England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal under s.26 of the Extradition Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 October 2015

Mr Justice Supperstone :

1. This is an appeal against the decision of District Judge Grant ("the DJ") at the Westminster Magistrates' Court made on 22 May 2015 ordering the Appellant's extradition to Poland pursuant to a European Arrest Warrant ("EAW") issued by the Respondent on 13 November 2014 and certified by the National Crime Agency on 26 November 2014. Poland is a designated Category 1 territory and therefore Part 1 of the Extradition Act 2003 ("the 2003 Act") applies to this case.
2. The EAW is based on the Appellant's conviction by the District Court in Tarnow ("the District Court") on 28 December 2010 for offences of fraud. Between 24 April and 13 May 2010 on seven occasions he obtained fuel by presenting counterfeit bank transfer receipts and by misleading the vendor as to his intention to pay. The total loss caused was 59,986 Zlotys (equivalent at today's rates to £10,285.20). A sentence of 1 year and 2 months' imprisonment imposed was conditionally suspended. On 10 June 2013 it was activated by a decision of the District Court because the Appellant had failed to pay compensation to the victim.
3. Before the DJ the sole question in dispute was whether the extradition of the Appellant would infringe the Article 8 rights of the Appellant and his wife and his 5-year-old daughter. Anna, his wife, has multiple sclerosis. She is being treated by Dr Omar Malik, a Consultant Neurologist at Charing Cross Hospital. She is receiving a drug called Gilenya which Dr Malik considers should arrest the disease but will not have any impact on improvement.
4. At the start of the hearing of the appeal before Nicol J on 16 July 2015 the judge raised with Mr Hawkes, who appears for the Appellant, whether the assumption which appears to have been made before the DJ that if Mrs Budzik chose, she would be able to remain in the UK if her husband was extradited was correct. It seemed to Nicol J to be at least open to question as to whether, if the Appellant was extradited, she would be entitled to remain in the UK when she herself was not a worker and the person on whom she was a dependant was no longer present in the UK.
5. The judge observed (see [2015] EWHC 2453 (Admin) at para 6):

"A subsidiary issue, but related, is what the position would be if Anna was not entitled to live in the United Kingdom but required to return to Poland. Would she then be able to receive Gilenya? This is not a matter on which there was evidence before the District Judge. It may be that Gilenya is available but only on a private basis in Poland. It may be that there would then be an issue as to whether she would be able to afford it or whether, in practical terms, it would not be available then to her."

6. The judge noted that these are matters that were not the subject of evidence or submissions before the DJ. He considered that if the Appellant wished, he ought at least to have the opportunity to amend the grounds of appeal to seek to raise these points on the appeal (para 7), and/or to adduce further evidence (para 8).
7. Mr Hawkes now seeks to amend the grounds of appeal to reflect the additional factor of the effect the Appellant's extradition would have on his wife's right of residence and access to essential medical treatment. The Appellant also applies to adduce fresh evidence, in the form of a further witness statement from Mrs Budzik. Before me Ms Farrant, for the Respondent, did not oppose these applications, nor the application for an extension of time that was necessitated for the reasons set out in the application to amend grounds of appeal and adduce fresh evidence. Accordingly I grant permission to extend time and to amend the grounds of appeal and to adduce the further evidence that has been filed.
8. In his further written submissions dated 27 August 2015 Mr Hawkes considers the Free Movement of Citizens Directive 2004. He accepts that Mrs Budzik would retain a right of residence in the absence of her husband since her daughter is aged 5 and attends primary school. However he submits she is no longer self-reliant (see para 3 of her first witness statement) and will not be able to care either for herself or her daughter if her husband is extradited (see para 5 of her second witness statement); accordingly her daughter would be taken into social services care; she would then no longer have actual custody of the child and would thereby lose her right of residence, and by extension her right to healthcare free of charge through the National Health Service.
9. Since she has expressly ruled out permitting her daughter to be taken into care and would move with her to Poland in those circumstances, Mr Hawkes submits that it is clear the effect of extradition would be the loss of essential treatment for Mrs Budzik's disease, together with essential benefits, such as housing benefit and any disability payments.
10. In further written submissions dated 2 October 2015 Mr Hawkes refers to the evidence contained in the document "European Multiple Sclerosis Platform, MS Barometer 2013" which suggests that access to Gilenya which was approved as a MS treatment drug in Poland in December 2012 is restricted and that if Mrs Budzik were to return to Poland she would be unlikely to receive it. The cost of Gilenya in the UK is approximately £20,000 per patient per annum; the cost in Poland is likely to be similar. Plainly her circumstances are such that she will not be in a position to fund her own treatment. Gilenya does not reverse the disabling nature of the disease; rather it arrests or at best, slows down the decline of MS sufferers; therefore, without it, Mrs Budzik is highly likely, irreversibly, to become even more disabled.
11. Ms Farrant submits that there is no evidence before the court to suggest that the local authority would seek to take the Appellant's daughter into care in the event of his extradition. That being so Mrs Budzik will be entitled to remain in the UK and will continue to receive Gilenya. Accordingly the subsidiary issue raised by Nicol J (see para 5 above) does not arise for consideration.
12. Mr Hawkes accepts that local authorities have a duty not to abandon vulnerable persons, but submits that it is extremely unlikely that the care Mrs Budzik needs for herself and her daughter will be made available, and therefore the likelihood is that the Appellant's daughter will be placed in foster care.
13. I do not accept this submission. There is no basis for it, in my view, on the evidence before the court. Further, I consider that on the evidence the DJ was entitled to find that the Appellant "is not a sole carer for his daughter and the family's case is known to the local authority". He noted that there was no information about what further resources the local authority will be prepared to provide in the even of the Appellant's extradition. That remains the position. However where "the family circumstances are known to the local authority", as the DJ found, there is no basis, in my view, absent evidence, for the inference Mr Hawkes invites me to draw that the local authority will deal with the situation that will arise after the Apepllant's extradition by removing his daughter from her mother.
14. Mr Hawkes further submits that the DJ erred in finding that the Appellant became a fugitive when he left Poland within two months of the original sentence being imposed. In support of this submission Mr Hawkes relies on the decision in Pinto v Portugal [2014] EWHC 1243 (Admin). It is only, he submits, when the Appellant knows that the suspended sentence that was imposed is activated that he can be considered a fugitive.
15. I reject this submission. It is not settled law that a person can only become a fugitive when his suspended sentence is activated. In Salbut v Circuit Court in Gliwice [2014] EWHC 4275 (Admin) Ouseley J held (at para 8) that the phrase "unlawfully at large" was capable of applying from the moment the conditions of such a sentence are breached. In the present case the Appellant admitted in his evidence that he was aware when he left Poland that he had to pay compensation. He did not do so. I accept Ms Farrant's submission that he therefore can properly be said to have become unlawfully at large as soon as he failed to meet the payments. The DJ was entitled, in my view, to find that he was a fugitive from the time that he left Poland and failed to comply with the requirements under his suspended sentence. In any event, as Ouseley J observed when granting permission to appeal: whether or not the Appellant is a fugitive seems unlikely to matter since he knew that he was not complying with the requirements of suspension and left Poland knowing that he would be imprisoned if he stayed.
16. After conducting the balancing exercise the DJ acknowledged that this was " a very difficult case". Mr Hawkes submits that the DJ failed to take into account the full extent of Mrs Budzik's illness, the precariousness of her current state and the devastating impact upon her and their 5-year-old daughter of the Appellant's extradition. The Appellant had committed no offences before the index offences and he has not committed any since. The index offences were committed at a very difficult financial and emotional stage in his family's life. Since then he has established himself as a law-abiding person in the face of the considerable adversity of his wife's serious illness. Mr Hawkes submits that for an offence which did not warrant an immediate custodial sentence in the requesting state, and which would be unlikely to attract a more severe penalty in this jurisdiction, the warrant ought to have been discharged.
17. In reaching his conclusion the DJ acknowledged that for this family the effect of an extradition order would be drastic. He stated that he had "some considerable sympathy with the requested person and his immediate family" and that "there is no doubt that the effect of an extradition order will be a heavy one". Nevertheless having referred himself to the relevant case law, including the recent case of Celinski v Poland [2015] EWHC 1274 (Admin), as to the approach that the court should take where Article 8 ECHR is engaged in extradition proceedings and having conducted the balancing exercise that is required, the DJ concluded that extradition was proportionate. I am not persuaded that the DJ made the wrong decision.
18. For the reasons I have given this appeal is dismissed.