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
		11 May 2015

1. MR JUSTICE KING: This is an appeal against an extradition order made by District Judge Goldspring on 13 March 2015, pursuant to a conviction warrant seeking the appellant's surrender to Poland a serve a sentence of imprisonment of 8 months in respect of two offences. Their description by the District Judge in his written judgment, taken from information within the arrest warrant, is in these terms:

i. "These offences were both on the same victim, his then mother in law. Both were committed on 16/3/06 in Poznan. The first would be an equivalent of common assault in this jurisdiction where he slapped her with the palm of his hand to her face. The second amounts to assault occasioning ABH which was pushing her down flight of stairs causing her to sprain wrist and bruising. The RP pleaded guilty to these offences and was initially given 8 month sentence suspended for 3 years and it is suggested in the EAW that this was upon condition of writing letter of apology within 1 month."

2. The appellant pleaded guilty to these offences in the Polish court in October 2006. He was present at the announcement of judgment, which was on 4 October 2006. In box D, it is said that the judgment of 4 October 2006 obligated the appellant to apologise to the aggrieved person in writing. It then says:

i. "The convict failed to carry out that obligation within the set deadline, and the apology he made later was in a disrespectful form, the court ordered the execution of the penalty of imprisonment sentenced in respect of [the appellant]. ... The above decision is final and no appeal is possible."

3. This was therefore a case in which (to use the language of this jurisdiction) an 8 month sentence was suspended for 3 years on conditions, one of which was that a letter of apology be written. The evidence given below, a note of which I have, suggests that the appellant accepted that he was supposed to write that letter within 1 month and probably did not do so, but said that he did eventually write a letter of apology, although "I wrote it in small letters, I am sorry, I was young and stupid". The activation (to use the language of this jurisdiction) of that suspended sentence was on 15 November 2007. On that date, the appellant did not appear, although he had been summoned, the letter summonsing him having been returned with a note that it had not been collected.
4. It is clear that by that date (that is November 2007) the appellant had left the Polish jurisdiction. It would appear that he left in 2006, came to the United Kingdom, then went to Belgium for 6 months and then returned to the United Kingdom. At some point in 2007, once in the United Kingdom, he formed a relationship with his now partner and wife. In 2011 they married. Two children have been born of this relationship, one born in 2013 and one born in 2014.
5. The European Arrest Warrant ("EAW") itself was not issued until 21 February 2011 (although it is clear that a domestic warrant for the arrest of the appellant was issued on 4 December 2009). The EAW was not certified until approaching some 4 years later on 25 November 2014. There is no real explanation provided for the delay between issue and certification. At tab 8 of my bundle the information from the National Crime Agency of this jurisdiction is that it was only in October 2014 (I repeat: well over 3 years after the issue of the EAW) that the Polish authorities circulated Interpol about this matter and it was received by the appropriate unit in Manchester in this country. After that, there was no delay: the EAW was certified on 25 November 2014 and the appellant was arrested on 15 December 2014.
6. Between that date and the hearing date the appellant was on bail with a curfew, and had been for some 5 months by the time of the extradition order being made. His daily curfew was for some 7 hours, so fell 2 hours short of the required period for the purposes of attracting automatic credit if he were to be extradited.
7. The reasoning of the District Judge (who heard evidence from the appellant himself) in support of the making of the extradition order is to be found in his ex tempore judgment. Two issues were taken before the judge. First, the passage of time bar pursuant to section 14 of the Act on the grounds that it would be oppressive to extradite. Secondly, the question under section 21 of the Act whether extradition would be compatible with the Article 8 rights of the appellant and of his family.
8. Two grounds of appeal are before this court, namely that the District Judge came to the wrong conclusion on both issues. I am aware of the decision of the court in Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin), particularly the judgment at paragraphs 22 through to 24 as to the approach this appellate court should take in these circumstances. What is clear from that judgment is that if this court comes to the view that the court below has approached the issue under either head in a way which does not properly apply the appropriate principles and/or has come to findings of fact to which no reasonable court could have reached on the evidence before it which had a material effect on any value judgment in any balancing exercises and/or has failed to take account of relevant factors and/or took into account irrelevant factors or reached an overall conclusion which was irrational or perverse, then this court should undertake its own assessment of the position under either section 14 or under section 21.
9. In the round, this court does not lightly interfere with the conclusions below but will interfere if it considers that the conclusion of the court below was wrong (see on that particular short sharp principle paragraph 24 of Celinski).
10. The judgment of the District Judge makes clear that he accepted that when the appellant left Poland he was not a fugitive. That must be right since when the appellant left, the judgment of the court activating his suspended sentence had yet to be made. It was not made until November 2007. In a paragraph within the judgment, the court said "there is no evidence before me ... that [the appellant] knew of the breach proceedings". That passage, however, should be looked at in full. It is as follows:

i. "I have carefully considered the evidence given; in particular I have looked carefully at [the circumstances] in which [the requested person] left Poland. It is undoubtedly true that when he came to the UK, most probably in May 2007, he was not only aware that he was in breach of the suspended sentence but that it would likely lead to the Polish authorities looking for him and seeking to activate the sentence. That said, there is no evidence before me that despite that, he in fact knew of the breach proceedings. The summons was returned un-served and so bearing in mind that the [judicial authority] must prove so that I am sure he is a fugitive, whilst I think he most probably is, I do not find him to be to the criminal standard. This is important, because it means that the s14 argument is open to him and in due course I will consider it."

11. Further down into that judgment, this paragraph appears:

i. "This is not a case where it can properly be said that any oppression is caused. No sense of false security has been engendered; you knew you were in breach. It would be obvious to you that the Polish authorities would seek to execute the sentence. There is a delay but by extradition standards it is not lengthy and even though I did not find you to be a fugitive you certainly contributed to that delay."

12. In deciding the issues under section 14 and again under Article 8 adverse to the appellant, the District Judge nonetheless accepted the appellant's evidence regarding his family life, his work and the effect the appellant said extradition would have upon him. The evidence was all one way: that the appellant was and is in work and was and is the breadwinner of the family, for his wife and the two young children.
13. The District Judge, as regards passage of time and section 14, considered the issue of oppression. He said:

i. "Oppression relates to changes in a person's circumstances; it requires more than mere hardship, which is of course almost always present in the event of extradition. I have to consider the length of any delay, the reason for the delay, whether a sense of false security has been engendered and any change of circumstances to you and your family."

14. Then, still as regards section 14, the judge went on to say:

i. "The offences taken together are serious. They would amount in this jurisdiction to domestic assaults. The ABH would almost certainly result in a custodial sentence and it did in Poland."

15. He rejected the section 14 bar on the grounds that extradition was neither unjust nor oppressive as a result of the passage of time.
16. As regards Article 8,the District judge recorded a short balancing exercise. He listed the factors which had to be weighed for and against extradition: the primary interest in the welfare of children; the public interest in the UK honouring its extradition treaties; the Article 8 rights of the appellant, his family and the victim; the gravity of the offending; any delay; whether or not the appellant had led during that period a new and blameless life for himself; his age at the time of conviction; and the fact that the UK should not be seen as a safe haven by those avoiding prosecution or sentences from other EU states. The judge referred to the impact extradition might have emotionally and financially upon those who are left, in particular children, and the strong public interest in ensuring children are brought up appropriately. He accepted that Article 8 was clearly engaged, referred to the fact that the partner and children would undoubtedly suffer financially and emotionally and that could not be underestimated but observed that there was no evidence that the appellant's wife could neither cope nor had any particular difficulties bringing up the children appropriately in the appellant's absence. The judge referred to the fact that there were grandparents nearby who could assist.
17. The key to the court below's decision, that the balancing exercise under section 8 was against the appellant and in favour of the public interest in extradition, can be seen in these passages:

i. "The matters in this warrant when looked at collectively are serious. You were not found to be a fugitive but nonetheless have been living in the UK well aware that you breached the suspended sentence."

ii. "The real and pressing public interest in honouring our international obligations far outweighs circumstances in favour of discharge."

18. At first blush I was minded to find that the District Judge properly carried out the exercise that he had to do under both section 14 and section 21/Article 8 and that this court could not properly interfere. However, on reflection, having heard the submissions on behalf of the appellant by Mr Hawkes, I have come to the view that, in fact, there is demonstrable error in the approach of the District Judge. The judge made a finding that the appellant knew he was in breach of the suspended sentence and it would be obvious to him that the Polish authorities would seek to activate/execute his sentence. Looking at the evidence below, I am not at all clear as to where the evidence was on which that firm conclusion was based. It is certainly correct that the appellant accepted that the apology letter was late. He certainly accepted that he wrote the letter in small letters. It does not follow from that that he knew he was in breach.
19. But, more importantly, I cannot see how the District Judge could come to the conclusion fairly that on the balance of probabilities it would be obvious to the appellant that the Polish authorities would seek to execute the sentence. But, even if I were wrong on that aspect, I consider that the District Judge on the facts of this case wholly underplayed and failed properly to take into account the delay in this case. There is significant delay in this case, not simply from when the sentence was activated, that is November 2007, but between the issuing of the arrest warrant in February 2011 and its circulation to Interpol over 3 years later in October 2014. The District Judge dismisses this as being "by extradition standards it is not lengthy". That is a wholly inappropriate way to approach issues of delay. Everything depends of course on the facts of any particular case. A delay can be significant even though it is only three and a half years. I say "only" because any reasonable person might say that is more than a delay "ordinarily" to be tolerated by extradition standards.
20. In this case, I agree with Mr Hawkes that that delay has had a significant impact on this appellant which seems to be wholly ignored by the District Judge, namely that during the period of that delay the appellant not only entered into his marriage with his partner but established a family life with the birth of the two children. I accept Mr Hawkes' submission that the appellant was entitled, given that delay, to believe that no steps were being taken by the Polish authorities arising out of the fact that his sending of the letter was late and/or by reference to its contents. There has been utterly no information laid before this court by the Polish authorities as to the explanation for that delay.
21. I accept that the District Judge was entitled to regard the offences as serious. I do not go down the road of adopting the approach of Mr Hawkes, that this court should make its own assessment by the standards of this jurisdiction as to whether the offences would be sufficient to commend an immediate custodial sentence. It is wholly unnecessary for this court to do so. I also find it wholly unnecessary for this court to decide the issue under section 14.
22. In my judgment, given I do find that the evidence was just not there for the District Judge to come to the conclusion that "it would be obvious to the appellant that the Polish authorities would seek to execute the sentence" and, secondly, having regard to the significant delay on the facts of this case which enabled the appellant to establish his family life with a sense of security that no steps were being taken against him, and having further regard to the nature of the condition which it is said he failed to comply with, my conclusion is that it would be wholly disproportionate to order extradition in this case. These are offences going back to 2006. We are now in 2015. This appellant has been a blameless character since he arrived in this jurisdiction and, without being disrespectful to the District Judge, to use the expression of the court in Patel (Administrative Law Reports, Queen's Bench Division, 9 February 1994), this is a case in which a District Judge really did only deliver a few "bland lines" with reference to the delay in this case.
23. For all these reasons, I do allow this appeal.