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
		31/03/2015

Lord Justice Aikens:

1. This is the judgment of the court.

Synopsis

2. The extradition of Marcin Podlas ("the appellant") is sought in respect of two European Arrest Warrants ("EAWs") by a Polish Judicial Authority, the District Court of Koszalin ("the JA"). Poland is, of course, a category 1 territory for the purposes of the Extradition Act 2003 ("the EA") so that Part 1 of the EA applies to this case and this appeal. The two EAWs are what are commonly called "conviction" EAWs, that is to say the appellant's return is requested in order that he may serve outstanding prison sentences. The total period of imprisonment, taking the two EAWs together, is four years six months.
3. The first EAW ("EAW 1") was issued on 14 July 2009 and was certified by the Serious Organised Crime Agency ("SOCA") on 18 September 2009. It relates to three offences: the first is of driving with excess alcohol. The particulars of that offence, as set out in box (E) of the EAW state that the appellant drove a car "under the influence of alcohol – 1,04 mg/l of alcohol in the exhaled air" and made a reference to a provision in the Polish Criminal Code. That description was the basis for a challenge before the DJ (and this court) that that offence is not an extradition offence pursuant to section 10 of the EA. The second offence was of obstructing a constable in the execution of his duty. The request for extradition in respect of the third offence was withdrawn and is not relevant. The period of imprisonment imposed in respect of each of the two relevant offences was one year.
4. The second EAW ("EAW 2") was issued on 1 October 2013 and was certified by the National Crime Agency ("NCA") on 24 October 2013. EAW 2 seeks the extradition of the appellant to serve a sentence of two years six months in respect of a tax fraud.
5. The appellant was arrested under EAW 1 on 19 August 2013 and arrested under EAW 2 on 19 November 2013. The appellant made two initial challenges to the EAWs: first, as to their validity under section 2 of the EA and secondly, as to whether the offences identified were extradition offences, under section 10 of the EA. District Judge Ikram ("the DJ") rejected both of those challenges on 27 June 2014. Further challenges to the two EAWs were then made on the grounds that: (1) EAW 2 did not give sufficient particulars of the alleged VAT fraud in respect of the amount of benefit obtained or how it was calculated, so that EAW 2 was invalid; (2) in relation to both EAWs it would be oppressive by reason of the passage of time to order the appellant's extradition, by virtue of section 14 of the EA; (3) in relation to EAW 2, the JA could not prove, to the criminal standard, that the appellant had deliberately absented himself from his trial, so that, because it was accepted that the appellant would not have the right of a retrial if surrendered to Poland in respect of that offence, his extradition was barred by virtue of section 20(7) of the EA; and (4) the extradition of the appellant would be a disproportionate interference with his rights to a private and family life under Article 8 of the European Convention on Human Rights ("ECHR"), so that his extradition was barred by virtue of section 21 of the EA.
6. At the main extradition hearing on 29 August 2014 the DJ heard oral evidence from the appellant, his partner (Ms AC), and Dr Tom Grange, who had prepared a psychological report on the effect of the extradition of the appellant on his family, especially the two minor children. The DJ had before him various statements from the appellant and his partner and other documents. The DJ reserved his Reasons for his Ruling, which he handed down on 11 September 2014. The DJ rejected all of the challenges to the extradition under the two EAWs and so ordered the appellant's extradition in accordance with section 21 of the EA.
7. On this appeal, the extradition order is challenged by Ms Bhatt on behalf of the appellant on four grounds. These are: (1) in respect of EAW 1, the first offence (drink driving) is not an extradition offence because it is not clear on the face of the EAW that the conduct therein alleged would constitute an offence under the law of England and Wales if it had taken place within the jurisdiction, because of the reference to "1,04 mg/l of alcohol in the exhaled air". The DJ was wrong to make a calculation to "convert" that figure into the measurement that would be used under English law, for the purposes of section 65(3)(b) of the EA. (2) In respect of both EAWs, the DJ was wrong to conclude that the appellant was a "fugitive", so that he was not entitled to argue that his extradition would be "oppressive by reason of the passage of time" under section 14 of the EA; (3) in relation to EAW 2, the DJ was wrong to conclude that the appellant had deliberately absented himself from the trial for the purposes of section 20(3) of the EA, so that, as it was accepted that the appellant would have no right of retrial if returned to Poland, the DJ should have discharged him in respect of EAW 2 pursuant to section 20(7); (4) the DJ erred in concluding that, in relation to both EAWs, the appellant's extradition would be disproportionate to the interference with the appellant's rights to private and family life under Article 8. Ms Bhatt informed the court that she was not pursuing the argument that EAW 1 did not contain sufficient particulars of the first and second offences, so as to make it an invalid EAW.

First ground: is the "drink driving" offence identified in EAW 1 one that discloses conduct that would constitute an offence under English law?

8. Ms Bhatt's argument concentrates on the following statement of the DJ in his Ruling of 27 June 2014:

"The first offence in EAW 1 relates to an allegation of excess alcohol and a simple calculation (as the Polish figures are clear in their units) shows that his breath reading when driving was the equivalent of 104 micrograms of alcohol in 100 ml of breath, the limit in England being 35 micrograms".

9. Ms Bhatt relies upon the decision of Ouseley J in R(Rozakmens) v Judicial Authority of Latvia [2010] EWHC 3500 Admin. In that case the requested person was accused of driving while being under the influence of alcoholic beverages in Latvia, where it was alleged that "the amount of alcohol in his breath when checked with portable device for alcohol checking Lion SD-400, during first check was 0.71 per mile, but during second check, 0.75 per mile". Ouseley J rejected an argument that there was dual criminality by reference to the offence of driving or being in charge when under the influence of drink or drugs, which is an offence under section 4(1) of the Road Traffic Act 1988, which replaced similar provisions in earlier enactments. Ouseley J referred to section 5 of the 1988 Act which creates an offence of driving with alcohol in the breath being above a prescribed limit. However, section 5 had not been relied on as the equivalent English offence before the DJ in that case. At [8] of his judgment Ouseley J commented that the court would need to be clear "that the Latvian measurements could be translated into an English measurement satisfactorily enough" for a judgment to be made to see whether the facts constituted an offence under section 4. Ms Bhatt submitted that the comments of Ouseley J represented a proposition of law that the English court will not attempt to do any calculation, however simple, from units used by the requesting country in its legislation to those used in the UK statute which is relied upon as the basis for showing that the conduct alleged would constitute an offence under the relevant UK law if it had occurred in the UK.
10. We accept that a degree of caution is needed if the appropriate judge (or this court) has to compare measurements used in a requesting state's statute to see if the offence in the requesting state would also constitute an offence under the relevant UK law if it had occurred in the UK. However, in our view there are no difficulties in this case whatsoever. The judge's statement of the figures, as set out above, is obviously correct, so that the offence committed by the appellant would have been an offence under section 5 of the 1988 Act if committed in the UK.
11. We reject this ground of appeal.

Second Ground: in respect of EAW 2, was the DJ wrong to conclude that the appellant was a "fugitive", so that he was not entitled to argue that his extradition would be "oppressive by reason of the passage of time" under section 14 of the EA?

12. Ms Bhatt advanced no argument in relation to EAW 1. However, in respect of EAW 2, she accepted that the appellant could not rely on section 14 as a bar to extradition if it was established that the appellant was a fugitive. She submitted that the DJ erred in his finding that the appellant was a fugitive. She also submitted that the DJ erred because he effectively shifted the burden of proof onto the appellant to demonstrate that he was not a fugitive, so that the DJ's conclusion of fact cannot stand.
13. The DJ analysed the evidence of the appellant in relation to the sequence of events concerning EAW 2. The DJ accepted the statement of the JA that the appellant was interrogated by the tax office in late 2006 and early 2007 and he rejected the evidence of the appellant that there was simply a "casual conversation" with the tax authorities. The DJ also accepted the statement of the JA that a summons stating that the appellant was due at court in respect of a £1.5 million fraud was sent to the appellant's father's address, where, on the appellant's evidence, he had been living immediately before coming to the UK in 2007. The DJ found the appellant was not a credible witness and concluded that the appellant was aware of the summons served on the father's address in 2007. He further found that the appellant stayed away from Poland and did not contact the tax authorities thereafter because "he well knew of the proceedings pending".
14. The DJ made express findings of fact that the appellant fled Poland to avoid proceedings in relation to the VAT fraud of which he was aware. On that basis the DJ found that the appellant was a fugitive and so could not rely on "passage of time" as a bar to his extradition.
15. We are quite satisfied that the judge was entitled to make the findings of fact that he did on the evidence that was before him at the extradition hearing. He heard the appellant give oral evidence and was in the best position to assess the appellant's credibility. Ms Bhatt has not put forward any material or argument which leads us to question the DJ's conclusion on the appellant's evidence about the sequence of events. We are also satisfied that, taken overall, the DJ's judgment did not alter the burden of proof. We are satisfied that the DJ did find, to the criminal standard, that the appellant was a fugitive. Therefore he is unable to rely on section 14 and this ground of appeal must be rejected.

Third ground, EAW2 only: the DJ wrongly concluded that the appellant had deliberately absented himself from the trial for the purposes of section 20(3) of the EA, so that, as it was accepted that the appellant would have no right of retrial if returned to Poland, the appellant should be discharged with respect to EAW 2 pursuant to section 20(7).

16. It was common ground before the DJ that, in respect of the extradition offence identified in EAW 2, the appellant was tried and convicted in his absence at various dates up to 17 July 2012. Under the scheme of section 20 of the EA, if the appropriate judge concludes that a person was convicted in his absence, he has to decide, under section 20(3) whether "the person deliberately absented himself from his trial". If the appropriate judge concludes that the person did deliberately absent himself from his trial, then there is no bar to the person's extradition under section 20 of the EA and the appropriate judge must proceed to consider whether there are Convention grounds to bar extradition under section 21.
17. Section 20 of the EA was based, at least in part, on Article 5.1 of the Council Framework Decision of 13 June 2002 (2002/584/HA), known as "FD 2002". That Article was deleted with effect from 28 March 2008 by Article 2.2 of Council Framework Decision of 26 February 2009 ...2009/299/JHA), known as "FD 2009", but the correct construction of the words "deliberately absented himself from his trial" in section 20(3) (or the equivalent wording in section 85(3) in Part 2 of the EA) must be construed in the light of the now deleted Article in FD 2002. The construction of section 20(3) of the EA, (or its equivalent in Part 2, viz. 85(3)) have been considered in a number of English cases, in particular Government of Albania v Bleta [2005] 1 WLR 3576 (which considered section 85(3)), Atkinson & Binnington v Supreme Court of Cyprus [2010] 1 WLR 570, Zwolak v District Court of Legnica Poland [2013] EWHC 1812 (Admin) and, most recently, Bicioc v Baia Mare Local Court Romania [2014] EWHC 628 (Admin). In Bleta, Pill LJ concluded that the words "the trial" contemplated a specific event and not an entire legal process, so that a person could not "deliberately absent himself from his trial" if he had fled the jurisdiction concerned before he was aware of any proposed trial or even proceedings which might lead to a trial: see [48] of his judgment. The approach and reasoning in Bleta was followed by this court in Mucelli v Government of Albania [2008] 1 WLR 2437. That point was not considered when Mucelli went to the House of Lords.
18. In Caldarelli v Court of Naples Italy [2008] 1 WLR 1724 the House of Lords had to consider what constituted the trial process in Italian proceedings for the purposes of deciding whether an "accusation" or a "conviction" EAW should have been issued when the first instance process had been completed but not the appeal process. Bleta was apparently not cited to their Lordships. They concluded that, at least in Italy, the trial was a "continuing process" not yet complete in that case. That approach was followed by this court in Mohammed Elashmawy v Court of Brescia Italy [2015] EWHC 28 (Admin).
19. The question of what constituted "the trial" for the purposes of section 20(3) was reconsidered by this court in Atkinson & Binnington v Supreme Court of Cyprus [2010] 1 WLR 570. In that case the two requested persons had been acquitted at first instance of manslaughter and inflicting grievous bodily harm with intent. The prosecution then exercised its right of appeal to the Supreme Court of Cyprus. The requested persons' Cypriot counsel had advised them that there was no chance of the appeal succeeding so they had not personally attended the appeal, although they had been represented by counsel. The Supreme Court allowed the prosecution appeals and imposed sentences of three years in each case. The requested persons had left Cyprus after their acquittals. After the convictions by the Supreme Court, Cyprus issued "conviction" EAWs in respect of the two requested persons. It was accepted in the extradition proceedings that there would be no right to a retrial if the requested persons were surrendered under the EAWs. They both challenged the EAWs on the grounds that the appeal had not been a "trial" and that they had not deliberately absented themselves from that process, so that they should be discharged under section 20(7) of the EA. The DJ ordered the persons' surrender to Cyprus and they appealed.
20. Collins J gave the first judgment of the Divisional Court. At [20] he noted that criminal procedures in other European countries were not necessarily the same as those in England and Wales. He concluded that a trial "is the legal process whereby guilt or innocence is to be decided" and that the "trial process" could not come to an end until there was finality. Therefore "trial" for the purposes of section 20(3) had to be construed accordingly and it was necessary to investigate the system in the requesting state to determine what the position was on the facts. Collins J referred to Calderelli and regarded his approach as consistent with the House of Lords' decision in that case. Collins J also referred to Bleta and commented that the approach in that case relied "too much on the domestic approach": see [28] of the judgment of Collins J. At [31] Collins J concluded that the construction given in Bleta to section 85(3) (and so, by parity of reasoning, to section 20(3)) was too narrow and that the case should not be followed. Maurice Kay LJ agreed with Collins J, whilst pointing out that the issue of whether a person had deliberately absented himself from his trial or a part of it was a question of fact, which did require a consideration of what was his state of mind at the time: see [41].
21. In Biocic, Mitting J, sitting in the Administrative Court, said that the issue of when a requested person was "deliberately absent from his trial" was a "vexed question" to which "a clear answer has not been given by our courts": see [1]. Mitting J referred to Bleta, Atkinson & Binnington, Zwolak v District Court of Legnica, Poland and FD 2009. He pointed out that this FD had been agreed with "…the objective of enhancing the procedural rights of persons subject to criminal proceedings to facilitate judicial cooperation in criminal matters….". FD 2009 inserted a new Article 4A into FD 2002. This provides:

"Decisions rendered following a trial at which the person did not appear in person.

1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing a custodial sentence or a detention order, if the person did not appear in person at the trial resulting in the decision, unless the European Arrest Warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:

(a) in due time:

(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;

and

(ii) was informed that a decision may be handed down if he or she does not appear for the trial;

or

(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

(c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed:

(i) expressly stated that he or she does not contest the decision;

or

(ii) did not request a retrial or appeal within the applicable time frame;

or

(d) was not personally served with the decision but:

(i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed;

and

(ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant."

22. Mitting J concluded, at [13], that the new provision fitted "…far more closely with the reasoning in Bleta than it does with…" Atkinson & Binnington and Zwolak. However, Mitting J went on to say, at [15], that he was satisfied that the proper interpretation of section 20(3) of the EA "…requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself" and that it "…was not enough that [the requested person] should be arrested (sic) in circumstances in which a trial is likely or even inevitable". Mitting J also considered that the structure within which cases of this kind should be dealt with in the Member States is that set out in the FD 2009. He continued:

"As it happens, our law is capable of being aligned with [the FD 2009] and was for several years thought to be so aligned. It should revert to that position".

23. With great respect to Mitting J, who has much experience in this field of the law, we find this last comment a little opaque. In our view the correct position is as follows: first, section 20(3) cannot be construed in the light of FD 2009, because that was not extant at the time the EA was made law and the new Article 4A in FD 2002 has never been given the force of law in the UK. Therefore, although Mitting J's analysis of Article 4A of FD 2002 (as inserted by FD 2009) may well be correct, that does not have an impact on the correct construction of section 20(3). Secondly, it is clearly established by Calderelli and Atkinson & Bennington that what constitutes "the trial" for the purposes of section 20(3) is a question of fact and that in many Member States, "the trial" is a process, not just a single hearing. We think we must follow that approach. Thirdly, however, we accept that, upon its correct construction, section 20(3) can only become relevant when, in accordance with the procedures of the relevant requesting state, a "trial process" has been initiated against the requested person. Whether this "trial process" has been initiated will be a question of fact in each case. Fourthly, given the terms of section 206 of the EA, it must be for the JA to prove to the criminal standard, that the requested person has absented himself from this "trial process" and that he has done so deliberately. How the requested person knows of the process is irrelevant; it is the fact of his knowledge of the process that counts. Fifthly, whether a requested person has absented himself from the trial process "deliberately" calls for a consideration of what is in the mind of that person: see Atkinson & Binnington at [40] per Maurice Kay LJ. A requested person cannot have "deliberately" absented himself from a "trial process" if he did not know that that process is taking place or is about to be started. Sixthly, we agree with Mitting J that proof of the fact that the requested person had taken steps which made it difficult or impossible for the prosecuting authorities of the requesting state to serve the requested person with documents which would have notified him of the fact, date and place of the trial or, we would add, the start of the "trial process", is not of itself proof that the requested person has "deliberately absented himself from his trial" for the purposes of section 20(3).
24. The finding of fact of the DJ in this case is that the father of the appellant did receive a summons telling him that the appellant was due at court for a £1.5 million fraud and that the appellant "knew full well of the proceedings pending" and did not return to Poland or keep in contact with the tax authorities because of the fact he knew that proceedings were pending. The DJ therefore concluded that the appellant "knew well of the date and place of his trial in Poland from his father and sat back and did nothing to participate"; a decision which was of his "own choosing". That is, effectively, a finding of fact that the appellant deliberately absented himself from his trial.
25. Ms Bhatt submitted that there was insufficient evidence before the DJ to prove, to the criminal standard, that the appellant knew that a trial was in prospect. Furthermore, the DJ did not specifically recognise that it was for the JA to establish, to the criminal standard, that the appellant had "deliberately absented himself from his trial", rather than the other way around. Ms Bhatt accepted that the summons was served on the appellant's father, but he submitted that events after that were not clear. In particular there was no evidence of precisely when the "trial process" began so that there could be no determination of when the appellant should have been present at the process.
26. Mr Hearn, for the JA, submitted that the DJ's conclusion was correct and that there was ample evidence to find, to the criminal standard, that it was proved that the appellant's decision to absent himself from the trial process was deliberate. Mr Hearn relied on three particular aspects: first, the DJ's finding that the appellant was not a credible witness; secondly, the DJ's conclusion that the appellant had been interrogated by the Polish tax authorities prior to him leaving for the UK in 2007; and thirdly, the fact that the summons was addressed to the appellant, not his father, coupled with the admission by the appellant himself that he was informed of the proceedings in 2010. Mr Hearn submitted that the judge had correctly examined the evidence overall and his conclusion could not be impeached.
27. We are quite satisfied that the judge, at least implicitly, held that the facts he found established were proved to the criminal standard. We are also quite satisfied that the judge was entitled to find, on the evidence, that the appellant knew the date and place of his court appearance in relation to the VAT fraud charge and that he deliberately stayed away from those proceedings thereafter. Therefore the judge was entitled to conclude that it had been established, to the criminal standard, that the appellant had deliberately absented himself from his trial within section 20(3).
28. Accordingly, this ground of appeal must be rejected.

Fourth Ground: did the DJ err in concluding that, in relation to both EAWs, the appellant's extradition would be disproportionate to the interference with the appellant's rights to a private and family life under Article 8?

29. The DJ correctly stated the basic principle that the court has to follow:

"The right to 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 [requested person] and [his] family and the compelling public interest in extradition. I bear in mind that the interests of children are a primary consideration. I bear in mind the children's ages".

30. The DJ set out the facts concerning the family. The appellant has a partner, who is a Polish national and she was, at the time of the extradition hearing, unemployed. The couple have two children, then aged 2 and 4. The appellant's partner said, in her oral evidence, that she could not cope financially without the appellant. There was an allegation of domestic violence by the partner against the appellant in June 2013 and the appellant then moved out of the family home. The DJ had a report from Merton Social Services that stated that the only effect of the appellant's extradition would be that the children would not see him; it would be unlikely to have an effect on the children's living and care arrangements.
31. In relation to the report of Dr Grange, the DJ noted the expert's statement that the appellant's remand in custody had had an effect on the elder, male, child, who had become aggressive and had some difficulties at school. Dr Grange's view was that further separation of the child from his father would have both a short term and long term effect and the latter "would be severe". The younger female child would also suffer severe emotional and "relational" consequences in the event of separation from her father. Dr Grange also noted that the appellant's partner had "significant mental health problems in the form of anxiety and depression". In oral evidence he accepted that when he had written his report he had assumed that the appellant was living with the family. He noted that both parents had denied any domestic violence but it was his experience that minimisation of domestic violence was quite common.
32. The DJ pointed out in his judgment that the local authority had reported that the elder child did not display any problems with his behaviour at school, which suggested that he was able to control himself especially when in a "structured environment". The DJ concluded that he was not satisfied that the position with the children would be any different were the appellant not to be extradited. He emphasised the local authority's conclusion that the appellant's partner was deemed "capable of meeting the children's needs". Overall, the DJ concluded that whilst the interests of the minor children constituted a primary consideration, they were not determinate. He was satisfied that the extradition would not be a disproportionate interference with the Article 8 rights of the appellant and his family; he would have reached this conclusion whether or not the appellant was a fugitive.
33. Before us there was some further evidence from the appellant's partner and a psychologist who had recently given advice in relation to the behaviour of the elder child. Mr Hearn did not object to us considering this new material. The partner confirmed that she received Job Seeker's Allowance. She also reported difficulties at the school of the elder child which would necessitate him changing school. It had also affected her emotional well-being.
34. Ms Bhatt submitted that when all the evidence was taken into account, including the new evidence, it was clear that in this case the extradition of the appellant would be a disproportionate interference with his family life and that of his children and partner. Mr Hearn submitted that the Article 8 case was not a strong one; that the DJ had been correct on the material that was before him and that the new evidence did not "tip the balance".
35. The Article 8 issue has to be considered separately for each of the two EAWs, although the principles to be followed are, of course, the same in each case. It is clear that the DJ had very well in mind the legal principles set down in the two Supreme Court cases of Norris v Government of USA (No 2) [2010] 2 AC 487 and H(H) v Deputy Prosecutor of the Italian Republic [2013] AC 338. Ms Bhatt did not argue to the contrary. She argued that, on the basis of all the material now before the court, the appeal should be allowed in respect of both EAWs, because if the DJ had taken it into account, then he would have decided the case differently: section 27(4) of the EA.
36. In the case of EAW 1, the offences were serious. We are not satisfied that, even with the new material, the DJ would have decided the Article 8 question in relation to this EAW differently. In our judgment, the balance would still have come down decisively in favour of the public interest in extradition. In the case of EAW 2, which is an even more serious case, the DJ would equally not have decided the Article 8 question differently, even if he had had the new material before him.
37. Accordingly, this ground of appeal must also be rejected.

Disposal

38. Having rejected each of the grounds of appeal, it must be dismissed. The DJ's order for extradition in respect of both EAWs must be confirmed.