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
		1 May 2015

1. SIR STEPHEN SILBER:
2. Introduction
3. Mr Rutowski appeals against the order of District Judge Blake, made at the Westminster Magistrates' Court on 27th February 2015, ordering his extradition to Poland pursuant to a European Arrest Warrant. It was a conviction European Arrest Warrant issued by the Regional Court in Bialystok on 5th August 2014 and it was certified by the National Crime Agency in this country on 16th October 2014.
4. The warrant was issued in order for the appellant to serve two sentences. He had been convicted by the District Court on 14th February 2007 for an offence of driving whilst disqualified and "while under the influence of alcohol", for which he received an 18 month sentence. The appellant states that this was suspended. He cannot recall the period of suspension and I do not think very much depends on that. The second conviction was at the District Court on 26th March 2008, for which he was sentenced to 2 years' imprisonment for two offences. One was for a sexual assault on a female aged 16, whereby he led the complainant "by force" to submit to sexual activity, such that holding her against her will he "put his hand into her panties and touched her sexual organs and he touched her breasts and stomach with his other hand". The second offence was for driving with excess alcohol and while disqualified on 26th August 2007 which was about 6 months after the previous sentence had been imposed.
5. The appellant accepts that he was a fugitive, certainly so far as the second series of convictions were concerned. He, in his evidence, explained that he had an alcohol problem after his wife's death in a road traffic accident which occurred in February 2006. He remained in Poland for 3 years after the first sentence and he attended Alcoholic Anonymous meetings and stopped abusing alcohol. He regrets his first and third offences.
6. He moved to the United Kingdom on 10th February 2010, in order to be with his adult children and grandchildren, who settled here between 2008 and 2009. The appellant wanted to live nearby and to help to support his grandchildren by his daughter who are now aged 10 and 5 respectively, as she is a single parent. The appellant was also struggling to pay his household bills at the time he came to this country. His evidence was first that he has lived and worked openly in this country for 5 years, second that he has not committed any offences here, and third that he has obtained a national insurance number and worked in the building industry, assisting his son from 2012 to early 2014 and when he became officially self-employed.
7. The appellant learned that the local police were looking for him and he surrendered himself. He has been remanded in custody since that date for a period which must now be just a few days over 6 months.

The District Judge's findings

8. The District Judge found that the appellant was a fugitive from justice in that he came over here because he was aware he would be required to serve a custodial sentence and he had no money to pay his bills. He also recorded that he wished to obtain employment and spend time in the United Kingdom and with his grandchildren. The District Judge noted that the appellant had explained that he wanted to stay in the United Kingdom with his family here and that extradition would have a bad impact on him as he had no family left in Poland. He also mentioned that he was beginning to lose his memory, but there was no medical evidence before the District Judge and it was not suggested that there was a medical bar to extradition.
9. The District Judge then carried out the requisite balancing exercise, noting that the appellant had a substantial term of custody to serve for what the District Judge accepted were not minor offences. The District Judge took into account the delay in making the decision which, in his view, had been caused by the appellant leaving the jurisdiction with his whereabouts being unknown for a period of time. The District Judge concluded that there would be interference with his private and family life if he was extradited but this was outweighed by the public interest in his extradition. He therefore ordered extradition.

The Approach of this Court

10. There is no dispute between counsel in this case that I should carry out the appropriate balancing exercise rather than applying the sort of test specifid by this court in Belbin v Regional Court of Lille [2015] EWHC 149 (Admin). It is also common ground that the law in relation to this has been explained by the Supreme Court in the recent case of Norris v The United States of America [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. The approach to be adopted was explained by Baroness Hale at paragraph 8 of her speech when she explained the principles:

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

…

(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.

(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.

(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.

(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.

(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."

Baroness Hale explained in paragraph 21 of her speech that this country could not rely upon Poland to have considered the Article 8 rights before issuing the warrant or protecting the rights after the warrant was considered.

11. The point made by the appellant is that there is authority that suggests that each sentence within a European Arrest Warrant should be approached separately. Ms Westcott relies on my decision in the case of Nowak v Circuit Law Court in Swindica, Poland [2014] EWHC 3466 (Admin)as in that case I looked at two of the cases separately, one being one of supply of drugs and the other one of possession 1.2 of marijuana.
12. In that case, as it made clear in paragraph 26 of my judgment, counsel who appeared for the judicial authority agreed that it would be an appropriate case to look at the two offences separately and on that basis, I did so and I ordered extradition on the supply offence but not on the earlier possession offence. It is necessary to stress that I have reached that decision on the basis of an agreement by the counsel for the judicial authority. Nowak should not be regarded as authority for the proposition that each sentence should be looked at separately and indeed there are no end of authorities in which the cumulative effect of the sentences are looked at rather than considering each sentence individually.
13. Ms Mary Wescott explains that this is a case in which it would be wrong to order extradition for reasons. First, she point s out that the initial sentence was a suspended sentence. Second, she says that the District Judge should have found that the delay could not have been caused by the fact that the appellant stayed in Poland until 10th February 2010 and in any event, once he came to this country he could have been easily identified. Third,Ms Wescott stresses that the appellant plays an important role in the family life of his daughter, who is a single mother and his grandchildren. Fourth, she points out that the appellant had rehabilitated himself from alcoholism and she reminded me that in the case of Pakulski v Poland [2014] EWHC 3197 (Admin) this was regarded as a critical factor. Fifth, Ms Wescott stresses that he voluntarily surrendered himself to the British police and that he has no family in Poland. Finally, she point out that these offences were committed between 8 and 9 years ago.
14. I take all those points on board and regard them as being important factors. But the stark fact in this case is that if the appellant had been convicted in this country of the sexual assault offence and the second offence of driving whilst disqualified with excess alcohol, 6 months after he had the previous sentence, he would undoubtedly have been sent to prison. It was made very clear in the case of HH, by Lord Judge at paragraph 132, that in those circumstances it should only be in very rare cases that extradition should not be ordered where an Article 8 point is set up as a ground of resisting extradition. To my mind that is a point of very significant importance in this case.
15. All these cases show a pattern of offending of substantial importance when, added to that there is the fact that he certainly was a fugitive after 2010, I have come to the clear conclusion that this is a case where the public interest in extradition outweighs the Article 8 rights and I stress again, as Baroness Hale said, the constant and weighty public interest in extradition, that people convicted of crime should serve their sentences and that the United Kingdom should honour its treaty obligations to other countries and there should be no safe haven to which people can come in the belief they will not be sent back. Thus, with great respect to the admirable submissions of Ms Wescott, I have come to the conclusion that this appeal has to be dismissed.