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
		05/01/2016

Mr Justice Sweeney:

Introduction

1. The Appellant, who is now aged 47, appeals under the provisions of s.26 of the Extradition Act 2003 ("the EA") against the decision of District Judge Purdy, made on 11 December 2014 in the Westminster Magistrates Court, to order his extradition to Lithuania, a category 1 territory, pursuant to an accusation European Arrest Warrant ("EAW"), issued by the Respondent on 18 April 2012 and certified by the National Crime Agency ("NCA") on 11 June 2014, to face prosecution for the Framework offence of swindling, which is said to have involved an offence of dishonestly obtaining by deception scaffolding and like equipment worth the equivalent of about £8,800, and (in the original Lithuanian text) to have been committed in February 2010. As the offence is alleged to involve "property of a high value", it carries a maximum sentence of 8 years' imprisonment.

Background

2. The offence is said to have been committed by the Appellant and two accomplices – one of whom, pretending to be a legitimate customer, hired the scaffolding etc from a company, and the other of whom (with the Appellant) took it over with the intention of selling it.
3. The Appellant came to this country in February 2010 (as evidenced by a UK Border Agency document, dated 9 June 2010, entitled "Accession State Worker Registration Scheme") and thus arrived shortly after the alleged offence - though not, as the District Judge found, as a fugitive (see [7] of his judgment). The Appellant's wife and their then five children came to join him in May 2010. They all lived openly in this country and the Appellant was registered to work with the Home Office. In June 2010 a search was instituted for the Appellant in Lithuania, but without success. On 27 January 2012 a domestic warrant was issued for the appellant's arrest in Lithuania. As already touched on, the EAW was issued some three months after that on 18 April 2012. In May 2012 the Serious Organised Crime Agency (which, in October 2013, merged into the NCA – hence, for convenience, I refer to both as the NCA hereafter) was notified about the EAW "through wanted person diffusion" and conducted standard location checks for the Appellant. However, the Appellant was not located and it was recorded that "no further action is taken". The sixth child of the Appellant and his wife was born in this country. In February 2014 the NCA received information from the Lincolnshire Police as to the Appellant's whereabouts. After further checks, and as already indicated, the EAW was certified on 11 June 2014.
4. The Appellant was arrested on 26 June 2014. The initial hearing took place the following day and the appellant was released on conditional bail. After a number of adjournments, the full hearing finally took place on 25 November 2014. Proofs of evidence from the Appellant and his wife were put before the court. The material parts were not challenged – including the fact that he had had to cease work for health reasons and had become the main carer of the children, and that his wife worked in a factory 5/6 days per week. There was also documentation from the schools of the Appellant's children. Two issues in bar of extradition were raised - namely s.14 of the EA (the passage of time) and s.21 of the EA (Article 8 of the ECHR). The District Judge was not invited, as he should have been, to consider, in accordance with the then recently inserted s.21A of the EA, both whether extradition would be compatible with the Article 8 rights of the Appellant and his family (s.21A(1)(a)) and whether extradition would be disproportionate (s.21A(1)(b)).
5. In his concise written judgment, which was handed down on 11 December 2014, the District Judge found a number of facts, including that:

(1) The offence was serious.

(2) In the context of extradition and cross border tracking the lapse of time involved since February 2010 was not great.

(3) Whether for innocent or not so innocent reasons, the Appellant's coming to the UK very close to the time of the alleged offence had meant that the Lithuanian authorities had had no easy way of tracing him – especially after the rest of the family had left Lithuania in May 2010.

(4) The NCA, having no confirmed knowledge of the Appellant's presence in the UK, could not burden the system until confirmed presence was made known.

(5) The impact of extradition by removing the main carer for the children would probably force the Appellant's wife to reduce, if not cease, her current employment and almost certainly look to State benefits for fiscal support – whilst, as seemed likely notwithstanding her statement, prevailing on the older children to assist with the care of younger siblings.

6. As to the passage of time, the District Judge concluded that there was nothing to suggest that a trial would be unjust. He went on to agree that the Appellant could not be described as a classic fugitive, but ultimately found that there was nothing "unjust" or "oppressive" by reason of the passage of time in the Appellant being extradited. Events had simply caught up with him.
7. As to Article 8, the District Judge accepted that the rights of the Appellant, his wife, and all six of his children were engaged. He weighed, on the one hand, the consequences of extradition (which were not underestimated) in terms of the anxiety, distress and practical consequences for all (as militating against extradition), and the ability of family units to adapt to difficult and challenging circumstances, the presumption of honouring treaty obligations and enforcing cross-border criminal justice, and the adverse impact on public confidence in the impartial administration of justice in the event of an order for discharge (as militating in favour of extradition). In the result, he concluded that extradition was not disproportionate to the Article 8 rights of the Appellant and his family.
8. The appeal was initially argued before me on 20 February 2015. At the conclusion of that hearing I adjourned the appeal and required further evidence to be provided by the NCA – which was duly provided shortly thereafter. It was also known at that stage that a Divisional Court case was in the pipeline that would be likely to give authoritative guidance in relation to the approach to Article 8 in EA category 1 cases. This appeal was next listed before Supperstone J on 27 April 2015, when neither side attended. It was then listed before Haddon-Cave J on 15 June 2015, when the parties attended and it was recognised that it should be re-listed before me. In the event, given the provision of further skeleton arguments on behalf of the Appellant dealing with both the further evidence from the NCA and the delay since then, it has not been necessary to re-list the appeal for further argument as such. I must, however, apologise for the delay.

The grounds of appeal

9. Three grounds of appeal are advanced, namely that the District Judge ought to have concluded that:

(1) Extradition should be barred by s.14 of the EA as it would be oppressive for the Appellant to be extradited due to the passage of time that has elapsed since the date on which he is alleged to have committed the extradition offence.

(2) Extradition should be barred under s.21A(1)(a) of the EA as an order for extradition would amount to a disproportionate interference (i.e. be incompatible with) the Appellant's Article 8 rights and those of his family.

(3) Extradition was disproportionate and thus barred by s.21A(1)(b) of the EA.

10. Given the connections between the grounds, I propose first to summarise the arguments advanced during the hearing of the appeal in relation to each ground, together with subsequent factual and legal developments and further written submissions in relation to them; and then to examine the merits of each ground.

The first ground - s.14 (The passage of time)

11. S.14 of the EA provides that:

"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)……"

12. In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 Lord Diplock construed the words "unjust" and "oppressive" in the context of s.8(3) of the Extradition Act 1967. It was common ground before me that his construction applied equally to s.14 of the EA, as follows:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for over lapping, and between them they would cover all cases where to return him would not be fair."

13. That construction was endorsed at [31] of the judgment of the Privy Council in Gomes & Goodyear v Government of the Republic of Trinidad and Tobago [2009] UKHL 21. At [32] the Committee continued:

"First, the question is not whether it would be unjust or oppressive to try the accused but whether……..it would be unjust or oppressive to extradite him…….Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible; much will turn on the particular case……Fifthly, there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive."

14. Against the background that the District Judge concluded that the Appellant was not a fugitive (and that the Appellant was thus able to seek to rely on s.14) Mr Hearn, on the Appellant's behalf, submitted that:

(1) The central issue in the case was delay, with the key points being that the Appellant was not a fugitive; his unchallenged evidence that, at all material times, he had been registered with the Home Office; and the fact that no information had been supplied as to what checks had been done by the NCA in May 2012 - when a straightforward check with the Home Office would have revealed the Appellant's presence and thus avoided a culpable delay of two years.

(2) The period of time that had elapsed since the alleged commission of the extradition offence, i.e. in excess of four years, was significant in the context of a straightforward allegation of an offence which, though not trivial, was not of the utmost seriousness; would not necessarily result (particularly given the changes in the Appellant's circumstances since 2010) in the imposition of an immediate custodial sentence; and was one in relation to which the public interest in prosecution had been diminished by the passage of time.

(3) There was a substantial period of unexplained delay by the Judicial Authority – given that there was no explanation for the fact that the EAW indicated that a search for the Appellant was first instituted on 4 June 2010 and yet the domestic arrest warrant was not issued until January 2012.

(4) There was clearly culpable delay on the part of the NCA, in that (against the background that the Appellant was living openly in this country) there must have been a failure, after receipt of the EAW in May 2012, to carry out the sort of basic checks that would have resulted in the EAW being executed shortly afterwards – rather than in June 2014.

(5) The decision of Blake J in Slawonir Oreszczynsi v Krakow District Court, Poland [2014] EWHC 4346 (Admin) was instructive as to the potential effect of unjustifiable delay. In particular, even though it involved a fugitive, the appeal was allowed and Blake J was highly critical of the NCA's failure to take reasonable steps to locate the requested person (such as checking whether he was registered with the Home Office), and observed that extradition can become disproportionate where there has been lengthy culpable delay on the part of the executing authorities, because delay frequently leads to the deeper entrenchment of the Appellant's family life.

(6) Some reliance was also placed on Juszczak v Circuit Court Poznan Poland [2013] EWHC 526 Admin in which Collins J decided, in a case in which the whereabouts of the Appellant had been known for 6-7 years, that delay tipped the balance in the Appellant's favour in relation to Article 8.

(7) The Appellant's children were aged 18,16,14,8,5 and 2, with all but the youngest in full time education - making it impossible for the oldest to look after the others. The Appellant no longer worked due to medical difficulties. His wife provided the only family income and he was the main care provider for the children. The family home was privately rented and would be at risk if the Appellant was extradited because his wife would be forced to give up her employment to look after the children, and might have to return to Lithuania.

(8) Hence, whilst it was accepted that the Appellant could recall the relevant events and put forward a defence, extradition would be oppressive. Discharging the Appellant would not reward him for avoiding justice; and nor would it reduce mutual trust.

15. Miss Mackinnon, on behalf of the Respondent, argued that:

(1) The question for the Court was whether, given the period of time that had elapsed since the alleged commission of the offence, extradition would be oppressive.

(2) The alleged offence was of a relatively high value and therefore (as was accepted on the Appellant's behalf) could not be characterised as trivial.

(3) The passage of time, in the context of extradition cases, was not a particularly lengthy one.

(4) As was accepted, it was clear from the Appellant's proof of evidence that he remembered the alleged events and could properly put forward his account at trial.

(5) The Lithuanian Authorities had acted diligently in that a search had been instituted four months after the alleged offence, and a domestic warrant had been issued some fourteen months after that.

(6) There was no culpable delay by the NCA - in that the Appellant had been checked for in May 2012, very shortly after the EAW was issued, following the "standard operating procedure at the time" (per the statement of Craig Smith of the NCA which was before the District Judge). There was nothing at that time to indicate that the Appellant might have come to the UK, or that it was necessary to go beyond the standard operating procedure. It was not until February 2014 that the NCA was given a UK address for the Appellant and, once that was received, the NCA had acted quickly in making checks and obtaining the EAW. Hence the District Judge was correct in his assessment, at [7] of his judgment, that: "The NCA, having no confirmed knowledge of UK domicile, could not burden the system until confirmed presence was made known."

(7) Even if there had been culpable delay by the NCA, that did not render extradition disproportionate.

(8) The Appellant's case could be readily distinguished from that of Oreszczynsi (above) given that, in that case, the offences dated from 2002; in 2010 the NCA had received information from a Primary Care Trust that the Appellant was registered with the Trust in the UK, but had failed to follow that up; and thus there was a gap of four years between issue and certification of the EAW in relation to alleged offences which, by the time of certification, were some 12 years old. Whereas in the instant case:

(i) The delay between issue and certification was 18 months (rather than 4 years) and, at the time of the appeal hearing in February 2015, the alleged offences were five years old (rather than 12 years old at the time of certification).

(ii) In 2012 the NCA had no information to suggest that the Appellant was in the UK; the warrant contained only a Lithuanian address; no information was forthcoming about the Appellant's whereabouts in consequence of the checks made by the NCA; and in February 2014, once the NCA had become aware that the Appellant was in the UK, they had acted promptly.

(9) Against that background, and whilst it was accepted that the Appellant and his family had established a life in the UK, the Appellant's extradition would not be oppressive; it would cause hardship but nothing beyond that typically inherent in extradition.

15. Given the competing contentions as to whether there had been culpable delay by the NCA between May 2012 (when checks were first made) and June 2014 (when the EAW was executed) I ordered the provision of a further statement from the NCA to explain the position in more detail.
16. In a statement dated 24 February 2015, Helen Vaughan (an NCA officer whose responsibilities included the oversight of certification) indicated that:

(1) Notice of the EAW was first received by the NCA from Interpol Vilnius on 22 May 2012.

(2) The information provided included the Appellant's name, date of birth, nationality and details of his identity documents.

(3) The regions / countries that the Appellant was said to be likely to visit included, as a possibility, the United Kingdom – with no further detail being given.

(4) A PNC check would have taken place at that stage, but the file did not show that any PNC matches had been found.

(5) No further action had been taken by the NCA until 1 July 2013, when an email had been received from Interpol Vilnius which had indicated a possible United Kingdom address for the Appellant.

(6) In consequence, further PNC checks had been undertaken by the NCA and the new information had been circulated across various national databases, but it was not until 15 February 2014 that information had been received from the Lincolnshire Police that a possible match to the Appellant had been encountered, and a new address for him had been provided.

(7) Thereafter, starting on 16 February 2014, a wide variety of overt and covert database checks had been made (including with some civil service departments under the Home Office umbrella) – with the delay in certification until 11 June 2014 being caused by the length of time that it had taken for the results of the checks to be returned, which had delayed corroboration and verification of possible addresses.

17. In a subsequent Skeleton Argument Mr Hearn, on the Appellant's behalf, argued that:

(1) The statement of Helen Vaughan confirmed that the approach of the NCA in this case was identical to the approach taken in Oreszcynsi (above).

(2) It was now clear that when the NCA had been made aware of the EAW in May 2012 the only check that had been conducted had been on the PNC and, as the Appellant had never been arrested here, there had been no match. No further action (for example, a check with the Home Office) had been undertaken.

(3) It was not until after the information had been received from the Lincolnshire Police on 15 February 2014 that Home Office checks had been carried out and the Appellant's address had been identified.

(4) Hence the "systemic failings" of the NCA identified in Oreszcynsi had resulted in culpable delay in this case and therefore, for the reasons previously advanced, the Appellant should be discharged.

The second ground – s.21A(1)(a) (Article 8)

18. As already touched on, both the second and third grounds arise against the background that, although in force at the time, s.21A of the EA was not brought to the attention of the District Judge. Whilst he nevertheless did consider (albeit under s.21) whether extradition was compatible with the Article 8 rights of the Appellant and his family, he did not consider whether extradition was disproportionate.
19. Section 21A provides as follows:

"Person not convicted: human rights and proportionality

(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—

(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(b) whether the extradition would be disproportionate.

(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.

(4) The judge must order D's discharge if the judge makes one or both of these decisions—

(a) that the extradition would not be compatible with the Convention rights;

(b) that the extradition would be disproportionate.

(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—

(a) that the extradition would be compatible with the Convention rights;

(b) that the extradition would not be disproportionate.

(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.

(7) If the person is remanded in custody, the appropriate judge may later grant bail.

(8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."

20. In relation to Article 8, my attention was drawn to the leading authority of Norris v Government of the United States of America (No.2) [2010] 2 AC 487 in which, at [56], Lord Phillips said:

"The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves…..Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition".

21. I was also reminded of the principles identified in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 - in which, at [8] & [30], Baroness Hale JSC said:

"(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….

…the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg Court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is "necessary in a democratic society" in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale."

22. Against the background of those authorities, Mr Hearn submitted that:

(1) It was clear that extradition would interfere with the Appellant's Article 8 rights as well as those of his family.

(2) It was also clear, as confirmed by both Norris and HH, that honouring extradition arrangements, so that outstanding criminal sentences could be enforced, or so that individuals could be brought to trial, was a "legitimate aim".

(3) Accordingly, the question to be resolved was: whether an order for the Appellant's extradition was a proportionate response to the legitimate aim that had been identified?

(4) In answering that question the court would need to consider many of the factors that were relied upon in support of the passage of time challenge (see above), and which compelled the conclusion that extradition would amount to a disproportionate interference with the Appellant's Article 8 rights.

23. Miss Mackinnon submitted that the bar was a very high one and that the Appellant's case did not surmount it - given, in particular, that:

(1) Whilst the Appellant had lived in the UK for some 5 years and had a family life here, there was nothing in his circumstances that would make his extradition more oppressive than the interference inherent in other extradition cases.

(2) Whilst his wife currently worked, there would be nothing to prevent her from applying for benefits if she needed to scale down her work in the Appellant's absence.

(3) The District Judge found as a fact (see [7] of his judgment) that it seemed likely, notwithstanding her statement to the contrary, that the Appellant's wife would prevail on the older children to assist with the care of younger siblings.

(4) The constant and weighty public interest in extradition greatly outweighed the matters advanced on the Appellant's behalf and, particularly in view of the seriousness of the alleged offence, extradition was clearly proportionate.

24. At the time of the hearing in this appeal, the most recent Divisional Court authority as to the appellate approach to Article 8 issues in extradition appeals under Part 1 of the EA was Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) ("Belbin") – the precise import of which was in some dispute in argument. It was however known that another case was then in the pipeline which was likely to give authoritative guidance on the issues involved.
25. That guidance was duly given in Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274 (Admin), which was decided in May 2015. Indeed the Divisional Court, presided over by the Lord Chief Justice, gave authoritative guidance as to the correct approach, both at first instance and on appeal, when Article 8 issues are raised in extradition proceedings under Part 1 of the EA.
26. As to hearings at first instance the court ruled, amongst other things, that:

(1) The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in Norris (above) and HH (above). In future, absent further guidance from a specially constituted Divisional Court or the Supreme Court, it would not be necessary to cite any other authorities. In the latter case at [8] (above) Baroness Hale JSC made clear, at subparagraphs (3), (4) and (5), that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition; that there was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that the UK should honour its international obligations; that the UK should not become a safe haven; and that the public interest would always carry great weight, but that the weight varied according to the nature and seriousness of the crime involved (emphasised again by Baroness Hale JSC, and also by Lord Judge LCJ, Lord Kerr JSC and Lord Wilson JSC).

(2) It was important that the judge bore in mind, amongst other things, that:

(i) HH was concerned with cases that involved the interests of children, and the judgments must be read in that context [8].

(ii) The public interest in ensuring that extradition arrangements are honoured is very high, as is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (both of which factors would be expected to be addressed in the judgment) [9].

(iii) The decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect – particularly since the UK has been subject to the CJEU (which has stressed the importance of mutual confidence and respect) since 1 December 2014 [10].

(iv) The independence of prosecutorial decisions must also be borne in mind [11].

(v) It is also important for the judge to bear in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; and the judge must also take into account that personal factors relating to family life which will need to be brought into the balance under Article 8, will also form part of the matters considered by the court in the requesting state in the event of conviction [12].

(vi) A structured approach to Article 8 cases is essential, given that each case will turn on the facts found by the judge and the balancing of the considerations set out in Norris and HH [14 (ii)].

(vii) The approach should be one in which the judge, after finding the facts, sets out a list of the "pros" (militating for extradition) and "cons" (militating against extradition) in "balance sheet" fashion, and then sets out his reasoned conclusion as to the result of the balancing exercise and why extradition should be ordered or the defendant discharged [16] & [17].

27. As to the approach on appeal, the Court (at [23]) endorsed the general approach of Beatson LJ at [66] in Dunham v USA [2014] EWHC 334 (Admin), and of Aikens LJ in Belbin (above), but concluded ( also at [23]) that the application of that approach was likely to achieve a more consistent approach, that was consistent with Article 8 and the provisions of the EA dealing with appeals, by use of the analysis of Lord Neuberger at [93] & [94] in Re B (A Child) (FC) [2013] UKSC 33 as to the different ways in which an appellate judge might consider a trial judge's conclusion on proportionality – with a scale of seven potential conclusions ranging from one that it was the only possible view, to one that it was an unsupportable view [23].
28. Accordingly, the single question for an appellate court is whether or not, applying Lord Neuberger's analysis, the District Judge made the wrong decision. It is only if he / she had done so that an appeal can be allowed. Findings of fact, especially when evidence had been heard must ordinarily be respected, and the focus must be on the decision itself – errors and omissions in the reasoning do not, of themselves, necessarily show that the decision on proportionality itself was wrong [24].
29. In response to my invitation to make further written submissions as to the delay since the hearing before me, Mr Hearn accepted that there had been no significant change in the Appellant's personal circumstances. Nevertheless, he invited me to include the further delay in my overall assessment of the delay that has occurred in the case when determining whether an order for extradition is proportionate in all the circumstances of the case, and I have done so.

The third ground – s.21A(1)(b) (Proportionality)

30. As already touched on, it was common ground that, although the District Judge had not been invited to consider this issue, it was appropriate for me to decide whether the proposed extradition would be disproportionate.
31. As to the specified matters, Mr Hearn submitted that:

(1) Whilst it was accepted that the offence was not trivial, and that it did not fall into the category of offences that would render extradition per se disproportionate, neither was it of the utmost seriousness. The position where extradition is sought for offences listed in the Criminal Practice Directions Amendment No.2 [2014] EWCA Crim 1569 at 17A.5 should also be borne in mind, together with Pitchford LJ's then recent acknowledgment (in Miraszewski v Poland [2014] EWHC 4261 at [28]) that that guidance should be approached "as a floor rather than a ceiling".

(2) There was a real possibility of a non-custodial or non-immediate custodial sentence being imposed - not least because the alleged offence was over 4 years old; the Appellant had not been convicted of any offence in the intervening period; and had substantial family responsibilities. Indeed, in this country a suspended sentence, at worst, would be the likely outcome.

(3) The Respondent had failed to consider less coercive measures and, given in particular the period of time that had elapsed since the alleged offence, the fact that the Appellant was not a fugitive, and that he had no history of failing to surrender, the Respondent should have considered serving a summons.

(4) The combination of all three specified matters showed that the proposed extradition would be disproportionate.

32. Miss Mackinnon submitted that:

(1) The District Judge was right to find, at [7] of his judgment, that: "the offence is serious involving, on its face, a significant quantity of 'high value' scaffolding…." As the Appellant had conceded, the alleged offence was clearly not a trivial one. In addition, the facts set out in the EAW showed that there appeared to have been a degree of planning and the involvement of a group. It was clearly up the scale of gravity from simple theft.

(2) The maximum penalty for the alleged offence was one of 8 years' imprisonment. Whilst it was not known whether the Appellant had any antecedents in Lithuania, nor whether his alleged accomplices had been convicted or sentenced, based on the likely sentence in this jurisdiction and the level of sentencing for theft offences frequently seen in other EAW cases, a custodial sentence was the likely outcome.

(3) In Miraszewski (above) at [41] Pitchford LJ, when considering s.21A(3)(c), said: "It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligation under Article 5(3) ECHR, already considered the taking of less coercive measures. I accept the submission made by Mr Summers QC that there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances". Against that background it was reasonable to assume, in the circumstances of this case, that the Lithuanian Judicial Authority had considered a summons under its Article 5(3) obligation. In any event less coercive measures would not be appropriate in this case.

(4) In all the circumstances, extradition was proportionate.

The merits

33. To state the obvious, each case necessarily turns on its own facts and the decisions in Oreszczynsi (above) and Juszczak (above) turned on theirs. In reaching my conclusions I have applied the principles identified in the cases cited above, and in particular those underlined in Celinski.
34. The starting point is that the Appellant is not a fugitive, and has lived openly and on the record in this country since his arrival in February 2010. The District Judge found as a fact at [7] of his judgment (as, in my view, he was entitled to) that the Appellant's departure from Lithuania in February 2010, shortly after the alleged offence, meant that the Lithuanian authorities had no easy way of tracing him – especially once the rest of the family left in May 2010. However, that does not explain why a domestic warrant was not issued until January 2012 and why the EAW was not issued until April 2012. In my view the obvious inference, absent an explanation, is that there was a significant element of culpable delay. Equally, it is now clear that the EAW first came to the attention of the NCA in May 2012, at which point a basic check with the Home Office would have revealed the Appellant's presence, but only a PNC check was carried out – with a negative result. Indeed, even when further information was received by the NCA in July 2013, only another PNC check was done, along with circulation. It was not until February 2014 that database checks were made which included some civil service departments under the Home Office umbrella. Accordingly, and despite the careful way in which the District Judge approached the issue, I have no doubt that he was wrong not to find that there had been culpable delay of around at least three years in total in the Appellant's case. Equally, during the course of that delay the Appellant and his wife, along with their children, have put down roots in this country. Indeed their sixth child was born here. The Appellant is now in less than robust health and looks after the children whilst his wife is the bread winner - so clearly the effect of extradition on the family will be significantly greater now than it would have been had there not been culpable delay.
35. Whilst clearly not trivial, the alleged offence is not of the utmost seriousness and I agree with Mr Hearn that, in this jurisdiction, and given that there is no information to suggest that the Appellant is other than of previous good character, and that he has not committed any offences in the period since February 2010, conviction would not necessarily result in the imposition of an immediate custodial sentence. Nothing is known as to what, if anything, has happened in relation to the alleged co-accused.
36. Although the Appellant can recall the relevant events and put forward a defence, and culpable delay does not necessarily exclude extradition, I agree with Mr Hearn that the overall period since the alleged offence must be seen in the context of a straightforward allegation which is not one in relation to an offence of the utmost seriousness. Equally it has been a period in which there has been deeper entrenchment of the Appellant's family life in this country.
37. Against that background, and in particular the substantial culpable delay, I have concluded that the District Judge was wrong to conclude that it would not be oppressive for the Appellant to be extradited – in my view, in the particular circumstances of this case correctly viewed, it would be. I am equally clear that the District Judge was wrong to conclude that extradition was not disproportionate to the Article 8 rights of the Appellant and his family. Again, given the culpable delay, and the entrenchment of the Appellant's family life here during the period of that delay, and (with six children etc) the consequences of the interference with family life would, in my view, be exceptionally severe and thus disproportionate to their Article 8 rights. Against that background, and for the reasons argued by Mr Hearn, I am also persuaded that extradition would be disproportionate.

Conclusion

38. For the reasons set out above, this appeal is allowed.
39. I propose to deal administratively with any consequential applications.