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 from the making of an extradition order made on 12 March 2015 at the Westminster Magistrates' Court ordering the appellant's extradition to Poland on an accusation European Arrest Warrant issued out of the Regional Court in Slupsk, Poland on 6 June 2008 and certified by the NCA on 25 July 2014.
2. The appellant's extradition is sought to face one allegation of theft alleged to have been committed from 2000 to 2002 of shoes to the value of 767,121 PLN, some £135,000. The circumstances of the offence are set out in box E of the indictment. The circumstances are these: that the appellant within the period from 2000 to 2002 acting with malice aforethought to gain material profit, jointly and in concert with a named individual while being a sales agent of a particular identified company or business (AKLA Shoe Factory joint stock company in Slupsk) misappropriated the shoes to that total value which I have identified and acted for a damage of that factory in that way.
3. The material facts as regards the issue of the warrant and the date of the offence and so forth are set out in the warrant at box F as follows:
4. On 29 September 2004, the District Court in Slupsk received an indictment against the appellant and one other.
5. The appellant was informed of his rights and obligations including the duty to appear in court when summoned and to provide a mailing address.
6. The appellant collected the indictment and appeared for the "first main trial" but later stopped collecting correspondence sent to him and failed to appear for subsequent "trials".
7. Following the decision to issue an arrest warrant on 20 February 2006, the District Court is Slupsk ordered a search for the appellant with a wanted notice of 4 December 2006.
8. On 12 July 2007 the District Court in Slupsk decided that it was not competent to hear the matter so referred the case to the Regional Court in Slupsk.
9. On 8 December 2007 the Regional Court in Slupsk found the case was not in its "material and geographical" jurisdiction and referred it to the District Court.
10. The case was then registered at the District Court under a new number II K 909/07.
11. Searches for the appellant failed and he was thought to be in Germany.
12. In fact, it appears that the appellant, who is 44 years of age, left Poland in 2005, went first to Germany and then came to the United Kingdom in 2007. In 2008 he established his current relationship with his Polish partner in the United Kingdom.
13. As I have already indicated, the European Arrest Warrant in this case was first issued in June 2008 but the appellant was not arrested until 25 September 2014, albeit the warrant came to the attention of the authorities in this country in 2010. The passage of time, which can be properly described as delay, between the issue of the EAW and the arrest of the appellant in 2014 is explained by a witness statement of the NCA officer Paul Young. This was before the judge below. He indicates that he has been asked to comment on the delay between the issue of the warrant by Poland on 6 June 2008 and the certification on 25 July 2014. He said that from their records he could state that on 12 July 2010 the Polish authorities circulated a notification to Interpol giving the information that an EAW was issued in respect of the appellant and that initial checks showed there was a potential link to the United Kingdom.
14. What then happened was that on 14 July 2010 the EAW was reviewed and on 13 September 2010 a request was made by the English authorities, the NCA, to the Polish court for amendments to be made to the EAW as there were insufficient details provided in section E. There is then set out a series of chasers being sent to the Polish court for the amendments on 7 October 2010, 11 January 2011, 16 January 2013, 8 May 2013, 10 July 2013, 12 March 2014, culminating with a seventh chaser on 8 July 2014 when finally, in effect some 4 years later, on 25 July 2014 the amended warrant was received from Poland, certified the same day and the warrant was forwarded to the Bedfordshire police. This resulted in the arrest of the appellant in September 2014 and the hearing before the Westminster magistrates culminating in that extradition order.
15. The sole ground of appeal brought is that the District Judge wrongly answered the question raised under section 21 of the Extradition Act as to whether or not extradition would be compatible or incompatible with the Convention rights of the appellant and his family. The particular Convention right being relied on is Article 8.
16. As far as the approach of this court on an appeal in respect of such a matter, there is now the authoritative decision of the Divisional Court, a constitution including the Lord Chief Justice, in Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin). The material paragraphs are paragraphs 20 through to paragraph 24. At paragraph 24, the court says this:
17. "The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."
18. The material facts, apart from those which I have already identified, are these. Since 2008 the appellant has established in this country his family life with his partner. She has two children, therefore his step-children, one [K] aged 12 and [J] aged 14. As the District Judge found at section 1 of his decision:
19. "iv. [J] has Asperger's Syndrome. If the requested person were not available, looking after him would become more difficult. Joanna would become the sole carer. [J] is in a mainstream school and has done well in maths but requires a lot of attention. Joanna does not speak a lot of English.
20. v. Joanna has an undiagnosed medical condition.
21. vi. The requested person has no convictions in this country.
22. vii. He had an accident in 2011 and an operation inserting screws and bars into his spine in 2012 and has been unable to work since 2012 ... "
23. The oral evidence before the court below was then set out in section 2. The District Judge first sets out an account (ultimately rejected by the judge) that the appellant was not aware that he had been accused of anything when he left the country, his case being that he had only been to the Polish court as a witness. The District Judge found in no uncertain terms that he was a fugitive. But at paragraph (x) of that section this is set out:
24. "x. He needs to take [J] to school. He has to help him with everyday life e.g. if he is supposed to go to shop to buy milk even though they always buy milk with a green cap, he would call from the shop as to if he can buy a blue one or if he needs to go to another shop. He said it was difficult to explain how much attention you have to give to him. It's a lighter form of autism. Because of his age, he should be able to travel to school on his own but they are worried about him. His mind can drift away.
25. xi. They have no family or friends. He was here on his own. Partner does have family here. Her family won't help her. She has two brothers. They don't live nearby. 20-25 minutes away in the car. He doesn't see them socially , last time was in 2009 ... "
26. The proof of evidence of the partner is summarised at section 3:
27. "i. She has been in a relationship since 2008 and currently resides with the requested person. She has two children from a previous relationship, [J] aged 14 and [K] aged 12.
28. [J] has Asperger's syndrome and requires intensive supervision.
29. Jacek, the requested person is essential to the smooth running of the house as he is a very patient and calm person.
30. The children had not been told of the proceedings. It would destroy their world.
31. They have no contact with their biological father. The requested person provided a stable home.
32. She did not speak or understand English very well.
33. She had concerns on her own health and was awaiting an MRI scan."
34. In oral evidence this is recorded, among other matters:
35. "i. The boys are not at school today. Half-term at moment. The neighbour downstairs are popping in to look after them, after every half hour. She knows the neighbour, they'd lived in the same block for last 3 years.
36. They don't really go away. She was self-employed. She was a seamstress & worked from home ...
37. She has brothers but they don't really keep in contact.
38. [J] has Asberger's. The school is aware but treat him like any other student. They try to treat him like any other child. She could leave him at home alone for a couple of hours. She would allow him to go on the bus with his brother. They go to the same school.
39. She had not thought about him going to the bus stop with his brother. His needs are greater than any other child. They try not to restrict him, he has some issues with movement co-ordination, so she has to stand behind him. He tries hard and believes in things. Because of his syndrome, he will have spent 4 years with just her. Then, when dad came in, he became very attached to him. She had to admit, at his age, his father more important than his mother. She did the cooking, but they look up to their father."
40. I should add that the witness statement of the partner, which is before me, as it was before the court below, contains this particular paragraph:
41. "Given the additional issues that arise from [J]'s condition Jacek is essential to the smooth running of the family home. He is very patient and a calm person and has a very good connection with [J] and [K]. He is particularly aware of [J]'s difficulties and he has enabled my children to follow a pattern of behaviour that is helpful to everyone in the home.
42. We have not told the children about Jacek's proceedings. I cannot imagine how I would explain to them if he was suddenly to go. It would destroy their world as he is the person that they look up to and are trying to follow.
43. They do not have contact with their biological father and to have a second father removed from their life would create difficulties for them. It is due to Jacek that my children are growing up in a stable family home that they always dreamt of. He provides the father figure for my children which is something that they have missed out on since their father had never been interested in their lives.
44. Jacek supports me in every possible way in particular as I do not speak and understand English very well. Jacek sorts out all the official business such as school meetings and homework.
45. If he were gone the family would be put under undue physical, financial and mental suffering."
46. Mr Jones, on behalf of the appellant, invites me to find that this court should re-value the necessary balancing exercises for the purposes of the Article 8 challenge; that is to say the balance between the constant and weighty public interest in extradition as against the impact of any extradition on the Article 8 rights of the appellant and those of his family, so as to determine the question whether extradition would be disproportionate. Because, says Mr Jones, when one looks at the reasoning of the District Judge as a whole, he has approached that exercise on a wholly wrong basis.
47. Ms Iveson, on behalf of the respondent, says that this is not a fair conclusion.
48. I am persuaded by Mr Jones that this is exactly what happened in this case. I say this because of the references under the heading "The Law" by the District Judge when considering the Article 8 argument. He sets out the decision in Norris v Government of United States of America [2010] UKSC 9 but emphasises at page 8 that a conclusion to be drawn from Norris is that:
49. "The threshold in an Article 8 challenge is set very high and there would have to be 'striking and unusual facts' for such a challenge to succeed."
50. It is true that the District Judge did accept later authority as meaning that there is no exceptionality test to be applied and every case is to be considered on its facts. It is also true the District Judge set out the well-known seven propositions in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 of Lady Hale, summarising that which can be extracted from Norris, including at subparagraph (5)onwards:
51. "(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.
52. (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.
53. (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."
54. Although the District Judge sets those matters out, I have no doubt that he did wrongly in this case carry out a search for some striking or unusual facts which would take the case out of the run of the mill so as to justify a conclusion of disproportionality. I am strengthened in that view by the fact that although the judge in his section 8 argument considerations (which is to be found at page 11) refers to the impact which extradition would have on the family, he says this in particular by reference to the condition of [J]:
55. "Such conditions vary and I am not at all clear that [J]'s condition is at the serious end of the spectrum. No doubt, over the last 7 years, the requested person has built relationships with all within the family, especially [J], but the disruption and distress of separation is a common but sad feature of many of these cases. I do, of course, bear in mind the circumstances of this particular family."
56. What one does not find is this: although there is a reference to the impact which the extradition may have on the family and although earlier in the judgment there has been a rehearsal of the evidence going to that, there is nowhere in the discussion which actually identifies in terms what that impact is likely to be. It is not enough to say: I have taken the impact into account. What is needed is an analysis of what that impact will be. In the following passage the District Judge purports to set out his reasons when carrying out the balancing exercise leading to his conclusion that there is no disproportionate interference here:
57. "I have found that the RP is a fugitive. Such a finding is not fatal to an Article 8 argument but does not help.
58. The RP has been in the UK since 2007 and been with his partner since 2008. He has assumed the role of father since then and I accept that there will be impact on them if an order for extradition made. They have no contact with their biological father.
59. I have considered the impact to all concerned if an order were made and in particular on [J]. I have considered all the papers including the Report from Dr Meher Pocha in relation to [J]. The Dr concludes that he shows 'some features of both ADHD and Asperger Syndrome. It is possible he has some perceptual difficulties ... there might be an emotional element of missing Poland'.
60. Such conditions vary and I am not at all clear that [J]'s condition is at the serious end of the spectrum. No doubt, over the last 7 years, the RP has built relationships with all within the family, especially [J], but the disruption and distress of separation is a common but sad feature of many of these cases. I do, of course, bear in mind the circumstances of this particular family.
61. The RP is currently on sick benefit being unable to work and accepted that between June 2013 - Jan 2015, he had not contributed financially. I note that his partner works from home and has a driving licence, albeit she is not currently driving due to her medical issues. She awaits further diagnosis and full details were not known to this court.
62. I have considered the age of the allegation. The indictment in this case was issued in September 2004, the EAW issued in June 2008. The EAW was reviewed by the NCA on 14 July 2010 and amendments were requested as 'there was insufficient detail in box E'. Chaser letters were then sent by the NCA to the Polish authorities and this introduced some delay. The EAW was not certified until 25 July 2014.
63. I bear in mind the fact of the age of the allegation, in that it dates back to 2002. That said, it cannot be described at all trivial, indeed, the allegation alleges a theft value £135,000 in a position of trust. This would inevitably attract a custodial sentence were there a conviction here.
64. As stated in Kakis, hardship, a comparatively commonplace consequence of an order for extradition, is not enough. The right to private and family life is not an absolute right under the ECHR and the court must carry out a balancing exercise between the impact of extradition on the Article 8 rights of the RP and the compelling public interest in extradition.
65. That said, the RP is wanted so as to stand trial.
66. Interference with family and private rights, however, have to be balanced with the desire that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences and that the UK should honour its treaty obligations to other countries.
67. On the facts of this case, I am satisfied that extradition would amount to a disproportionate interference with the RP's or their children's rights."
68. I have been persuaded by Mr Jones that not only has there not been a proper analysis of the impact on the children of the extradition but there has not been any proper analysis of the impact of the delay in this case since the EAW was issued in June 2008, that is the delay in the amendments requested to the EAW, which were not received until July 2014. The District Judge, in the passage I have just set out in full, bears in mind the fact of the age of the allegation and that it dates back to 2002. He also sets out the fact that the indictment was issued in 2004 and then the EAW in June 2008 and the fact that there were chasers sent on the review in July 2010 which did not produce anything until July 2014. But he does not at any time purport to analyse what the impact of that delay is on the balancing exercise. All he does at the top of page 12 is say:
69. "As stated in Kakis, hardship, a comparatively commonplace consequence of an order for extradition, is not enough."
70. I agree with Mr Jones that the District Judge while setting out those well-known principles of Lady Hale in paragraph 8 of the judgment in HH failed to take on board what she said at paragraph 32:
71. "The second main criticism of the approach in later cases is that the courts have not been examining carefully the nature and extent of the interference in family life. In focussing on 'some quite exceptionally compelling feature' (para 56 in Norris), they have fallen into the trap identified by Lord Mance, tending 'to divert attention from consideration of the potential impact of extradition on the particular persons involved . . . towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill' (para 109). Some particularly grave consequences are not out of the run of the mill at all. Once again, the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued (see also Lord Wilson, at para 152). Exceptionality is a prediction, just as it was in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, and not a test. We are all agreed upon that."
72. I have come to the conclusion that the District Judge failed properly to address the impact of extradition upon the children in this case having regard in particular to the delay between July 2010 and July 2014 in the issuing of a properly amended EAW when carrying out the balancing exercise. I carry out that exercise. I have no doubt when considering these matters that the impact upon the two children here of this extradition will be particularly grave not simply by reference to the medical condition of [J], although that is important, but the fact that, in my judgment, the evidence I have rehearsed is all one way: that the appellant has a particularly significant role in their life and on the evidence their lives would be "destroyed" if he as their sole father figure were removed. They are at an age, on the evidence, that as far as [J] is concerned he is more important than his mother. But as far as both of them are concerned, they look up to him and he has that vital role. The biological father plays no role and the impact of removal is also particularly significant by reference to the appellant being the sole English speaker.
73. Of course, this accusation warrant is in reference to a serious offence and the seriousness of the offence obviously is a significant factor pointing towards proportionality of extradition. But in this particular case (and I stress on the facts of this particular case) I find that the delay in the issuing of the amended EAW significantly diminishes that as a factor in this case. I accept the submission of Mr Jones that the delay has had a particular significance in this case because it is during the period of the delay since 2008 that the relationship of the appellant has been developed.
74. I have to say, the District Judge, I am afraid, seems to take the view that the seriousness of the offence, in effect, trumps the impact of delay and does not take on board properly, in my judgment, the significance of that delay.
75. For all these reasons I would allow this appeal. In my judgment, the only conclusion to which one can properly come on this evidence is that extradition on the facts (I emphasise this is a fact-sensitive issue) would be disproportionate and I allow this appeal. I formally order the discharge.