England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		18th February 2015

1. MR JUSTICE SWEENEY: The appellant, who is now aged 31, appeals under the provisions of section 26 of the Extradition Act 2003 against the decision of District Judge Blake, made on 28 November 2014 at the Westminster Magistrates Court, to order the appellant's extradition to Poland on a conviction European Arrest Warrant issued by the respondent on 23 April 2014 and certified by the National Crime Agency on 16 July 2014 to serve a sentence of 1 year 7 months (less time spent on remand in this country) being the remainder of an original total sentence of three and a half years' imprisonment imposed on 26 April 2010 for three drugs offences, namely: (1) trafficking 100 grams of cannabis resin from Holland to Poland in November 2008; (2) being in possession of 23.45 grams of amphetamine, 26.786 grams of cannabis resin and 0.1 of a gram of marijuana on 19 November 2009; (3) supplying amphetamine in amounts between 25 and 50 grams on a number of occasions between November 2008 and November 2009.
2. In April 2012, after having served part of his sentence the appellant was temporarily released (albeit not for the first time) from the service of his sentence in order to obtain medical treatment, and used the opportunity to flee from Poland to this country.
3. The appellant was arrested on 4 August 2014. The initial hearing took place on the following day, when the appellant was remanded in custody where he has since remained.
4. The appellant gave evidence at the eventual extradition hearing raising two issues in bar of his extradition, namely under section 25 of the 2003 Act as to his medical condition, in particular the condition of his right arm, and under section 21 of the 2003 Act as to the proportionality of extradition in light of his Article 8 rights. It is not disputed that the appellant is a fugitive.
5. The District Judge found that the condition of the appellant's right arm did not render his extradition unjust or oppressive and that nor was extradition a disproportionate interference with the appellant's Article 8 rights, even if he was required to serve as little as only 11 months or even 7 months of his outstanding sentence.
6. Whilst, initially, grounds of appeal were put forward in relation to both the issues before the District Judge, the appeal has been advanced on the appellant's behalf today solely on the basis of the Article 8 issue.
7. On the appellant's behalf Miss Collins draws my attention to the principal authorities of Norris v the United States of America [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and to other authorities in relation to the factors that it is appropriate to take into account in the requisite balancing exercise in relation to Article 8. In particular, the nature and seriousness of the offences; the extent of delay; the age, change in life and maturity of the appellant; the sentence that would have been imposed in this country; the fact that it is not necessary for the appellant to be a parent for his Article 8 rights to be involved and the fact that a prisoner was entitled to apply for, but not automatically entitled to, release at the half way point of a sentence being served in Poland.
8. Miss Collins points out, in particular, that by the time of his extradition, if this appeal is dismissed the appellant will have served the equivalent of the order of 2 years 6 months of the three and a half year sentence (once his time in custody in this jurisdiction is taken into account) and thus will have served, if extradited, considerably longer than he would have done if sentenced in this jurisdiction.
9. Miss Collins further submits that whilst the appellant is a fugitive, the circumstances which drove him here -- namely frustration at the inability of the Polish authorities to secure medical treatment for him for the injury to his right arm, sustained in the same year that he was first imprisoned -- demonstrates that his temporary release was not just a ruse and that his primary intention in coming to the United Kingdom was to obtain medical treatment rather than to flee justice; he had resided here previously, she points out.
10. Miss Collins submits that against that background the appellant's decision to continue to build his life here is readily understandable. She further submits that whilst the appellant does not have family in this country, given that he has already served around three quarters of his sentence it would be disproportionate to extradite him.
11. On the respondent's behalf Miss Mackinnon argues amongst other things that: (1) the appellant has no family ties in this jurisdiction, indeed he is single, has no children and his father lives in Poland; (2) although the appellant has no similar convictions in this country it should be noted that he does have convictions here for driving matters and for breach of a community order; (3) the offences in Poland were serious offences. The conviction for the trafficking of drugs makes them significantly more serious than if they were simply for possession or even supply within Poland itself; (4) the appellant was released for medical treatment on 2 April 2012, his application for an extension of his release was refused on 11 April 2012 and he knew that an arrest warrant was issued for him on 12 April 2012 and he left Poland between 12 and 14 April 2012, thus in full knowledge that there was a warrant for his arrest; (5) there is no medical evidence to support the appellant's contention that if he had been treated earlier in Poland his arm would have recovered, nor that he has ever had corrective surgery or that his condition would worsen in any way if he was remanded in custody; (6) there is no evidence that appellant could receive any treatment for his arm injury -- indeed in evidence he explicitly accepted that the latest medical diagnosis is that the injury cannot be treated.
12. Miss Mackinnon further submits that any lapse of time since April 2012 is due solely to the conduct of the appellant who knew, as I have touched upon already, that an arrest warrant had been issued for him in told and chose to leave Poland immediately upon, or within a day or so of, learning of that fact.
13. Miss Mackinnon further submits that a comparatively short period of time has elapsed since then and that the life that the appellant has built up in this country during the intervening period, such as it is, is certainly not such that his extradition would be unjust when set against his Article 8 rights.
14. I also take into account paragraph 66 of the recent judgment of the Divisional Court in Belbin v the Regional Court of Lille, France [2015] EWHC 149 (Admin) in which the court made clear that when considering Article 8 issues on appeal the appellate court is carrying out a review applying public law principles.
15. I have considered Miss Collins' arguments with care but can find no basis upon which to fault the District Judge's judgment in relation to the Article 8 issue. Accordingly this appeal fails and is dismissed.