England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		25 February 2015

1. MR JUSTICE HOLROYDE: The appellant, Mr Pulik, was arrested on 4 July 2014 pursuant to two European Arrest Warrants issued by courts in Poland.
2. The first of those warrants, issued on 20 March 2012 and certified by the National Crime Agency on 17 April 2014, related to the appellant's conviction following a trial, at which he was present, of offences described as swindling and attempted swindling. For these offences he was sentenced to one year's imprisonment on 18 January 2006. He has 11 months and 29 days still to serve of that sentence.
3. The second warrant, issued by a different Polish court on 13 June 2012 and certified by the National Crime Agency on 13 June 2014, relates to a conviction of theft following a guilty plea on 27 December 2006. The sentence imposed for that offence was one of 12 months' imprisonment, all of which remains to be served.
4. The appellant was ordered to surrender to a prison in Poland on 26 January 2007. He was under an obligation to inform the court in Poland if he moved address for more than seven days. In breach of both those obligations the appellant neither surrendered to prison nor notified the Polish authorities when, in November 2007, he left Poland and came to this country.
5. In his absence the courts in Poland made a number of efforts to bring him before them so that he could serve the outstanding sentences.
6. On 17 December 2007 the police were asked to arrest him. They were unable to do so. By that stage of, course, the appellant was, in fact, in this country. A further request was sent to the police on 23 September 2008. On 6 October 2008 the police confirmed to the court that the appellant was not at the address which the courts were aware of and that his present whereabouts were unknown. Similar confirmation was given to the court in February and November 2009 and, again, in September 2011.
7. On 23 February 2009 an arrest warrant was issued in Poland. On 21 August 2009 he was identified on the police website in Poland as a wanted man.
8. Eventually, in March 2012, the court received confirmation that the appellant appeared to be staying in the UK though communicating with his family in Poland by telephone. In mid-May the court applied for a European Arrest Warrant to be issued.
9. The extradition proceedings came before District Judge Devas at Westminster Magistrates' Court on 15 December 2014. He ordered extradition. The appellant now appeals again that decision pursuant to section 26 of the Extradition Act 2003.
10. The power of the court to allow the appeal arises, in accordance with section 27(3)(a), if this court concludes that the District Judge ought to have decided a question before him at the extradition hearing differently and that, if he had decided the question in the way he ought to have done, he would have been required to order the appellant's discharge.
11. The proper approach to be taken by this court in considering the appeal was set out as follows by Aikens LJ at paragraph 66 of the judgment of the court in Douglas Belbin v The Regional Court of Lille, France [2015] EWHC 149:

"In our view Beatson LJ was correct in suggesting that it is the 'review' approach that should be taken by this court when it is considering an appeal from the conclusion of the District Judge on an issue of Article 8 'proportionality' in an extradition case. Under section 27(3) of the Extradition Act this court can only allow an appeal if it concludes that the 'appropriate judge' should have decided a question before him at the extradition hearing differently. In this context the relevant 'question' is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family's) Article 8 rights. If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of 'fresh evidence' arises on an appeal on 'proportionality', a successful challenge can only be mounted if it is demonstrated, on review, that the judge below (i) misapplied the well-established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse."

12. Notwithstanding the submissions made by Mr Solley for the appellant to the contrary I regard that guidance as binding upon me and will follow it.
13. The sole ground on which extradition was resisted here and below is that in proceeding pursuant to section 21 of the Act, as he was obliged to do, the learned District Judge was wrong to find that extradition would be proportionate and not incompatible with the Article 8 rights of the appellant and his family to a private and family life.
14. Three submissions in particular are made by Mr Solley. First, he submits that the District Judge gave insufficient weight to the effect on the appellant's family of his being extradited to serve his term of imprisonment in Poland. Secondly, he submits that the District Judge gave too much weight to the level of seriousness of the offences to which the warrants relate. Thirdly, he submits that the District Judge gave insufficient weight to the period of delay on the part of the Polish authorities in issuing a warrant for the appellant's arrest.
15. It is clear from the decision of the Supreme Court in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 that in cases which raise an issue as to the Article 8 rights of a requested person and his family the court must examine the way in which extradition would interfere with family life.
16. The approach to be taken is conveniently summarised in the speech of Baroness Hale at paragraph 8 in which she referred to the earlier decision of the Supreme Court in Norris v Government of the United States of America No 2 [2010] UKSC 9. She said:

"We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a 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; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no 'safe havens' to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (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. (7) Hence it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

With those principles in mind I turn to consider the arguments advanced by Mr Solley and the response to them of Miss Iveson for the requesting authority.

17. First, as to the effect on the appellant's partner and their young child if he is extradited to Poland. Plainly the Article 8 rights of the appellant, his partner and their child are engaged. Plainly there will be a substantial interference with those rights if the appellant is extradited to Poland and must spend nearly two years in prison there. However, as Miss Iveson points out in her submissions, the evidence before the court provided by the appellant himself was to the effect that his father and brother also live in the United Kingdom and that they have many friends in the United Kingdom with whom they have family gatherings. Further, the mother of the appellant's partner also lives in the United Kingdom and has assisted with childcare, for which they pay her. The appellant has been working as a printer and occasional driver and his wife has been working part-time for the same company. The evidence also before the court from the appellant's partner was to the effect that her daughter would be heartbroken if the appellant were to be extradited, and that the partner herself would not go to Poland if he was extradited because she wanted her daughter to have a good start in life and to attend an English school. However, the partner's evidence was that she would not be able to pay the rent without the appellant's income.
18. In considering those matters the learned District Judge came to this conclusion in his judgment:

"While extradition would clearly amount to an interference with the requested person's family life, I have come to the conclusion that the interference is both necessary and proportionate. There is nothing to suggest that the requested person's partner with or without the help of her mother could not discharge her parental obligations if the requested person were extradited and although there will be financial and personal consequences."

I shall come back to Mr Solley's overarching submissions shortly.

19. Secondly, as to the seriousness of the offences. The two offences of swindling involved the appellant, in concert with another offender, successfully in one case and unsuccessfully in another case, seeking to obtain monies by fraud from persons within their own homes. The sums of money involved were not particularly large, amounting only to a little over £50 in Sterling. The theft offence related to theft of property valued in Sterling terms at £1,666.
20. Plainly the view taken by the courts in Poland was that the seriousness of the offences merited a sentence of immediate imprisonment amounting in total to two years. Miss Iveson reminds me that in the speech of Lord Judge CJ in H(H) at paragraph 132 this court was enjoined to:

"... exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition."

21. Lastly, as to delay, Mr Solley submits that there was a period of about two years before the Polish courts issued any warrant for the arrest of the appellant even in that country which, he argues, suggests that those courts did not regard his offending or his unlawful absence from his sentence as particularly serious.
22. Miss Iveson, relying upon the chronology which I have briefly summarised, submits that the Polish authorities were clearly endeavouring to find out where the appellant was, and that the cause of any delay was the act of the appellant himself in leaving Poland without telling the authorities there where he was going.
23. As to these matters the learned District Judge said in his judgment:

"The European Arrest Warrant scheme is based on the principle of mutual recognition by the Member States of the European Union. Whilst the offences are not necessarily of the most serious type, they are in my view nowhere near trivial enough to tip the scale against extradition. I have considered the delay but I have to suggest that most if not all of the delay is as a result of the requested person leaving Poland, knowing of his obligations and not giving any notification of a change of address."

24. In his overarching submission Mr Solley argues that even if the three factors taken individually might not carry great weight they do in the aggregate provide strong reasons for this court to conclude that the learned District Judge struck the wrong balance in conducting the proportionality exercise.
25. I have come to the conclusion that I am unable to accept Mr Solley's submissions on those points. The offences were not of the first rank of gravity but, in my judgment, none of them can be regarded as trivial. Even if the sum of money involved in the swindling offences was not great, it was offending in concert with another, involving going into the homes of the intended victims. The offence of theft plainly involved a significant sum.
26. As for the delay, it seems to me impossible to argue against the District Judge's conclusion that that was wholly or mainly the consequence of the appellant's own actions in leaving the country without telling anyone where he was going when he knew he should by then already have been serving his prison sentences.
27. As to the effect upon the appellant's partner and child, this is, of course, to be regretted. It is, however, a consequence which often falls upon innocent parties when a man is imprisoned for his own crimes. Whatever sympathy the court may have for the appellant's partner and their child, I am not persuaded that the District Judge was wrong to conclude that the effect upon the family was not such as to make extradition disproportionate.
28. I stand back from an individual consideration of the factors and view these matters in the round, as Mr Solley has invited me to do. Notwithstanding his endeavours on the appellant's behalf I am unable to conclude that the District Judge should have reached a different decision.

For those reasons this appeal fails and is dismissed.

29. MR JUSTICE HOLROYDE: The consequence, Miss Iveson, is that the extradition will proceed.
30. MISS IVESON: I am grateful, my Lord.