including the delay and the false sense of security said to have been given to the appellant.
15. Starting with the criticism of the approach to the law in relation to it, Miss Westcott, who appears as she did below for the appellant, takes exception to the approach which was adopted by the district judge in applying the incorrect test. She has reminded me that the appropriate test was that set out by Baroness Hale at paragraph 8 (7):

i. "(7) 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."

16. Miss Westcott maintains that the approach adopted by the Senior District Judge at pages 9 and 10 of his judgment is inconsistent with this. She points out that the Senior District Judge said:

i. "It is clear that extradition would cause hardship for the defendant, his partner and Michal. The fact that the sentence is comparatively short is double edged. It may mean that the public interest in serving the sentence is less when you weigh in the substantial disruption for the family. On the other hand absence from the family is comparatively short and many children are separated from their father for that period of time without obvious ill effect. Indeed there is an argument that Michal is better equipped to deal with the absence of his father than he would have been in 2005 when the appeal against sentence failed. It cannot be said that the 'interference with family life will be exceptionally severe' [per Lady Hale], or that 'some quite exceptionally compelling feature' is present [per Lord Phillips], or that this is one of the 'rarest cases' [per Lord Brown], or that the consequences of interference with Article 8 rights are 'exceptionally serious' [Norris]."

17. The other passage to which she objects is that which is set out on page 10 where the Senior District Judge said:

i. "I am satisfied that there is interference with the family life of the defendant, his wife and son. However this is outweighed by the public interest in ensuring that a fugitive does not escape justice, and by the importance of fulfilling our international obligations. There is no exceptionality test, but 'such is the importance of preserving an effective system of extradition, it will in almost every circumstance outweigh any Article 8 argument.'"

18. She complains that this approach shows that the Senior District Judge did not apply this matter correctly. She said in her skeleton argument:

i. "His reasoning relied so heavily on it being unlikely that Article 8 would prevent extradition without exceptions to the circumstances that he did not give sufficient scrutiny to the Article 8 balancing exercise."

19. I have considered this with very substantial care, but I have come to the clear conclusion that the Senior District Judge did approach this correctly. There is nothing to show that what he did was incorrect. Therefore, I am unable to accept that submission.
20. Her next submission is that the Senior District Judge placed too much weight on factors, including the likely sentence in this country and the public interest in fulfilling the United Kingdom's international interest and bringing fugitives to justice.
21. It is appropriate at this stage that I should mention an argument that took place between counsel as to the different approach that should be adopted for the correct threshold before this court would interfere.
22. Mr Joel Smith, for the respondent, was anxious that I should approach this matter on the basis of what had been said by Aitken LJ in Belbin v Regional Court Lille, France [2015] EWHC 149 Admin in which the Divisional Court analysed how the court should approach statutory appeals under the Extradition Act. At paragraph 66 it endorsed a review approach to extradition appeals in which, specifically, in the context of Article 8, the appeal court should only interfere when an error of principle has been made, when conclusions have been reached which were perverse or where the district judge failed to take into account relevant considerations. At paragraph 66 he said that:

i. "66 In our view Beatson LJ was correct in suggesting that it is the 'review' approach that should be taken by this court when it is considering an appeal from the conclusion of the District Judge on an issue of Article 8 'proportionality' in an extradition case. Under section 27(3) of the EA this court can only allow an appeal if it concludes that the 'appropriate judge' should have decided a question before him at the extradition hearing differently. In this context the relevant 'question' is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family's) Article 8 rights. 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."

23. Miss Westcott submits that that is the incorrect approach, and the proper approach was that which was decided by the Supreme Court in In re B (a child) [2013] 1 WLR 1911, where she drew my attention to what was said by Lord Neuberger of Abbotsbury, President of the Supreme Court, at paragraph 93:

i. "93 ..... 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)."

24. He then goes on to state in paragraph 94:

i. "94 ..... 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."

25. A similar approach was adopted by Lord Clarke of Stone-cum-Ebony in that case.
26. It is unnecessary for me to decide which of those views is correct because whichever of those approaches was adopted in this case I reach the same conclusion.
27. The argument so far as the excessive weight is concerned is that Miss Westcott says she takes issue with the statement of the district judge that the offence for which extradition is sought "would probably have led to a custodial sentence in this country", because the sentencing guidelines suggest a community order would be likely, particularly noting the age of the offence and the appellant's otherwise good character. She points out that as Baroness Hale explained (at paragraph 45 of HH), the importance of fulfilling our international obligations specifically under the EAW Framework Decision is that these are subject to the need to respect for fundamental rights and they do not absolve us of the duty to weigh the competing interests as required by Article 8. She also points out that the public interest in bringing a fugitive to justice should not be regarded as determinative.
28. discussion.
29. To my mind, having read the decision of the Senior District Judge, he performed a perfectly fair analysis of the competing factors relevant to the proportionality decision. He weighed them correctly in an appropriate manner and in a way which cannot be impugned.
30. Indeed, it must not be forgotten that the appellant was a classic fugitive having been convicted of offending which justified a custodial sentence in the country in which it was imposed. Then he sought to evade liability as far as the sentence was concerned. To my mind, the Senior District Judge was correct to attach importance to the considerable public interest in giving effect to the United Kingdom's international obligations to bring fugitives to justice.
31. The Senior District Judge did take account of the appellant's family obligations and the problems that would be caused to the family by his extradition. It is a notorious fact that not only imprisonment but more especially extradition does cause very substantial difficulties to the families concerned. Extradition has the additional problem that it is more difficult if not impossible for the family concerned - if they have to remain in this country - to visit and keep contact with the person who has been extradited.
32. The Senior District Judge also took into account the evidence which was given about the difficulties that would be caused to the family of the appellant. Evidence had been given to him in relation to these matters and these were important factors that had to be taken into account. He referred to the fact that the appellant worked to support his family, that they have an 11-year old son, what their financial matters would be and it would be a very considerable strain if the appellant was unable to provide income for the family as well as the fact that they both share the care of the 11-year old who is very close to the appellant. These were factors which he took into account. t
33. The final issue relied on by Miss Westcott in her admirable submissions is that there were factors reducing the public interest in extradition, including the delay and the false sense of security said to have been given to the appellant. It is true that there has been a substantial delay in this case. but the further information provided by the judicial authority shows the difficulties they had in finding where the appellant was. It is true that he did have a national insurance number in this country but there is nothing to show that the Polish authorities knew to which country he had gone or whether he still remained in Poland. It must not be forgotten that his aim was in fact to make sure that he was not found. So I do not think that that factor would constitute a valid ground of challenge.
34. The appellant was under no illusion at all about what the position was. He attended all the hearings and he fled when his custodial sentence was confirmed. His wife and child remained in Poland while the search was being conducted, and it is inconceivable that the appellant would not have been aware of that.
35. At the end of the day it seems clear that extradition does - as it invariably does - lead to an interference with the family life of the appellant, his wife and son. Having taken all the factors into account, I do not think - either on the Belbin test or the In re B test - that there are any grounds for overturning the decision of the District Judge. And I attach weight to the public interest in ensuring that a fugitive does not escape justice.
36. Applying again what was said in HH, I have come to the conclusion that even if I have to take the decision afresh myself - which has been suggested if the District Judge erred - I would definitely come to the decision that this was an appropriate case in which to order extradition.
37. There are two final matters to which I must refer. The first matter is that there is a hearing in Poland due on Monday of next week in which the appellant is seeking somehow to compromise the criminal proceedings. I would propose to include a provisional order that it should not take effect for a period of a week so that if he is successful on that application the matter can then be looked at afresh.
38. Secondly, as everybody who has heard this case will appreciate, it has been argued with great skill by Miss Westcott. I very much hope that the appellant is told that everything that could be said on his behalf has been said clearly and cogently by her. But for the reasons which I have sought to give, the appeal must be dismissed.
39. MISS WESTCOTT: Would the court associate be assisted by us drafting the order?
40. SIR STEPHEN SILBER: Yes. I would be assisted. Could you try to get it in today.
41. MISS WESTCOTT: Yes.