England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/11/2015

Mr Justice Irwin :

1. In this case I must decide two statutory appeals for extradition of the Appellant, pursuant to Section 26 of the Extradition Act 2003. These appeals are from DJ Bayne on 7 January 2015 and the decision of DJ Goldspring on 17 July 2015. The procedural history is a little complex.
2. The first European arrest warrant ["EAW 1"] was issued by the regional court in Warsaw, Poland on 4 March 2011. This is a conviction warrant. The relevant offence is that on 28 June 2007 the Appellant:

"… infringed non-intentionally the safety regulations in road traffic … in such a way that … he did not take up due precautions … lost control over the vehicle he was driving and then he hit a fence, a gate and an entrance gate causing unintentionally body injuries of the passenger – such as a multi organ injury with the brake (sic) of right limb and L1 vertebra."

The warrant goes on to recite that the Appellant was convicted and sentenced to one year imprisonment with a conditional suspension for a probation period of three years. On 11 August 2009 he was ordered to serve the sentence. On the Appellant's own account, this was because he was stopped on suspicion of drink driving.

3. Because of the death of his father and his mother's poor health, the Appellant applied to the Polish court to defer the beginning of the custodial sentence for a period of "five or six months". After this deferment he acknowledges that in February 2010 he was ordered by the authorities to report to prison, but he failed to do so. He had already travelled to the United Kingdom and in his witness statement accepts that he was a fugitive from justice. On his account, after arriving in the United Kingdom he sent a further letter to the court in Poland asking for a further deferral, but got no reply.
4. The warrant recites that a "wanted notice" was issued by the district court on 21 January 2011 ordering the detention of the Appellant. He was, of course, already in Britain. On 4 March 2011, Judge Radominska signed the EAW. The Appellant was arrested in relation to EAW1 on 15 September 2014 at Birmingham airport. As indicated, DJ Bayne reached her decision on 7 January 2015. The Appellant then sought an appeal. This was an appeal as of right, the requirement for permission not yet having been introduced. The only issue raised is the submission that DJ Bayne was wrong to reject the Appellant's arguments that extradition was disproportionate and an infringement of his right to private and family life under Article 8 of the European Convention of Human Rights.
5. The appeal from DJ Bayne was listed in the Administrative Court on 4 March 2015. However, on the day before, the Appellant was arrested in connection with the second European Arrest Warrant ["EAW2"]. Sensibly, this development was brought to the attention of Sir Stephen Silber, sitting as a Judge of the High Court. He ordered that the appeal in relation to EAW1 was to be adjourned until after the determination of proceedings at the Westminster Magistrates' Court on the second warrant, further ordering that if there was an appeal from such a second decision, the appeals should be heard together.
6. The second warrant (EAW2) is an accusation warrant issued by the regional court in Warsaw on 21 April 2011. The warrant relates to two offences. Firstly, the Appellant is accused that on 16 April 2007 he committed the burglary of a pharmacy in Warsaw by breaking open the entrance door and breaking into three cash registers, causing considering losses and proceeding to the theft on 300 Zloty. In addition he is accused of purchasing a Samsung Syne Master 710 monitor as stolen property. In the body of the warrant there are recited "other important circumstances". The key points are that the Appellant "did not appear at the court duly summoned and he was not staying at the given residence address". A national warrant was issued for his arrest and detention on 1 February 2011. Additional information was provided by email of April 2015 from Judge Soltys of the district court of Warsaw Zoliborz. She gives some background about the delay in the case in the following terms:

"It is true that, the length of time that has elapsed since the date of the alleged offence is quite big. Mateusz Zakrzewski had alleged offence in 2007 year. The problem is that, when the case was send (sic) to district court of Warsaw Zoliborz it was 2010. Before this date, the case was in two different courts, which decided that the case should not be judged in their district. District court of Warsaw Zoliborz on 1 February 2011 decided to arrest Mateusz Zakrzewski because he did not come to court to hearing him several times. The Polish police informed court, that he left Poland.

…

The EAW was issued in the date 21 of April 2011 and between the period of passing a decision connected with arresting Mateusz Zakrzewski and the EAW was only one year, during this time the police was looking for the defendant in Poland. The police checked the place where Mateusz Zakrzewski lived then they started to look for him in whole Poland.

During this time Mateusz Zakrzewski did not contact with court. He was instructed during the investigation that he has obligation to inform police, prosecutor and than court of any changing of the address and place of living."

7. EAW2 having been issued on 21 April 2011, it was certified by the NCA on 22 September 2014. The Appellant was arrested on 3 March 2015 (as set out above). He was released on conditional bail and the full hearing of his extradition before the district judge took place on 22 June 2015. The Appellant was legally represented and had the benefit of an interpreter before DJ Goldspring. Two issues only were raised before the district judge, those being proportionality and the Article 8 ECHR pursuant to Section 21 of the Extradition Act 2003 and proportionality and human rights pursuant to Section 21A of the Act. The district judge decided in favour of extradition and the Appellant sought to appeal.
8. By now the Appellant required permission to appeal, since by then the relevant provisions for the Criminal Procedure Rules Part 17 were in force.
9. The Appellant's application for permission was filed on 23 July 2015. Despite the Order of Sir Stephen Silber, it appears that the Administrative Court did not effectively link the two cases. The EAW2 case came before Collins J on paper on 4 September 2015. There is no indication that he was aware of the other case. He gave permission to appeal, citing the following reasons:

"A combination of the delay of nearly 4 years before the requesting court issued a warrant and a non-domestic burglary (albeit of a pharmacy, but cash not drugs were taken) persuade me that a judge might consider, particularly having regard to the Article 8 circumstances, that the DJ's decision was wrong."

10. The Appellant's appeal in respect of EAW2 made no reference whatsoever to the existence of EAW1, the decision by DJ Bayne, or the pending and adjourned appeal in the high court.
11. Confirmation that the two cases had not been effectively linked arose: each case was separately listed before the High Court, but in difference courts, on 21 October 2015. The Appellant's counsel, Mr Simon Gledhill, very properly made the court aware of the link between the two cases when he realised what had happened. The appeal in respect of EAW1 was then transferred to join the other appeal before me. I should point out that Mr Gledhill had not settled the notice of appeal in respect of EAW2.

Procedural Matters

12. Before looking at the substance of the appeals, it is necessary to underline one or two procedural points for the attention of the profession. If there is more than one set of extradition proceedings, whether in the magistrates' courts or on appeal, then it is incumbent on those representing the Appellant to ensure that every court knows the full circumstances. Counsel did so when the appeal in respect of EAW1 came before Sir Stephen Silber and when both matters were listed in October. Mr Gledhill told me that his information is that his instructing solicitors informed DJ Goldspring at the extradition hearing in July. Ms Farrant, who was present at the hearing before DJ Goldspring, has confirmed that it would be her usual practice to give a full procedural history. In this case, that would normally include the history of EAW1. However, there appears to be no specific reference in Counsel's note, taken in shorthand, confirming that the earlier warrant was brought to the attention of the Court by either party. The judgment makes absolutely no mention of the previous extradition proceedings.
13. Moreover, the notice of appeal in respect of EAW2 makes no mention of the earlier proceedings. This should not have happened. The staff in the Administrative Court office will always seek to link cases effectively, however it is all too easy for an error of this kind to arise if an application for permission to appeal is lodged with no mention of the earlier linked case.

The Approach to Two Cases Heard Together on Appeal

14. There are potential bars to extradition which must be considered separately, even when two appeals are heard together. Mr Gledhill's submission, both orally and in written submissions made at my request following the hearing, is that separate consideration should be the approach in all cases and in respect of all issues. Each appeal is discrete, and consideration of the case of the matters in hand should be discrete, since the decision in the given appeal, absent fresh evidence, is whether the decision by the district judge was "wrong".
15. A difficulty I perceive with that rather straightforward approach is that there will often be matters common to multiple appeals. That is the case here. Although matters are framed slightly differently in relation to the accusation warrant EAW2, because framed both under Article 8 and under Section 21A, in this case the substance of the matter under both heads and in both appeals is in fact identical. The Appellant's submissions at the extradition hearings and on appeal are based on almost exactly the same factual material and with the exactly the same point of substance: it would be disproportionate to extradite, given the impact on the Appellant's private and family life.
16. Counsel have helpfully searched authority for guidance. Neither has found a case where an appellate Court has been asked to consider two cases of different warrants, which were considered separately by different District Judges on different occasions.
17. In Zierzynski v Polish Judicial Authority [2014] EWHC 3453 (Admin), DJ Bayne considered two separate European Arrest Warrants on the question of Article 8. No distinction was drawn between the two warrants for the purpose of considering proportionality on consideration of infringement of Article 8.
18. In Zaljski v Circuit Court in Govzow Wielkopolski [2015] EWHC 1463 (Admin), Sir Stephen Silber heard an appeal from a District Judge in a case with both an accusation and a conviction warrant. The appeal was brought solely on the conviction warrant, on the ground that extradition was not proportionate and was a breach of Article 8. Argument was presented without apparently being deflected by the fact that extradition would take place in any event. In another case with some similarity, Sir Stephen Silber ruled on an Article 8 objection in Rozanski v District Court in Bydgoszcz [2015] EWHC 1470 (Admin). Here too there was to be extradition on accusation warrants which were unchallenged on appeal. Sir Stephen observed (paragraph 5) that this was a relevant fact, but went on to consider the Article 8 submissions independently on the conviction warrants.
19. In Kalemba v Regional Court in Gdansk, Poland and another [2015] EWHC 1880 (Admin), Cranston J appears to have considered it relevant to Article 8 and proportionality that extradition was inevitable, following an un-appealed Order on a different warrant. The judge said:

"10. …it seems to me that given that the appellant is now to be extradited under the conviction warrant the balance in relation to Article 8 changes, as does consideration of oppression in section 14. The reality is the impact of extradition under this second warrant is much diminished since the appellant will be extradited to Poland to serve a sentence of imprisonment of 1 year and 2 months' imprisonment in the near future under the first warrant. If there were any doubts about how the balance came out prior to the decision refusing permission to appeal on the first warrant, they now fall away. It is clear to me that applying the analysis required by Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), Article 8 does not operate as a bar to the appellant's extradition. Nor can I conclude that it would be oppressive to extradite him by reason of the passage of time. Given the fact of the appellant's extradition under the first warrant there is no need to go into the detail."

20. Ms Farrant for the IJA relies on that approach, and submits that the appellate Court must take into account the reality of the Appellant's current situation in assessing the merits for Article 8 and proportionality. Section 27(1) of the Extradition Act 2003 permits the Court to take into account changed facts which materially affect the case and conduct the balancing exercise afresh.
21. Ms Farrant also relies on the guidance from the Lord Chief Justice contained in the Criminal Practice Directions Amendment No 2 [2014] EWCA Crim 1569, as to how to proceed under section 21A of the Act. The guidance is clear that multiple charges and multiple extradition requests are matters which may make it proportionate, and thus lawful, to extradite in relation to an offence which might otherwise be regarded as too trivial, and an insufficient foundation for extradition: see Rule 17A.4.
22. Thus Ms Farrant submits that the appeals here must be considered with all matters in mind. No question of proportionality can properly be decided without reference to everything which underpins the public interest in extradition being weighed in the balance. For example, if hypothetically EAW1 was in respect of a relatively minor offence, committed or allegedly committed a long time ago, whereas EAW2 arose in respect of a very serious offence committed recently, it would be wholly artificial to refuse extradition on the former by reference to an Article 8 impact rendered quite academic by the latter.
23. I agree with the submissions of Ms Farrant. The essence of any consideration of proportionality is to take all relevant matters into account, and balance the competing factors and interests. DJ Bayne was not in a position to do that. DJ Goldspring might have been in that position if all matters had been fully before him. Given the history here, it is appropriate that I should do so. If it is necessary, I invoke Section 27(A) to permit all matters to be considered together.
24. It is important to emphasise that this approach is consistent with the guidance from the Lord Chief Justice, and is not inconsistent with the emphasis laid by the Divisional Court in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), on the threshold for successful appeal being a finding that the decision at first instance was "wrong". Celinski was intended to restate and emphasise that an extradition appeal is not a re-hearing. In my view, that approach in no way precludes looking at matters in the round, when considering proportionality on facts as they are here. The alternative would be absurd. A trivial offence could properly lead to extradition if listed in the same warrant as a serious offence (following the Guidance) but a different outcome would be reached if the serious offence was in a separate warrant before the Court on the same day.
25. I should also stress that this approach only arises where the proportionality of extradition is in question. Where formal defects are, or may be, in question, each warrant will of course be the subject of separate and discrete consideration.

The Facts

26. The substance of the Appellant's Article 8 and Section 21A arguments are the same. The Appellant has lived since shortly after his arrival with a lady who travelled with him from Poland. They married in 2013. The Appellant's father was killed in an accident some years ago, following which his mother became terribly distressed and then depressed. She is now part of the household.
27. The Appellant got into some trouble after his arrival in this country, having been convicted of an offence of driving with excess alcohol in 2012. He has worked as a chef for much of the period in England, but more recently has become self-employed, describing himself as a property developer. Although his wife works part time, he is the main breadwinner for the family.
28. The most striking feature of his Article 8 claim relates to his mother. She has a serious and aggressive form of cancer called cutaneous T-cell Lymphoma. She underwent stem cell transplant at the University Hospital Birmingham in early February 2015. The condition was well documented before each of the district judges and before me. In a letter of 25 February, her haematologist writes:

"She is currently under our weekly post-transplant follow-up which will continue for the next few months. She is likely to remain imunocompromised for at least twelve months post transplant. This is a complex medical treatment which comes with about a 20 per cent risk to her life over the next twelve months."

29. I consider firstly the approach of DJ Bayne in January. Her decision was recorded in a note made of her extempore ruling. Having recited the facts of EAW1 in summary, she recorded her conclusion that the Appellant was a fugitive from justice. She focussed on the argument presented under Article 8. She noted the family circumstances, including the birth of a daughter in the UK now aged three years old, and the presence of the Appellant's ill and dependent mother. DJ Bayne also noted that the Appellant's brother lives in Birmingham but "he and their mother have some difficulties between them". The district judge went on to note that any family life established since 2009 had been formed in the knowledge of the Appellant's precarious position, a matter relevant to proportionality. The district judge expressed herself as satisfied at that the Appellant's mother was seriously ill and would need considerable support following the bone marrow transplant which was then in immediate anticipation "but there is no evidence to suggest that she will not receive appropriate care within the system".
30. Taking all those matters into account, the district judge concluded that there was no doubt matters would be difficult for the Appellant's family, but the hardship would not go beyond that inherent in the extradition process. The offence was not a trivial one, because of the injuries caused. It was likely that the Appellant would have faced a custodial sentence in this country, where he would have been charged with an equivalent offence. Taking into account his deliberate attempt to avoid punishment and his subsequent offending it was proportionate to extradite him. DJ Bayne made it clear she had paid due regard to the principles laid out in Norris v United States of America (2010) UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. This judgment was reached before the decision of the Divisional Court in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin).
31. I turn to the decision of DJ Goldspring in relation to EAW2. This was a full written judgment, setting out the facts in considerable detail. As already noted, there was no reference to the existence of EAW1 or the proceedings flowing from it. DJ Goldspring identified the issues under Section 21 and Section 21A and recited the procedural background. He recited some of the evidence given by the Appellant under cross-examination. Having adopted paragraph 57 of his witness statement, the Appellant was cross-examined to suggest that he was a fugitive. DJ Goldspring noted that the Appellant changed his account, abandoning the claim in the witness statement that he was only ever questioned about these offences as a witness. After reciting the evidence, DJ Goldspring concluded that there was no doubt the Appellant was a fugitive in relation to EAW2.
32. This district judge went on to direct himself as to the major authorities on Article 8, including Norris and HH but adding a considerable raft of further authorities. He analysed the structure of Sections 21 and 21A, and approached his conclusions explicitly on the basis of HH and Norris but also adopting the approach of the Divisional Court in Celinski, quoting the dicta of the Lord Chief Justice as to the very high public interest in honouring extradition arrangements, and in discouraging persons from seeing the United Kingdom as a State willing to accept fugitives. The district judge then recited the factors in favour of discharge in the following terms:

"22. The RP's article 8 rights and those of his wife, his mother and his young daughter are clearly engaged in particular his right to a family life. The factor that weighs most heavily in favour of discharge is the ill health of his mother, who suffers from a rare form of cancer requiring a bone marrow transplant and lengthy and unpleasant convalescence. I recognise this will be adversely effected by an order for extradition and that in an ideal world he would stay and assist it that recovery along with his wife. The evidence on the point did not go so far as to suggest that that recovery would be delayed or interfered with in the event of extradition and his wife is fit and healthy and capable of providing the practical and emotional support required and where gaps may appear in that care his mother is under the care of University Hospital Birmingham who will ensure appropriate care is provided. In relation to the daughter she is again well and apart from the obvious and unavoidable hardship that extradition would cause nothing in this case shows that hardship to be severe. Clearly finances will be tight if he is extradited but the welfare state will support the family through the benefits system. What is suggested is that because of her illness his mother will not be in a position to assist his wife with their daughter's upbringing. That is true but I have no evidence that his wife could not cope on her own just like many others who for whatever reason find themselves as a single parent.

I therefore conclude that the interference will be such so that the child will not suffer significant hardship and will be provided an appropriate environment to be brought up in.

23. Having undertaken the balancing exercise and weighed factors for against those against extradition I conclude that the factors in favour of discharge DO NOT outweigh those in favour of extradition. The interference with her limited article 8 rights is proportionate and I therefore reject this bar."

33. In reviewing the matters relevant to Section 21A of the Act, the district judge relied upon the decision of Miraszewski and others v District Court in Torun, Poland and another [2014] EWHC 4261. DJ Goldspring set out the relevant factors to be taken into account under Section 21A. He concluded that the burglary was a serious offence since it was a commercial burglary of a pharmacy and the amount of money stolen was "considerable". He concluded that the second offence in the accusation warrant might on its own not be so very serious but "must be considered in the context of his overall offending". The district judge noted that it was for the requested person to identify any "less coercive measures" which would be appropriate, but he was satisfied that there was no such step in this case. For those reasons he ordered the extradition of the Appellant.

My Conclusions

34. In the course of making submissions, Mr Gledhill was clear that the real thrust of the case was the Article 8 incursion into family and private life, and that on the facts of this case there was no real distinction between that claim in relation to EAW1 and EAW2, or indeed between the impact under Section 21 and Section 21A considerations. He did rely upon the matters advanced before each district judge and before me. In relation to EAW1, the Article 8 claim was to be considered against "the significant delay on the part of the requesting territory" in issuing the EAW. The balance should have fallen in favour of the Appellant. In relation to EAW2, Mr Gledhill relied upon the same points bearing on the impact on family and private life. He added that the offences set out in box E of EAW2 "could not be described as trivial" but "were not the gravest offences, taken by themselves or together and would not necessarily attract custodial sentences in the United Kingdom". It was submitted that DJ Goldspring did not afford sufficient weight to the factors in favour of discharge, particularly delay, and gave too much weight to the seriousness of the allegations.
35. Were I to approach each case separately, I would have concluded that neither District Judge Bayne nor District Judge Goldspring was wrong in the conclusions they reached. It seems to me that in each case the judge directed herself or himself appropriately and applied the correct principles. It also seems to me, in each case, that the balance of considerations was perfectly rational and defensible.
36. However, taking all the matters together, there is in my view no question that the proportionate step is to permit extradition under both warrants. I fully accept the difficult family circumstances, particularly affecting the Appellant's mother. I note that the brother's wife and child have returned to Poland, and it is intended that the brother will follow. I presume that the Appellant's mother will remain in the United Kingdom because of the need to continue her treatment. This means that the weight of supporting her and looking after her will fall upon the Appellant's wife, in the absence of the Appellant himself. I recognise the impact this will have upon the family.
37. This Appellant is not merely a fugitive, but a fugitive in circumstances which underline the need for extradition. Underpinning the public interest in maintaining the system of extradition is the desire to preserve the integrity of the legal system of the respondent judicial authority. This Appellant was granted a compassionate delay of the onset of his sentence under EAW1 on the basis of his mother's illness. Having been granted that extension, he then became a fugitive. The very same factor which gained him a compassionate step from the Polish court is now relied on to prevent his extradition.
38. For all these reasons I have no hesitation, taking all the matters into account, in concluding that the Appellant should be extradited in respect both of the conviction warrant EAW1 and of the accusation warrant EAW2. For those reasons these appeals fail.