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
		14 May 2015

1. MR JUSTICE KING: This is an appeal against an order for extradition which was made on 11 February 2015. It is pursuant to a conviction warrant in respect of two offences of assault committed in 1993. The appellant was sentenced to 4 years' imprisonment. 1 year 238 days remain to be served if one looks only at periods of detention in Poland. Taking into account the period of remand in custody in these proceedings, which is just under 6 months, I understand that the outstanding period is 1 year and 52 days.
2. The grounds of appeal are that the district judge came to the wrong conclusion in rejecting the challenge to extradition under section 14 of the Act (that is oppression by reason of passage of time) and/or when considering the question under section 21 of the Act (that is to say the question of the compatibility of the extradition with the Convention rights of the appellant and indeed of his family under Article 8). The district judge found that extradition would be proportionate and, in conducting the balancing exercise with which we are all familiar, held that any interference with the private and family lives of the appellant and his family was outweighed by the public interest in extradition.
3. The principal facts are these. As regards the offences, they were committed respectively on 29 July 1993 and 8 September 1993 at a time when the appellant was some 33 years of age. The district judge, having regard to what is set out in box E of the warrant, described the offences in these terms: as regards the first offence of July 1993, this was an assault causing GBH with intent; the second in September 1993 was either GBH with intent or an attempted murder, and it involved three stab wounds to the neck resulting in the carotid artery and carotid vein being cut.
4. I have looked again at the particulars in box E, and undoubtedly the second of those two offences was a serious offence on the face of those particulars. There is description of a life threatening disorder, loss of ability to speak, and right-sided hemiparesis in the victim. I bear in mind the sentence passed is one of 4 years overall, which may mean (I have no knowledge) that there were factors here in mitigation which reduced the culpability of the appellant sufficiently to enable a relatively light sentence to be imposed notwithstanding the nature of the offending.
5. The appellant was arrested between 8 September 1993 and 12 May 1994. He was convicted on 5 May 1994 and given the sentence I have already indicated. Following that conviction and the judgment against him becoming final he absconded. He, as it was put, was "hiding from justice". He was made the subject of a wanted notice. Finally, he was found on 24 October 1996 and was sent to prison.
6. On 14 January 1997 he was granted prison leave for one year, that is until 15 January 1998. This was on the grounds of a health condition which I understand was an investigation into testicular cancer. He was obliged, however, under the terms of that leave to return to prison on 15 January 1998. He failed to do so. He was then made the subject of another wanted notice and later found and taken back to prison, where he was detained between 18 September 1998 and 14 December 1998.
7. On 14 December 1998, he was granted what is described as early conditional release from serving the remainder of the sentence, and he was given a probation period to run until 14 December 2000. However, on 6 August 1999 the court in Poland revoked this early conditional release owing to the appellant's non-compliance with the terms of his probation, in particular the obligation to stay at his place of residence. The effect of that revocation was in effect to activate that which remained of his sentence. However, the police in Poland could not find him in order to arrest him. A wanted notice was issued. The further information which was supplied by the respondent indicated in this respect that thereafter, every half year, the police filed reports with the Polish court about the result of searches for the appellant but each time the court was informed the police were unable to locate him.
8. Finally, on 26 October 2005, the police established that the appellant was living in Great Britain. The words used in the further information were these:

"On 26 October 2005 the police were able to establish that the convict had left Poland and was hiding in Great Britain."

The Polish court thereupon transferred this information to the prosecutor's office. On 4 January 2006 the prosecutor's office filed the request with the Polish court to issue the European Arrest Warrant. That European Arrest Warrant, although issued in 2006, was not certified in this country by the NCA until 1 May 2013. No explanation is before this court or indeed the court below to explain that long delay of some 7 years.

9. The district judge had a large amount of documentary evidence before her regarding the life of the appellant and his wife and his family in Great Britain and in particular in relation to the health of the appellant and the health of his wife. This included information of the poor mental health of the appellant's wife, clearly having a depressive condition, and further of cardiac problems. The appellant himself is not in good health either.
10. Following the certification of the EAW, the appellant was arrested by a police officer on 10 November 2014. There was a witness statement from that officer before the court below explaining how it came about that some 18 months had elapsed from certification to that arrest. His evidence was that he had been trying to execute the warrant for the previous 18 months at a number of addresses, but he had been told by the appellant's wife that the appellant had died. On the day of the arrest, the officer called at the appellant's address and was told again by the appellant's wife that she had no husband and that only she lived there. The officer heard movement within the property, entered and found the appellant. The appellant admitted his identity and said "I know you have been looking for me".
11. The appellant gave evidence to the district judge in accordance with his proof of evidence. His case was that he had come to the United Kingdom in 2002. He had not understood he was breaching the terms of his early release conditions and that he had come to the United Kingdom with the probation officer's permission. The district judge rejected that evidence, saying that it was not consistent with the further information provided by the respondent.
12. The appellant also gave evidence that, although he was not initially aware that his early release order had been revoked, he did become aware of that in 2006 when he was told by his former daughter-in-law, who was living at the appellant's former address in Poland, that she had opened a letter addressed to him, stating the suspended part of the sentence had been activated. The district judge records in his judgment that in evidence the appellant conceded that he had taken no steps to contact the authorities to either hand himself in or to deal with the matter in any way. As the years went by he had become less and less inclined to go back to Poland. His daughter had a son and the appellant spends time with his grandson and derives pleasure from it.
13. The district judge summarised the evidence as regards private and family life in these terms. The appellant had provided evidence that neither he nor his wife enjoys good health. The appellant was treated for cancer during his first release from prison sentence between January 1997 and January 1998. Before he was remanded in custody in respect of the extradition proceedings he was being investigated for a possible prostate cancer. His wife had a history of poor mental health.
14. The findings of the judge on the evidence were as follows. She accepted that she had insufficient evidence to say the appellant was a fugitive when he left Poland in 2002. The judge went on to find, however, that the appellant became a fugitive in 2006 when the appellant, as I have indicated, had been made aware of the activation of the suspended part of his sentence by his former daughter-in-law.
15. As regards passage of time and delays in this case, the judge addressed some of them in her judgment. She said the Polish authorities were made aware in 2005 that the appellant had been living in the United Kingdom but not his precise address, and that this might explain the gap between the activation of the suspended sentence (August 1999) and the issue of the EAW in 2006 and the finding of the appellant in November 2014. The district judge observed that finding an individual who does not want to be found is a time-consuming task and that it was "clear that the appellant did not want to be found. He made himself scarce and with the assistance of his wife avoided detection for a long time". The judge acknowledged that a long time had elapsed since the sentence was activated, but she found:

"... the sole cause of the delay has been the conduct of the appellant in both hiding from the authorities in Poland and then leaving the country, forcing the Polish and then the British authorities to track him down. It would be unjust for the appellant to benefit from delays that he has caused."

16. On the basis of those findings, and in particular the finding that the appellant had become a fugitive in 2006, the court below, in line with authority, if the findings were justified, that the section 14 argument had to fall. I should say at once that if the findings were justified on the evidence that he had been a fugitive since 2006, that must be a proper analysis by the court below. It is well established from the authority of Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 that a fugitive from criminal proceedings may not rely upon any delay arising from the steps they have taken to avoid detection and/or detention in the knowledge that they are wanted to serve a sentence. It cannot be relied on for the purpose of showing oppression for the purposes of section 14. At page 783 of that authority, Lord Diplock said in terms:

"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him."

17. Lord Keith at page 787D, referring to an earlier authority of Narang [1978] AC 247, observed that that authority made clear that, in considering the effect of passage of time under predecessor legislation:

"No account is to be taken of time that has passed by reason of action taken by the fugitive himself, with a view either to concealing the commission of the offence alleged against him or his involvement in it, or to hindering the criminal authorities in bringing him to trial."

18. As regards the question arising under section 21 and the Article 8 challenge, the district judge set out the relevant principles by reference to the well-known cases of Norris and HH, stated that the interests of children are a primary consideration, but other factors include: (a) the public interest in honouring extradition treaties; (b) the Article 8 rights of victims; (c) the gravity of the offences; (d) whether the defendant has broken bail conditions in order to flee; (e) the strong public interest in ensuring that children are properly brought up; and (f) delay and whether during the lapse of time the requested person and family had made a new and blameless life for themselves.
19. In concluding that extradition was proportionate, the district judge carried out that very exercise which all courts are now enjoined to undertake, following the guidance of the Divisional Court in Celinski [2015] EWHC 1274, namely that the court should set out the factors in favour of extradition and the factors militating against extradition. She did so in these terms:

"Factors in favour of extradition are:

1. The weighty and continuing public interest in extradition.

2. The nature of the original offences. Both were serious but one was particularly serious and is likely to have been charged as attempted murder in this country.

3. The requested person has tried from the very outset of the proceedings in Poland to avoid serving his sentence and has hidden from the authorities throughout.

4. The requested person with the help of his wife has successfully avoided detection in this country for many years.

Factors which may militate against extradition are:

1. The requested persons' right to enjoy his family with his wife, step-daughter and grandson.

2. His wife's poor mental health.

3. His own poor health.

4. The requested person has no convictions in the UK."

20. The conclusion of the district judge was in these terms:

"My finding is that the health of the requested person and his wife is not such as to carry significant weight in the balancing exercise. The requested person's wife has her daughter living nearby to give support and there is no evidence before me that she is totally dependent on others to do for her. The requested person's health can be managed by the Polish authorities. I cannot say that this is one of those rare cases where the effect of extradition on the requested person or his family would be so severe as to outweigh the public interest in extradition."

21. Miss Hill challenges the determination of the district judge under both heads of challenge (ie section 14 and Article 8). As to section 14, Miss Hill challenges the conclusion of the district judge that the appellant had become a fugitive in 2006 when he was made aware of the activation of the suspended part of his sentence by his former daughter-in-law. She says that there is not evidence sufficient to justify a finding that the appellant had actively sought to conceal himself from the authorities once he knew that he was wanted, the sentence having been activated. She says that mere omission of not returning to Poland could not be sufficient to justify the finding of the district judge.
22. I reject this challenge. The district judge was undoubtedly right to find that the appellant was not a fugitive when he left Poland in 2002 because there was no evidence as at that time that he had become aware that his sentence had been activated. As Mitting J said in Pinto [2014] EWHC 1243 (Admin) at paragraph 6:

"... a person can only become unlawfully at large if he knows that he is required to serve a sentence of imprisonment. It is not enough that he might be eligible to be called upon to serve that sentence of imprisonment. In a case such as this where the sentence is suspended, at the minimum he must know that the sentence has been activated."

23. But, on the finding of the district judge, in this case the appellant did become aware that his sentence had been activated in 2006, and, in my judgment, this court cannot interfere with the findings of the district judge that the appellant had tried from the very outset of the proceedings in Poland to avoid serving his sentence and had hidden from the authorities throughout; that the appellant was guilty of conduct amounting to hiding from the authorities in Poland and then leaving the country and forcing the Polish and then the British authorities to track him down; and that he had actively concealed himself in an effort to avoid detection after 2006. The district judge in my judgment was fully entitled to take into account in reaching the conclusion she did what the police officer had told her, albeit it was conduct after the EAW had been certified, that he had been trying to execute that warrant for 18 months at a number of addresses but had been told by the wife that the appellant had died. The conduct of the appellant when the officer visited the address in order to arrest him (ie hiding away) in itself is a piece of evidence which could be looked at to assess what he had been doing in the intervening period since he knew of the activation of sentence in 2006.
24. I take on board that there is some evidence that he had been living openly in the sense that he reported to the police a loss of a passport, but none of that, in my judgment, enables this court to interfere with what is essentially a finding of fact by the district judge that the appellant had actively taken steps to conceal himself from the authorities after he knew that he was wanted for the activated sentence.
25. I then turn to the Article 8 challenge. On the face of it, it would be very difficult for this challenge to succeed if one looks simply at the way the district judge set out and then balanced the factors for and against extradition. This court will not interfere with a decision on proportionality under Article 6 unless it comes to the conclusion the decision below was wrong (see Celinski), and certainly this court will not of itself assess the balancing exercise afresh unless it can be said that the court below carried out the balancing exercise improperly, by which I mean took into account the irrelevant, or ignored the relevant, or applied wrong principles, or came to irrational conclusions. On the face of it, the district judge carried out a balancing exercise which cannot be faulted.
26. However, in respect of one element which is relevant to extradition and the balancing exercise under Article 8, I accept Miss Hill's submission that one matter was omitted altogether and one relevant matter was not actually expressly referred to when the balancing exercise was set out, albeit it had been referred to in part expressly and otherwise tangentially earlier in the judgment. That which is not referred to at all is the length of sentence which has already been served and the length of sentence still to be served. If one takes into account the period of time spent in detention in Poland and the period of time spent on remand in these proceedings, the appellant has served nearly three quarters of his original sentence and 1 year 52 days remains only to be served. I accept on authority that that is a factor which can go to diminish the public interest or the weight to be attached to the public interest in extradition.
27. Miss Hill also in the same context prays in aid that the purpose of the early release in Poland coupled with probation must indicate that the purpose of that sentence at that stage would have been to help the appellant to establish a law-abiding life by finding work and rehabilitation. She submits that if one factors in that aspect together with the relatively limited period yet to be served of the overall sentence, there is a reduced public interest in returning the appellant to serve what remains, given he has achieved over many years a law-abiding life and has found work and rehabilitation. It is not in dispute that the appellant has committed no further offences since 1993 and hence there is little public interest in ensuring the return of the appellant to serve what remains of that sentence so long after it was originally imposed.
28. The other factor which I accept was not properly put into the balance is the delay since the offences were committed. Delay is relevant to the balancing exercise under Article 8, even though the appellant may well be a fugitive denying him reliance upon section 14. It is over 21 years since these offences were committed. There is particular delay, moreover, between the issue of the EAW in 2006 and the certification in 2013. As I have indicated, there is no explanation given in any information from the respondent as to explanation for that inordinate delay. Miss Hill properly relies on the observations of the Supreme Court in HH that 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. Delay can also reflect a possible lack of interest in the requesting state in securing the return of the requested person.
29. None of these matters are mentioned in the balancing exercise, although it is true that delay is mentioned earlier in the judgment in the passages that I have already referred to. In particular, the district judge acknowledged "a long time has elapsed since the requested person's sentence was activated" but found that the "sole cause" of the delay had been the conduct of the appellant in both hiding from the authorities in Poland and then leaving the country, forcing the Polish and then the British authorities to track him down.
30. It is in these circumstances necessary for this court to reassess the balancing exercise of the district judge, by this court taking into account those factors that I have just identified regarding delay, the length of sentence already served and that which remains. To this extent, the court is itself assessing proportionality afresh.
31. I have not found this an easy case to resolve. I am very mindful that, as I have found, there was evidence upon which the district judge was fully entitled to find that the delay in tracking the appellant down was due to his own active steps in concealing himself from the authorities. Notwithstanding the Polish authorities were aware in 2005 that he was living in Great Britain, it is difficult to find the failure to find him until 2014 to be a result of failing to find someone who was there easily to be found.
32. However, I have been troubled by the wholly inexplicable delay between the issue of the warrant in 2006 and the certification in 2013. There is moreover a 21-year gap between the commission of these offences when the appellant was 33 years of age, and the extradition proceedings in 2014/2015. Undoubtedly the appellant is a changed man on the evidence; undoubtedly he is rehabilitated and has not reoffended. The offences were serious, undoubtedly, but only 1 year 2 months remains to be served and he has served three quarters of the sentence passed. If one factors in the factors already stated by the district judge militating against extradition, namely his wife's poor mental health, his own poor health and his good character in this jurisdiction, it is difficult to say that the weight to be attached to the public interest in extradition is anything other than diminished compared with what it would have been had the gap I have referred to between commission and today been much less.
33. Ultimately I have come to the conclusion that factoring in these issues as to delay and the length of sentence served and yet to be served omitted by the district judge, that the district judge's conclusion was wrong and that it would in the circumstances be disproportionate to return the appellant, now 54, to serve what in comparative terms is a relatively short sentence and certainly is a small percentage of that of the overall sentence passed. For all these reasons, I allow this appeal.
34. MISS HILL: My Lord, I am most grateful, and can I say thank you so much for sitting today and hearing what has ended up to be a bit of a marathon case.
35. THE JUDGE: It is an interesting case.
36. MISS HILL: It is, and I am sure the appellant (Inaudible).