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
		15 June 2016

MR JUSTICE COLLINS:

1. This is an appeal against the decision of District Judge Coleman given on 11 January this year upholding the request from the Polish Judicial Authority that the appellant be returned to Poland in order to face a charge that between 7 May 2004 and 26 April 2005 he misappropriated books to the total sum of over 230,000 Zlotys which were pledged as collateral for a cash loan which he received on 7 May 2005.
2. The case against him was clearly that he had disposed of the books and that he had done that dishonestly. At the relevant time he owned a bookshop and the books in question were the stock of that shop. He got himself into financial difficulties and obtained a loan from the bank with the books as collateral but, by the time he obtained the loan, he must have appreciated that he could not go on trading because very shortly thereafter the bookshop was closed and he left the country and came to the United Kingdom.
3. In his statement before the District Judge he said that he had contacted the bank before he left and that he had left the books in a particular school, sealed and secured in boxes. He had informed the bank of this and he assumed that the bank would collect the books and dispose of them and thus the debt would be met.
4. As I say, the case against him was that he had disposed of the books and the fact is that, on the case against him presented by the judicial authority there is no question of him having left the books for the bank to receive the collateral for the loan.
5. The District Judge, in my view, wholly unsurprisingly, did not accept the account which I have referred to given by the appellant. She stated that she did not find him to have been an entirely truthful witness. She goes on:

"He would have the court accept that he is entirely innocent of any dishonesty or wrongdoing, that he came to the United Kingdom with his wife and two sons to begin a new life. The evidence of the Judicial Authority however is quite different. The information states that the Received Person sold the books which had been pledged to the bank and then left the UK without notifying the bank of his intention to do so without informing the bank of where this could be found."

6. Then she considered whether he was a fugitive and her findings were these:

"Fugitive status needs to be proved to the criminal standard by the Judicial Authority. What is clear to me is that the Requested Person left Poland whilst subject to the legal obligation he had made with the bank, with a large sum of money to be paid still outstanding, and under circumstances which were suspicious and suggestive of dishonesty. The Requested Person must have known that he would be pursued by the bank for the outstanding debt and his suggestion that he believed the bank would locate and sell the books is not one I accept. My finding is that he fled Poland to escape the consequences of his actions. He is unlawfully at large."

7. The submission made essentially is that that is insufficient for proof that he had left in the knowledge that he was to be prosecuted for a criminal offence. The mere fact that he left owing money is not of itself sufficient and it was the way that that was expressed that persuaded Openshaw J that the point was arguable.
8. However, it is clear from the way that the District Judge sets it out that the circumstances were suggestive, as she put it, of dishonesty and indeed if it is the case, as alleged, that he had sold the books then that clearly would have been dishonest because he would have known that he was depriving the bank of the possibility of receiving the amount which had been lent and which was based upon the security of the books.
9. Thus, on any view, the criminal offence would have been committed and indeed, by Polish law, there is evidence that in this sort of situation the law is that the bank becomes the owner of the books and thus there is a straightforward case of theft.
10. It may well be that the District Judge did not express herself as clearly as perhaps she should and, as I say, I entirely accept that the mere fact that someone leaves the country in the knowledge that he owes money does not by itself mean that he must have been a fugitive because he was aware of the likelihood of criminal proceedings. But the situation here, on the finding of suggestion of dishonesty and indeed the clear indication that once one rejects the account that he left the books with the bank, it seems to me that the finding of the District Judge that he was a fugitive was not one that can be said to have been wrong.
11. The point relied on understandably is delay because there has been a substantial period of time. The circumstances were set out by the Judicial Authority in further information that was provided. Essentially, the history is that the police were notified by the bank of an offence in July 2006. That being so, it is hardly consistent with the books having properly been left and the bank having been notified for them to collect in order to sell them to meet the loan.
12. In October 2006, the decision to prosecute was taken but the proceedings were suspended because the appellant could not be found. What is relied upon by Ms Hill is that in November 2008, he said that the authorities were aware that he was probably in the United Kingdom and it is said that that should have triggered the issue of a warrant.
13. "Somebody is probably in this country" is not generally sufficient. I must bear in mind that the issue of a warrant is only normally to be found when there is positive information that the individual is in a particular country. The probability is not normally enough to justify the issue of a warrant.
14. Enquiries did not establish, it seems, any further positive information and he was entered on the Schengen Information System in February 2012. It is not entirely clear what is covered by the Schengen Information System and whether this country is part of that system. It is certainly not part of the Schengen arrangements so far as open borders are concerned, but that does not mean that it is not a party to the balance.
15. However, it seems that it was not until November 2014 that information was received from the Polish Embassy in London in relation to the likely whereabouts of the appellant and that led to the issue of the warrant on 3 March 2015 and his arrest on 30 June.
16. Two questions arise. First, even if he was not a fugitive, is that history sufficient to justify section 14 being applied in his favour? The District Judge decided that it was not on the basis that, albeit the offence committed was a long time ago, there is no indication that the witnesses would not be available or that it would be difficult for the appellant to put forward his case in defence.
17. Since I have upheld the finding that he was a fugitive, section 14 does not avail but I am not persuaded that the District Judge was wrong to take the view that even if it did arise in his favour he could take advantage of it. The question, therefore, is whether the delay was culpable and the effect that that might have upon the proportionality of the return. He, of course, has his family here but there was no great reliance as Article 8 as opposed to section 21(A) of the Act.
18. It is clear that this is, as I have said, a serious matter and clearly the custody threshold is met. Whether there would be a custodial sentence which was not suspended is another matter. As one knows, the Polish system is such that custodial sentences are rather more common than they might be in this country.
19. Be that as it may, it seems to me that in all the circumstances, the delay cannot be regarded as culpable and is not sufficient to indicate in all the circumstances that it would be disproportionate for the appellant to be returned in order to face this prosecution. If his case is correct and if he has not been in any way dishonest, then he will not be convicted. If he is convicted, then it will be a matter for the court there to decide on a penalty but equally a matter for the court there to decide whether the offence is made out. As it is, I must dismiss this appeal.