England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/06/2015

Mr Justice Cranston:

1. The appellant seeks to appeal the decision of District Judge Purdy, made on 23 April 2015 at Westminster Magistrates' Court, ordering his extradition to Poland on a conviction European Arrest Warrant ("EAW") that was issued out of the Regional Court in Lublin, Poland, on 16 April 2013 and certified, by what is now the National Crime Agency, on 10 May 2013. The appellant's extradition is sought to serve a sentence of imprisonment of 2 years and 6 months in respect of three offences of theft, criminal damage and burglary committed in 2002 and 2003.
2. One aspect of the appellant's case is that Poland breached the specialty provisions which apply in extradition cases. Specialty is a basic principle that a person may only be dealt with in the requesting state for the conduct in respect of which extradition was ordered. That is a serious matter and one reason I gave permission to appeal on the papers on 26 May 2015. The appellant is currently in custody for the purposes of extradition and has been there now for 7 months.
3. The chronology of the three offences on the EAW is as follows. Offence 3 was committed on 13 November 2002. It was the theft of a mobile telephone, with a value of 700 zloty, the offence being committed with another. On 23 September 2003, offence 1 on the EAW, criminal damage, involved 280 zloty. Shortly after, on 30 September 2003, offence 2, burglary, involved 1000 zloty.
4. On 27 April 2004 the appellant was sentenced for offences 1 and 2. There was a suspended sentence, with probation for 5 years. The following month, on 10 May 2004, he was sentenced for offence 3, a suspended sentence with probation for 3 years.
5. In 2006 the suspended sentences for all three sentences were aggregated. However, the appellant had migrated to this country. Almost immediately he began offending. In January 2006 he was convicted of shoplifting and possession of class C drugs by Horseferry Road Magistrates' Court, in April 2006 he was convicted of shoplifting by Redbridge Magistrates' Court, and in June 2006 there was a conviction by Thames Magistrates' Court.
6. Then in October 2007 the appellant was extradited to Poland on other matters and he served a sentence in Poland for that matter from late October 2007 until 18 June 2009. Following that sentence he was then in prison on remand in Poland until 22 January 2010 for other offending until early 2010. He was later found not guilty of that offence. He was almost immediately back in prison from 6 February 2010 until November 2010 on other offences; a summons to serve a sentence of imprisonment in relation to this sentence was submitted on 15 July 2011. On release in early 2011 he returned to this country. Subsequently he married and he and his partner now have a child.
7. He had been told shortly before release in Poland that he needed to inform the authorities of his whereabouts. On his return here he seemed to stay away from crime for a while, but in March 2014 was before Southwark Crown Court and was given 18 weeks' imprisonment for theft from the person, and on 3 March 2015 was before North London Magistrates' Court for battery and given 16 weeks' imprisonment. I shall return to this last offending later in the judgment.
8. While the appellant was in prison in Poland in 2009, serving the sentence for which he had been extradited, there was a motion from the custody suite at Lublin Prison, which resulted in the aggregation of sentences for other offending with the sentence for the extradited offence. That aggregation came before the Polish court on 18 June 2009. He was represented by a lawyer at what the Judicial Authority's further information describes as a "trial".
9. On 3 November 2009, he was brought before the court again and informed that the aggregate sentence could not be enforced since he had been extradited on the other offence and hence specialty applied. Again he was represented by a lawyer. He was informed he could waive specialty. He refused to do so.
10. Before the District Judge, the issues in the case, apart from specialty, were passage of time and Article 8 of the European Convention on Human Rights. The District Judge summarised the appellant's evidence as follows:

"I find he exercised his right not to waive specialty concerning the instant offense when in Poland following the 2007 earlier extradition surrender. However, the earlier breaches of the suspended sentence are obviously due to further offences and non cooperation with probation. …Further, simply by virtue of the specialty provisions which he utilised to his then favour, the instant matters had to remain outstanding and upon release he came back to the UK forcing the Judicial Authority to verify his whereabouts and then, as they did, seek his arrest. Other offending here (24/4/13) of theft from the person unresolved until 28/4/14 further impacted on the resolution of matters as has the 4/9/14 assault on his wife. I find the delay is occasioned by repeated offending compounding by the complications of the specialty provisions not due to any lack or desire or action to enforce by the Judicial Authority."

11. In relation to passage of time, the District Judge made the following findings:

"I can take the matters fairly shortly. The defence rely on the oppression limb of s.14 making surrender unjust. I reject that notion. While the chronology is involved much of that is because of repeated offending, in two jurisdictions, and the exercise of specialty rights. At no time could an objective observer have regarded this requested person as knowingly free of having served his just penalties or unaware of them. I find nothing oppressive on these facts which would make his surrender now in 2015 unjust."

12. As to Article 8, the judge said that because of his wife and young daughter, Article 8 was engaged. He continued:

"I have to ask if surrender would be disproportionate an interference with, now a very questionable family unit set against the duty to honour treaty obligations. Had there been any break in offending the age of these offences would be a powerful support for discharging this request. However the state of affairs is far from the truth. I cannot on the instant, somewhat involved, facts find surrender is in any way disproportionate."

13. It is the aggregation of the sentences, at what the Polish Judicial Authority has described as a "trial" in mid-2009, and the issue of waiver being put to the appellant only after this, which give rise to the specialty concern. Despite some relaxation in modern times, specialty is a fundamental principle of extradition. Given the high degree of trust which the United Kingdom places in EU extradition partners, however, a requested person will have a heavy burden to discharge if they are to make good a case that it has been breached. If there is any doubt about this, the requesting Judicial Authority must be given the opportunity to defend its actions.
14. In the circumstances of this case that is unnecessary. I am not persuaded that the Polish Judicial Authority was in breach of the specialty provisions in regard to the 2009 aggregation of sentences. As Ms Nice suggests, the reference to "trial" in its further information would appear to be an error of translation and "hearing" is the preferred term. We must make an allowance for the impact of translation in extradition cases: Fofana and Belise v. Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin). In other words, the appellant was not put to "trial" in breach of his specialty rights. While the pattern of the appellant's continuous offending is somewhat confusing, he had already been convicted and sentenced on the current offences prior to his earlier extradition. More importantly, it was whilst in custody in Poland that the appellant himself applied for the sentences to be aggregated. Further information from the Judicial Authority states that he "personally on date 29 May 2009 from Custody Suite in Lublin forwarded a motion on passing a cumulative judgment". As I have already explained, he participated at the hearing and was represented. Thereafter, he exercised his specialty rights and these were respected.
15. As to the delay point, Ms Draycott puts the appellant's case in a characteristically attractive manner. This offending occurred many years ago, 2002 and 2003, she says, when the appellant was in his late teens, the value of the offending is low (on her calculation, some £308) and the District Judge made no finding that he was a fugitive. Thus he can rely on the time bar under section 14 of the Extradition Act 2003. In her submission, the District Judge was wrong in finding that because the appellant had utilised the specialty provisions his extradition is not oppressive and he is to blame for the delay. In this conclusion, the District Judge failed to give proper weight to the false sense of security when the appellant exercised his specialty rights and was allowed to return to this country. The Judicial Authority, following activation of the sentences in this EAW, failed to request consent under section 54 of the 2002 Act to detain him and deal with him for those sentences, extradition would be oppressive given the appellant's family. In particular, the District Judge mistakenly concluded that the appellant had been convicted of assaulting his partner and failed to take this into consideration properly.
16. It is certainly most unfortunate that the appellant was not dealt with earlier for the offending in this warrant. However, under Polish law he was under an obligation to advise the court of any change of residence exceeding 7 days. This obligation arose at the time of the original conviction and with his subsequent offending. The appellant evidently failed to maintain contact with the authorities on moving to this country and then again on his return in 2011. As he was entitled to, he refused in 2009 to waive specialty. But it meant the offending on this warrant was not dealt with. For these various reasons, much of the delay flows from his own conduct.
17. Whilst the offences are dated, the appellant has not reformed himself and has continued with his distinctly unimpressive record. He has been in custody since November 2014 and there is no new evidence as to what issues have been faced by his wife and child in his absence and why she could not continue to manage in his absence were his extradition to proceed.
18. That, in effect, disposes of the Article 8 issue. The District Judge was wrong in assuming that he had assaulted his wife. At North London Magistrates' Court in March this year he was acquitted of assaulting his wife but convicted of assaulting her friend. However, it is evident that he could not live with his wife after his release from his sentence on those matters. Ms Draycott informs me that when she recently saw the appellant in prison he asserted that his wife supported his case, but there is no current evidence from her. In any event, there can be no suggestion that the appellant's extradition would have exceptionally serious consequences for his family which outweigh the public interest in extradition: see Polish Judicial Authorities v. Celinski [2015] EWHC 1274 (Admin).
19. The appellant has been in prison for 7 months waiting for his extradition to be resolved, but the time he has served is short of that which might make him eligible for release halfway through his sentence, a decision which in any event is properly one for the Polish court to make.
20. I dismiss the appeal.