CO/2112/2015 
Neutral Citation Number: [2015] EWHC 3098 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 14 October 2015
 
B e f o r e:
 
LORD JUSTICE BURNETT 

MR JUSTICE HICKINBOTTOM 
 
- - - - - - - - - - - - - - - - - -

Between: 
LYSIAK 
Appellant

v 

DISTRICT COURT TORUN POLAND 
Respondent 
 
- - - - - - - - - - - - - - - - - -

Computer aided transcript of the stenograph notes of WordWave International Ltd 
trading as DTI
8th Floor, 165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400  Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - -

Ms K O'Raghallaigh (instructed by Lansbury Worthington) appeared on behalf of the Appellant
Mr R Evans (instructed by the Crown Prosecution Service) appeared On behalf of the Respondent

- - - - - - - - - - - - - - - - - -

J U D G M E N T
1.	LORD JUSTICE BURNETT:  On 5 May 2015, District Judge Goldspring ordered the appellant's extradition to Poland, pursuant to a conviction European Arrest Warrant issued by the District Court Torun, Poland, on 15 July 2014.  The warrant was certified on 3 December 2014 and the appellant arrested on 3 February 2015.  He has been on bail since then, subject to reporting conditions three times a week and a curfew that applies in the middle of the night.  
2.	This is his appeal, brought with permission, pursuant to section 26 of the Extradition Act 2003.  There are two grounds of appeal: 
3.	First, that the appellant's extradition would violate his rights and those of his immediate family (as guaranteed by Article 8 of the European Convention on Human Rights).  
4.	Secondly, that his extradition would be oppressive for the purposes of section 14 of the 2003 Act.  In respect of that second ground, which was not raised before the District Judge, we gave the appellant leave to amend his grounds.  
5.	Underlying both grounds is the reality that the criminal proceedings against him in Poland took nine years to come to trial and  about a further two and a half years for the conviction to be confirmed in appeal proceedings.  He prays in aid that long delay, for which there has been no suggestion that he was responsible.  
6.	The European Arrest Warrant relates to a conviction which occurred on an unspecified date at the first instance court in 2010.  The appellant's appeal against conviction was dismissed on 14 September 2011, and the judgment became final on 18 November 2012.  The period of offending was between June 2000 and February 2001.  The offence was conspiracy to obtain satellite television dishes fraudulently.  In sterling terms, the value was about £130,000.  The appellant was sentenced to two years' imprisonment.  In 2001, following his arrest, he served 6 months on remand.  It follows that there is a period of 18 months' imprisonment due to be served subject, of course, to the application of appropriate Polish law as to early release.  
7.	The appellant's circumstances (which were accepted by the District Judge) are essentially these. He was 25 years old at the time of the offending.  He took a full part in the criminal proceedings, including attending a large number of preliminary hearings.
8.	In 2008, he left Poland to come to the United Kingdom.  He did so with the permission of the Polish court.  He was represented by Polish lawyers throughout the proceedings.  We have been told that he returned to Poland in 2010 for his trial.  By the time the appellant came to the United Kingdom he had married and had a young son who was nine years old at the time of the extradition hearing and is now ten years old.  Additionally, the appellant and his wife have a daughter who was born in October last year.  
9.	The evidence accepted by the District Judge included that the appellant and his wife have no family in this country.  The significance of that is simply that there would not be anybody readily available to assist the appellant's wife in looking after the children and, more generally, in assisting her should the appellant be extradited to Poland.  The family is financially dependent upon him.  The appellant has worked consistently in the United Kingdom as a painter and decorator.  The appellant's wife has worked in the past as a shop assistant.  However, the reality is that the age of their daughter makes any possibility of her working at present extremely unlikely.
10.	There is no realistic prospect of the appellant's wife and children following him to Poland for the duration of any incarceration he suffers there.  It follows that both emotionally and financially his extradition would cause significant problems.  
11.	Mr Hawkes, who appears on behalf of the appellant this morning, prays in aid the fact that were he to be extradited, the appellant would not be in England for the transition between primary and secondary education that his son will undergo next year.  Furthermore, the age of his daughter is such that it is an important time for parental bonding.
12.	The District Judge concluded that the appellant had been a fugitive since 14 November 2012, when he knew that he should return to Poland to serve his sentence.  So much had been admitted by the appellant in the course of the extradition proceedings, and Mr Hawkes readily accepts that this morning.
13.	He submits that whatever may have been the position after November 2012, the appellant was not a fugitive for any of the period between early 2001 and the confirmation of his conviction on appeal.  The respondent it would not be appropriate to consider the appellant to be a fugitive up until that time,.
14.	Section 14 of the 2003 Act provides: 
"Passage of Time
A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have — 
 (a) committed the extradition offence (where he is accused of its commission), or  
 (b) become unlawfully at large (where he is alleged to have been convicted of it)."
15.	Section 14 was not explicitly argued before the District Judge.  He considered the question of delay in the context of Article 8 of the European Convention of Human Rights.
16.	He directed himself in particular by reference to the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25.  At paragraph 8 of her judgment, Lady Hale identified a series of now well known factors which should weigh in any Article 8 consideration in an extradition case including:
"8(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."
17.	The public interest she was referring to was the: 
"[...] 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 [...]"
Additionally, "the UK should honour its treaty obligations." 
18.	The District Judge dealt with the question of delay in his written ruling in this way: 
"As to delay, no explanation has been provided by either party regarding the need for 3 goes at the trial.  Any explanation proffered by either party is speculation and I will ignore.  What we do know is that the final judgment [is] given on 14 November 2012.  It therefore follows that the EAW was issued a short time after and there is therefore no relevant delay for the purposes of looking at culpability.  However, I accept that the age of both the offences and the requested person at the time is relevant to the Article 8 challenge."
19.	Later in his written determination at paragraph 33, he added:  
"Merely because it is unexplained does not make delay culpable: where delay is not culpable it weighs only slightly in the requested person's favour in the proportionality assessment."
20.	Having then returned to the point that the appellant was a fugitive at the end of the period, the District Judge added:
"  There cannot sensibly be said to be any culpable delay on the part of the Issuing Judicial Authority, such delay as there is, is insufficient to weigh in his favour in any balancing act [...]" 
21.	It appears that the District Judge was focusing closely on culpability for the delay and eventually on the period which followed the dismissal of the appellant's appeal against conviction and the conviction becoming final.
22.	Gomes v Trinidad and Tobago [2009] UKHL 21 [2009] 1 WLR 1038 is authority for the proposition that for the purposes of section 14, a requested person may not rely on any delay which coincides with his being a fugitive from justice.  The House of Lords rejected an argument that there should be an enquiry into whether delay during that period was the fault of the requesting State.  
23.	However, founding itself on the well known dicta of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] HL 1 WLR 779, the House of Lords confirmed that a requested person may rely upon delay which has occurred in the prosecution process, other than when he is a fugitive or he is otherwise himself responsible for the delay.
24.	Mr Hawkes's submission is that had section 14 been raised before the District Judge, and the decisions of the House of Lords in both Kakis(supra) and Gomes(supra) brought to his attention, he would have concluded that he should take account of the delay up until November 2012.  Then, having considered the circumstances of the appellant and his family, the proper conclusion would be that his extradition would be oppressive.
25.	I remind myself that for these purposes, 'oppressive' is:
"Directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration."
26.	 (See Lord Diplock in Kakis at 782 H).  That said, oppression is to be contrasted with hardship, which is not enough for the purposes of section 14, (see Lord Brown at Gomes, at paragraph 31).
27.	Mr Hawkes further submits that the District Judge was in error in effectively discounting this period of delay for the purposes of the Article 8 balancing exercise.  Underpinning his submission on delay in the conduct of the criminal proceedings in Poland is the proposition that the delay amounts to a violation of Article 6 of the Convention on account of the unreasonable length of time those proceedings took.  
28.	Mr Hawkes has shown us the very recent pilot judgment of the fourth section of the Strasbourg Court in Rutkowski and Others v Poland application no 72287/10, given on 7 July 2015.  That case dealt with the specific facts of three applications brought from Poland but it also listed 591 other outstanding applications all concerned with delay in judicial proceedings.
29.	He submits, and I agree, that there is at least a prima facie argument that the delay in this case would amount to a violation of Article 6.  That said, an historic breach of Article 6 is not itself a bar to extradition as Mr Hawkes readily accepts.  Nonetheless, he submits that the long delay in likely violation of Article 6 should fall into account when considering whether the extradition of this appellant would be disproportionate in Article 8 terms.
30.	I accept that the delay of almost 12 years is material for considering whether the extradition of this appellant would be oppressive for the purposes of section 14 of the 2003 Act.  I also accept that the same delay is relevant for the purposes of Article 8, and should have been taken into account by the District Judge as a more potent factor than the extracts from his decision which I have quoted suggests he did.
31.	It does not seem to me to matter whether the delay was or was not in fact a breach of Article 6 of the convention.  The reality in this case is that there was very significant delay of more than nine years before the trial at first instance occurred and then a further period of more than two years until the appeals process was completed.  The important feature is that none of that delay can be laid at the door of the appellant.  Furthermore, there is nothing about the circumstances of the proceedings as disclosed in the papers before us which suggests that they were especially complicated.
32.	In my judgment, the District Judge misdirected himself as to the relevance of that long delay. In those circumstances, it follows that it is for this court to undertake a fresh assessment of whether the appellant's extradition would be disproportionate for the purposes of Article 8 of the convention and to consider, if necessary, whether the extradition would be oppressive for the purposes of section 14.  The same factual issues are engaged under either approach, subject to discounting the period after the appeals process finished for section 14.  
33.	Quite apart from that last point, the threshold for disproportionality is lower than that for oppression.  It follows that it is convenient to consider this matter with an eye to Article 8 first.  For Article 8 purposes, the delay following the dismissal of the appeal is not entirely irrelevant as it would be for the purposes of oppression.
34.	In the balance in favour of extradition is the undoubted fact that the appellant was convicted of a serious offence which related to a substantial fraud.  He received a two year prison sentence.  There is a strong public interest in favour of extradition for the reasons explained by Lady Hale, to which I have already referred.  
35.	Mr Evans, who appears this morning for the respondent to this appeal, readily accepts that were this an accusation warrant it may be disproportionate all these years later to return the appellant to Poland, but he submits that the position with a conviction warrant is different. The appellant was at all times both aware of and engaged in the criminal process in Poland.  All of his actions, that is to say coming to the United Kingdom, having first married and then started a family, were carried out in full knowledge that he may have to return to Poland if he were convicted and sentenced to a term of imprisonment.  For that reason Mr Evans submits that his extradition would not be disproportionate, despite his personal circumstances.
36.	On the other side of the balance is the undoubted fact that the long delay may well qualify and weaken the various public interests in favour of extradition, as Lady Hale explained in HH(supra).  
37.	Additionally, there are the particular circumstances of the appellant and his family.  As I have indicated, he committed these offences when he was 25 years old.  He was 38 by the time he became, for section 14 purposes at least, a fugitive, and is now 41 years old.  
38.	To my mind it is significant that the appellant left Poland in 2008 with permission.  Mr Hawkes prays in aid in particular the long period between the commission of the offence and the culmination of the criminal proceedings, during which the appellant's life has been transformed.  He was, at the time of the offending, a relatively young man, unmarried and without a family.  
39.	The position is now entirely different.  He has been in full time employment since he arrived in the United Kingdom. He has committed no further offences in either Poland or the United Kingdom.  It is not unreasonable, it might be thought, to describe the appellant as being a different person from the one he was when he offended.
40.	Undoubtedly, his family is entirely dependent upon him and would, as a matter of both the evidence directly before the District Judge, and strong inference, be placed in a very difficult position for the duration any sentence he might have to serve in Poland.  The appellant's wife's position financially would be parlous.  The reality, again, as accepted by the District Judge, was that she would have to live on benefits for the duration of the appellant's absence in Poland.  
41.	It is not realistic to expect them to follow to him to Poland. I note that the evidence before the District Judge was that his wife has no immediate family left in Poland.  The elder child has been at school in the United Kingdom since he was 5.  The evidence suggest that English is now his first language and, as I have already indicated, he is on the cusp of transferring from primary to secondary education.  
42.	Mr Hawkes points to the fact that for seven years whilst in Poland the appellant was on conditional bail which required him to report twice a week to the police.  I have recorded the position since February 2015, when he has been on bail in this country.  Returning briefly to the nature of this offence, serious though it is, it is a long way from the top end.  The prison sentence imposed (of which six months have been served) was relatively short.  The offending was economic and not an offence of violence.
43.	An assessment for proportionality purposes under Article 8 in the light of the clear guidance given by the House of Lords in HH(supra) requires the court to step back and undertake an evaluation, having well in mind the features that weigh on one side as against the other.
44.	In my judgment, enumerating all the factors that I have sought to summarise, I conclude that it would be disproportionate in Article 8 terms to extradite this appellant to Poland. The delay has been very long and the appellant’s circumstances have changed altogether since he offended.  He has served some time.  The impact of extradition on his family given those circumstances weighs relatively heavily. 
45.	In those circumstances, if my Lord agrees, I would allow this appeal and discharge the appellant.  
46.	MR JUSTICE HICKINBOTTOM:  I agree.