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
		29 April 2015

1. SIR STEPHEN SILBER: Introduction
2. Mikolaj Pilich appeals against an order of District Judge Tempia made on 24 February 2015 at Westminster Magistrates' Court ordering his extradition to Poland. His extradition was sought pursuant to a European Arrest Warrant issued by the District Court in Bielso-Biala on 18 October 2011 and certified by the National Crime Agency on 1 April 2014. It seeks enforcement of the order of the Regional Court at Cieszyn on 15 December 2004 in which that court imposed upon the appellant a sentence of 3 years' imprisonment for three offences contrary to Article 291 of the Polish Penal Code.
3. The Hearing before the District Judge
4. The appellant had resisted the extradition request in the Magistrates Court on the grounds first, that the first offence was not sufficiently particularised, second, that his extradition of the appellant would be oppressive and contrary to section 14 of the Extradition Act 2003("the 2003 Act") and third, that extradition would be a disproportionate interference with the appellant's Article 8 rights.
5. The District Judge concluded that the first offence was properly particularised because the nature of the offence was set out in the European Arrest Warrant as the appellant was acting with two other men, the car was disassembled, the car was stolen and the appellant was clearly handling it. The District Judge noted that there had been changes in the appellant's circumstances since he arrived in the United Kingdom and he does not have any convictions here, but he does have health problems with limited mobility so that he can only move with the aid of crutches and his wife helps him at home. He has two sons and a daughter, with one son taking medication for anxiety. It was nevertheless held that extradition would not be disproportionate contrary to Article 8.
6. The Ground of Appeal
7. The appellant's grounds of appeal are that the first offence does not meet the requirement of section 2(6)(b) of the 2003 Act and so the conduct described does not disclose the commission of an offence under the law of England as required by section 10 of the 2003 Act.
8. The appellant's case is that if that is correct, his appeal is to be considered with reference to the two remaining handling charges and not the original three . In consequence, that will change the basis upon which the Article 8 point could be pursued. The other main point pursued by Ms O'Raghallaigh ,counsel for the appellant is that the District Judge was wrong to conclude that extradition was a proportionate interference with his Article 8 rights. It is not accepted by her that the appellant would receive a custodial sentence for these two offences in the United Kingdom and in addition, there is an unexplained delay in the certification of the European Arrest Warrant with the consequence that the delay should weigh in favour of the appellant. It is also said there was a relative lack of seriousness of the offending and the change in the appellant's circumstances since the commission of the offence reduced the public interest in extradition.
9. the Facts
10. The appellant is 40 years old and he lives with his wife and their three children, who are aged 14, 10 and 5. Sadly, the appellant has health problems because on 22 September 2006 the appellant was "thrombolysed for Anterior ST elevation MI ... after which he bled to the LI Ependymona". On 26 September 2006, he had an "extensive epidural haematoma at the level L1-L3 which required evacuation in ... Neuro Centre".
11. The appellant underwent a thrombolysis, which is a life-saving procedure to remove and treat clots in the lungs or blood vessels in relation to a myocardial infarction and in the course of that he bled into his epidural space. This in turn caused a haematoma which was evacuated and it caused paralysis of both limbs. At that point, the appellant was transferred to the spinal unit for rehabilitation and the appellant has been unable to work. His former area of work was in the construction industry.
12. As at 22 January 2015 the appellant's broad diagnosis was that he has "severe lower back pain and neuropathic leg pain". It is hoped he will undergo spinal cord stimulation and this will, if taken up, require an operation and regular clinic visits. He is in receipt of DLA and ESA and his partner receives a carer's allowance.
13. There are additional family matters of some significance. First, the appellant's 10-year-old son is reacting badly to the prospect of his father's extradition. He recently smashed a neighbour's window so that he could be arrested and extradited with his father. Second,his other son, who is 15, has become very nervous and has been to see a psychologist. All this has got to be seen against the background that the appellant is in constant pain and is waiting for an operation for spinal cord stimulation. His wife helps a great deal in looking after him and he also plays a very prominent role in looking after his children.
14. There is agreement between counsel that the approach that I should adopt in deciding whether to allow the appeal is that which was set out in the judgment of Lord Neuberger in Re: B (A child) [2013] 3 All ER 929 at paragraphs 93 and 94:

i. "93. 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).

ii. 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."

15. Thus it is agreed that it is unnecessary to look at other cases such as Belbin v The Regional Court of Lille, France [2015] EWHC 149.
16. Is the first offence an extradition offence?
17. The case of the appellant in relation to that is
18. that the District Judge erred in concluding it was sufficiently particularised and it did not comply with the requirements of section 2(6) of the 2003 Act. The offence is described in the following way in the EAW:

i. "In unspecified period of time in 2000 in Kisielow, gmina Goleszow, acting jointly and in communication with Robert Golabek and Krzysztof Szuber, he helped to hide away a car make Skoda Felicia Kombi of an unidentified registration number and undetermined value, exceeding the amount of PLN 250,000, which was obtained by commission of an unspecified offence to the detriment of an undetermined aggrieved person, in such a way that he disassembled the car in order to prevent it from being identified."

19. The relevant legal background is that section 2 of the 2003 Act provides that:

i. "(1)This section applies if the designated authority receives a Part 1 warrant in respect of a person.

ii. (2)A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—

iii. (a)the statement referred to in subsection (3) and the information referred to in subsection (4), or

iv. (b)the statement referred to in subsection (5) and the information referred to in subsection (6)

v. ...

vi. (5)The statement is one that—

vii. (a)the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and

viii. (b)the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

ix. (6)The information is—

x. (a)particulars of the person's identity;

xi. (b)particulars of the conviction;

xii. (c)particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

xiii. (d)particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

xiv. (e)particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."

20. In Romania v Bohm [2013] EWHC 2671 (Admin), Sir John Thomas (then President of the Queen's Bench Division) stated at paragraph 5 that:

i. " ... if the particulars required by the Act are not set out in the EAW, the EAW is void."

21. The nature of the information that is required to show that dual criminality is proved was considered by Hickinbottom J in Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin), where he concluded at paragraph 34 that:

i. "However, adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for - and to enable him to consider whether any bars to extradition might apply. In the light of that, and having regard to Article 8(1) of the Framework Directive, I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted - and some information about when and where the offences were committed, and the requested person's participation in them, although not necessarily in the same level of detail as would be required in an accusation warrant. Furthermore, common sense dictates that it is likely that more particulars will be appropriate in more complex crimes such as fraud than in crimes such as simple theft. However, there is no formula for appropriate particularisation. Each case will depend upon its own facts and circumstances."

22. It is of importance to bear in mind the way in which the courts have decided that a European Arrest Warrant should be construed and ,in particular, how inferences can be drawn. In the case of Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), Sir John Thomas, President (as he then was), explained at paragraph 57:

i. " ... the facts set out in the EAW must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts alleged."

23. Thus it is said by Ms O'Raghallaigh that where dishonesty is not expressly mentioned in the description of an offence, the court must be satisfied to the criminal standard that the description of the conduct impels the requisite mens rea as the only possible inference.
24. Section 22 of the Theft Act 1968 deals with handling stolen goods and if the matters set out in the first count are to be a criminal offence in English law they would have to satisfy the requirements of that section. It states that a person handles stolen goods if (otherwise than in the course of stealing) knowing or believing them to be stolen goods, he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
25. The appellant's case is that the District Judge erred in concluding that the description of the conduct in offence 1 was sufficiently particularised because the offence by which the car was obtained was "unspecified". There is therefore nothing which shows that it was obtained through criminally dishonesty means. To reinforce that point, it is said by Ms O'Raghallaigh that the remaining two cars (that is those in the second and third offences in the EAW ) are capable of being described as originating from a burglary but crucially they therefore have not been set that out in relation to the first count in the European Arrest Warrant and that is fatal.
26. It is also said on the appellants' part that the registration number of the car is not stated in the EAW or anything which indicates the condition of it when it arrived in the appellant's possession. This lack of information has to be set against the lack of information as to the owner of the car.
27. It is therefore submitted by Ms O'Raghallaigh that the District Judge's findings that the car was clearly stolen and the fact that the appellant acted in concert with someone else were insufficient to properly found a decision that the particulars complied with 2(6)(b)of the 2003 Act . The position is therefore that the appellant, together with others, disassembled a car that belonged to an unidentified person in circumstances where there is no information as to whether and/or if it was stolen and therefore it cannot be right to draw an inference of a dishonest mens rea.
28. In response, Ms Bostock, on behalf of the judicial authority, contends that there is sufficient information to conclude that the first offence in the EAW was the offence of handling stolen goods and which therefore satisfies the test for dual criminality under section 10 of the 2003 Act. She points out that the description which is set out, and which I mentioned a few moments ago in the first count, is preceded by words in box C of the European Arrest Warrant for all of the counts that indicate "offences described in points 1, 2, 3 of part E2 constitute a sequence of offences". Those offences are then outlined at points 2 and 3 containing the same wording, but where offence 1 says "obtained by commission of unspecified offence", points 2 and 3 contain the words "obtained by commission of the offence of burglary on the day 13th February 2003" and "obtained by commission of the offence of burglary on the day 5th March 2003" respectively.
29. It is also said by Ms Bostock that all the offences are described as being contrary to the same Article of the Polish Penal Code, namely Article 291 paragraph 1, and that they are all of exactly the same nature. Therefore it is said by Ms Bostock that it would be fantasy to suggest that this does not lead to the inference that the commission of an unspecified offence really amounts to an offence of misappropriation of property by whatever means.
30. A matter of importance is that the use of the words "obtained by commission of an unspecified offence to the detriment of an undetermined aggrieved person" indicate that it had been obtained by criminal conduct against the wishes of their owner. That, to my mind, indicates a form of theft and a form of dishonesty, which is shown by the fact that earlier in that wording it talks about the appellant "helped hide away a car" and then it goes on to state that it was done "in such a way that he disassembled the car in order to prevent it from being identified". The inevitable inference to be drawn from all that was that it was an act of dishonesty by which the vehicle had been acquired and certainly by the way it had been dealt with. .
31. There has also been some further information of 9 January 2015 which indicates the offence could not be determined precisely during the course of the case, in the sense that the court was unable to identify where it was stolen from because the number plate was not found and the Polish courts could not say whether it was stolen during a burglary or as a result of some other form of misappropriation, but the important point was that the appellant knew that it had been dishonestly obtained. It has been suggested that the absence of any reference identifying a victim to the offence is fatal to the case of the judicial authority.
32. Mitting J held in the case of Arturs Veiksa v Prosecutor's General Office of the Republic of Latvia [2013] EWHC 117 (Admin) at paragraph 2 that there is no requirement that a warrant should contain the victim of the alleged offence and I respectfully agree as it would be enough for the EAW to state or to lead to the inevitable inference that the item in question was stolen.
33. In those circumstances, I have concluded that the first offence contains sufficient particulars to satisfy the requirements of dual criminality as it shows the offence of handling stolen goods. Put in another way, the case is adequately particularised as the appellant knew or believed the vehicle to be stolen, the product of a criminal offence, dishonestly assisted in its retention or disposal by, in the words of the European Arrest Warrant, disassembling the car in order to prevent it from being identified.
34. article 8
35. That means that I then have to ascertain if the Article 8 rights of the appellant and his family should prevent him being extradited for these three counts set out in the European Arrest Warrant.
36. It is clear from two recent cases of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487 that there is a very substantial public interest in complying with international obligations in extradition. The matter is explained very clearly by Baroness Hale at paragraph 8 of HH:

i. "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."

37. It is also very clear that the interests of the children have to be looked at extremely carefully and the court has to focus on those (see HH at paragraph 30). It also was stated by Lord Judge, then Lord Chief Justice, at paragraph 132 in HH that:

i. "The extradition process involves the proper fulfilment of our international obligations rather than domestic sentencing principles. So far as the interests of dependent children are concerned, perhaps the crucial difference between extradition and imprisonment in our own sentencing structures is that extradition involves the removal of a parent or parents out of the jurisdiction and the service of any sentence abroad, whereas, to the extent that with prison overcrowding the prison authorities can manage it, the family links of the defendants are firmly in mind when decisions are made about the establishment where the sentence should be served. Nevertheless for the reasons explained in Norris the fulfilment of our international obligations remains an imperative. ZH (Tanzania) did not diminish that imperative. 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...."

38. The case for the appellant is that the District Judge was wrong to conclude that extradition would be a proportionate interference with the Article 8 rights of the appellant, his wife and his family because this offending this was done over a long period and indeed the offences are very old, being 15 and 12 years old respectively. There has not been any culpable delay on the part of the judicial authority but the overall passage of time remains considerable.
39. It is always a matter of great importance to see how somebody has changed their life after committing offences many years ago, which the appellant appears to have done.The appellant has considerable limitations on his mobility, and he is in constant pain and he cannot work. That means that he spends much more time with his family and his absence from home for 3 years would obviously be a massive blow, as is shown by the attitude of his children. It is noteworthy that two of his children appear to be reacting particularly badly to the prospect of extradition. The example that was given of deliberate brick throwing by one son in order he would be extradited with the appellant is very alarming.
40. It is to the appellant's credit that he has not re-offended and he has worked whenever he has been able to. He has lived openly in the United Kingdom and he has also has been subjected to a 10-hour curfew for 10 months now. Ms O'Raghallaigh says that the District Judge's decision, which she accepts was finely balanced, was in fact wrong.
41. All these matters have to be looked at in the overall context. There are a number of factors favouring ordering extradition. First, these offences consisted of a series of organised criminal activities of disassembling and concealing stolen goods. Second, the Polish courts imposed immediate sentences in a climate in which they frequently imposed suspended sentences, and one for 3 years, which shows the gravity of the matter. Third,the appellant is a fugitive from justice in disturbing circumstances as after the exhaustion of his appeal process he applied to defer the serving of his sentence and he used the indulgence given to him by the Polish courts to make good his escape to the United Kingdom and to avoid serving his sentence without notifying the authorities of his whereabouts.
42. The appellant was notified of his obligations to report changes of address but the Polish authorities were unable to find him and a further order of 27 February 2008 ordered him to be searched by way of a wanted notice. The authorities were unable to locate the appellant because he had left the United Kingdom in March 2006. The authorities in Poland made continued efforts to locate him since his disappearance so there is no culpable delay.
43. So far as the delay since the European Arrest Warrant was issued, the National Crime Agency provided a written statement that they conducted checks for the appellant on receipt of the Dutch notification about 4 November 2011 but there was nothing available to connect the appellant to the United Kingdom. He was located by the Polish authorities with a potential address and he was arrested soon afterwards. It is accepted that the appellant does have mobility problems, but it is no part of the appellant's case that he could not receive proper treatment for them in Poland and there is nothing to suggest the Polish authorities would not be able to ensure his physical needs in prison in the way they would be in England.
44. I am very conscious, as I have explained, about the fact that the appellant has children in this country who are obviously very attached to him. It is also quite clear that it is much more disruptive for somebody to be extradited abroad than to be sent to prison in this country.
45. I have come to the conclusion that this is a case which is what I think Ms O'Raghallaigh described as a borderline case, but at the end of the day I have come to the conclusion that the view of the District Judge was right particularly as the public interest is concerned in extradition in ensuring first that people convicted of crimes should serve their sentences,second that the United Kingdom should honour its treaty obligations and third that there should be no save havens to which they can flee in the belief that they would not be sent back. THese factors drive me to the conclusion, not without hesitation, that this appeal, notwithstanding the admirable submissions made by Ms O'Raghallaigh, must be dismissed.