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
		14 April 2016

MRS JUSTICE THIRLWALL:

1. This is an appeal against a decision by District Judge Grant on 27 November 2015 under section 26 of the Extradition Act 2003 to order the extradition of the appellant to Poland pursuant to a European Arrest Warrant issued on 9 May 2015 and certified by the National Crime Agency on 19 June 2015. The appeal is brought with the permission of Cranston J.
2. The warrant is an accusation warrant. The appellant is wanted in relation to offences of dishonesty: an allegation of conspiracy, and eight substantive counts of fraud. The conspiracy is summarised by Ms Iveson for the respondent thus:

"It is said that between March and September 1999, the Appellant as owner of a company called ROLEK, gave Symon Szalachowski power of attorney over the company, enabling him to execute VAT invoices on behalf of ROLEK for the lease of production lines that did not exist, which caused 6 leasing agencies to "dispose disadvantageously" of PLN 1,948,924.04 and attempted the same with two further leasing companies. Two further co-defendants representing two other companies are referred to as acting "jointly and in collusion" with the Appellant and Szalachowski with "pre-meditated intent."

3. There follow eight examples of Mr Szalachowski acting fraudulently pursuant to the power of attorney.
4. The framework list on the warrant is ticked for fraud and according to box C there is a maximum sentence of 10 years.
5. The warrant was issued on the basis of an enforceable decision issued by the district court in Gdansk on 10 February 2015.

Chronology

6. Criminal proceedings began on 14 September 1999. In January 2000 the appellant was interviewed as a witness. In May 2000 the police telephoned the appellant and summoned him to attend for further interviews on 2 and 13 July 2000. He did not attend. Eighteen months later, on 4 October 2001, a decision was taken to prosecute him. Ten years elapsed. On 18 February 2011 a European Arrest Warrant was issued by the regional court in Elblag in respect of another matter. This was subsequently cancelled because of limitation.
7. In 2013 the police informed the district court in Elblag that the appellant may be in the United Kingdom, and that court informed the prosecutor's office in Gdansk. It is not apparent why the information which was available to the regional Court in Elblag in 2011 was not shared before 2013.
8. In any event, it was not until 19 May of 2015 that a decision was taken to search for the appellant in respect of the matters which form the substance of the current European Arrest Warrant.
9. The appellant was arrested on 19 July 2015 and produced at Westminster Magistrate's Court. There was a substantive hearing on 20 November 2015 and extradition was resisted on the following grounds: first, that it would be unjust or oppressive, due to the passage of time; second that it would be disproportionate interference with the appellant's rights under article 8 of the European Convention on Human Rights; and third that it would be unjust or oppressive due to his mental condition.
10. All three grounds were rejected by the judge, who, in a reserved decision given on 27 November 2015, ordered the appellant's extradition.
11. Cranston J granted permission on 26 January in the following terms:

"Permission to appeal is granted.

Reasons: The District Judge decided that the applicant was not a fugitive. It is just arguable that the delay since the date of the alleged offending - 1999 - means the case falls within section 14. Despite a troubled life, the applicant is now settled and arguably extradition would be oppressive."

12. The appellant relies on two grounds of appeal: the first, pursuant to section 14 of the Act, that extradition would be unjust or oppressive due to the passage of time; second, pursuant to section 21 of the Act, that extradition would be a disproportionate interference with his rights under article 8 of the ECHR. Cranston J did not limit the scope of the appeal and Ms Iveson did not seek to suggest that the appellant was shut out from arguing article 8. She referred me to the decision of the Divisional Court in Lysiak v Poland [2015] EWHC 3098 (Admin) where the case was pursued under article 8 and under section 14 and the court first considered the test under article 8. I permitted brief argument in relation to article 8 but the focus of the appeal was on Section 14.
    
13. Section 27 of the Extradition Act reads as follows:

"(1) On an appeal under section 26...

(2)The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied."

14. Subsection 3 is relevant here:

"The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."

15. Mr Smith submits that the judge should have decided the question in respect of delay differently, and had he done so, he would have been required to order the appellant's discharge.
16. Section 14 of the Act provides:

"Passage of time

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), or

(b) become unlawfully at large (where he is alleged to have been convicted of it)"

17. The district judge found that the appellant was not a fugitive and was therefore entitled to rely on section 14. Mr Smith relied on S14(a). The obiter dicta of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 is well known. At pages 782-3 he says:

"…'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 overlapping."

18. In Gomes v Goodyear v Trinidad and Tobago [2009] UKHL 21, Lord Brown refers to Lord Diplock's statement in Kakis, and says:

"31... 'the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive'. That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough."

19. Ms Iveson, in her skeleton, which she developed elegantly in oral submission, says the offences were serious. The facts of this case do not get beyond the usual hardship experienced by any person who is extradited from this country in a situation where they have become settled. At paragraph 5 of her skeleton, she submits:

"5….that the district judge was correct to order extradition in this case. Although a considerable period has passed since the original offences were committed, the Appellant has made limited changes in his life since that time and the offences are serious."

Evidence before the District Judge

20. The appellant gave evidence and relied on a number of written statements which were not disputed. As to the offences he said he had become involved with Mr Szalachowski because he was the brother of his girlfriend. He said that Mr Szalachowski had asked him to register a company on his behalf. In return he would be given £200 per month. The appellant said the money helped pay their bills and kept him out of debt. "I also used the money to fund my alcohol and drug consumption." He became suspicious that something unlawful was happening when he began to receive letters from the tax office and the police. He attended voluntarily for an interview with the police and explained that Mr Szalachowski ran the business and he had power of attorney. At that stage the appellant was 24 and was studying at university.
21. He left Poland in early 2001, having been told worrying stories by the police and others about Mr Szalachowski. He travelled to Germany and then to the United Kingdom, arriving on 22 January 2001. He has not returned to Poland since then. He has no contact with anyone in Poland, although his brother still lives there.
22. The appellant was homeless in the UK for a number of years but began a relationship with a woman with whom he had a son who was born in January 2006. In 2007 his partner's daughter accused him of rape. He was arrested and interviewed. He said the allegation was false. The police investigated and concluded that no further action should be taken against him. As a result of the accusation, he now has no contact with his former partner, nor with his son.
23. Apart from this period of stability, the rest of his life in the United Kingdom was unstable and particularly affected by his alcoholism. As to his early life he gave evidence that his father was an alcoholic who died when the appellant was very young. His mother had her own difficulties. The family was dysfunctional.
24. His life took a significant turn for the better in 2010. A number of statements from residents of Marlow show that he has a network of good friendships which he has forged in the local community. This ability to make friendships is the result of profound change in his behaviour which began when he enrolled in Alcoholics Anonymous; in a detailed statement his AA mentor has set out the important steps that the appellant has taken to deal with his serious alcohol addiction. There are long periods in his life when he is alcohol free. At times of crisis, like the present, he sometimes drinks. But the overwhelming thrust of the evidence is of a significant change in his conduct and in the quality of his life as a result of addressing his fundamental difficulty with alcohol.
25. The appellant has employment at Marlow Rugby Club. He began as a part time groundsman in 2010 and became a full time groundsman in 2011. He was sponsored by the club on a City and Guilds course at Berkshire Agricultural College. He passed the course with distinction. The president of the rugby club, Mr Stone, provided a statement in support of the appellant. He, with the General Manager of the club, and several others, attended before the District Judge and before me in support of the appellant. Mr Smith submits that Mr Balewski is now fully integrated into his local community. He has settled employment and he has good accommodation. He is well known and popular.
    

The judgment

26. The relevant section begins at page 27. The judge identifies the relevant authorities. In addition to those to which I have already referred, he also refers to the decision in La Torre v Government of Italy [2007] EWHC 1370. At page 29 he says:

"Because I did not agree with Ms Iveson that the requested person is a fugitive, I went on to consider whether his extradition would be either unjust or oppressive because of the passage of time.

I concluded that there was no obvious risk of prejudice to the trial itself if the requested person is returned to Poland. The issue for the trial is a discrete one and Mr Balewski is as able today to give evidence about his relationship with Mr Szalachowski and his state of knowledge about the affairs of the company in 1999 as he was then."

27. He concluded, I infer, that the extradition was not just. He went on to consider oppression:
    

"The requested person's life in the United Kingdom has been far from a happy one. He has had to deal with broken relationships, an allegation of rape in 2007, problems with his mental health and a difficult relationship with alcohol. However, he has a settled job in the country and knows a number of people who support him."

He went on to conclude that

"a decision to extradite the requested person despite the years that have intervened would be neither unjust not oppressive under section 14".

28. A District judge is not required to go with a fine-tooth comb through every submission that is made in respect of the effects of delay. However, the summary of the appellant's case on the change to his circumstances since 2010 occupies only one sentence in his judgment. It is so shortly expressed as to demonstrate that it was not given the importance that should have been accorded to it. This was an error by the District Judge and so I have considered this aspect of the case afresh.
    
29. I accept the submission that hardship does not equal oppression but there must come a point when hardship is so severe as to constitute oppression. The question for me is whether that has happened in this case. The District Judge had observed in his opening paragraphs that the appellant was assisted at the hearing by a Polish interpreter, and then the following:

"He was assisted by a Polish interpreter although he speaks excellent conversational English. It seemed at times more difficult for Mr Balewski to express himself in Polish than in English but I urged him to speak through the interpreter because of the risk of a misunderstanding about a legal or technical term."

30. That was important evidence of the level of integration into English life that Mr Balewski had achieved, and the extent of his separation from Poland.
    
31. In the context of the appellant's life the change that he has achieved is fundamental and important. The evidence also shows that he is psychologically vulnerable and his hard won progress would be at risk were he to return to Poland where he has no support network. Were he to be extradited, I am satisfied there would be a decline and a spiralling into his old ways.
32. Ms Iveson submitted that were he to be returned, the hardship would be the same as that experienced by any person subject to extradition. I disagree. The changes that he has managed to achieve in the last 5 years are impressive, but they are not so embedded that were he to return to Poland for these proceedings he would be able to come back and pick up where he left off.
33. This is, as both counsel submitted at different stages a finely balanced case. I have considered whether any part of the delay is culpable. I do not accept that delays in relation to the Schengen enquiries assist the appellant.
34. There were two significant periods of delay in the latter part of the chronology. The first was from 2011-2013; the second from 2013-2015. There is no explanation for the delay between 2013 and 2015. As Ms Iveson submitted realistically, it may simply be the result of pressures upon the courts in Poland. But even if there are such pressures, a delay of 2 years is culpable, particularly in the context of a pre-existing delay of some 14 years. As to the preceding period, it had been said in the further information that when the whereabouts of a person are unknown, the warrant cannot be issued under Polish law. But a warrant was issued in relation to another matter in 2011 so that cannot be the explanation. Ms Iveson suggests, probably realistically, that one part of the prosecuting authorities or the courts just did not communicate with the other. That may be so but it does not excuse the delay.
35. Even if, of the 4 year period of unexplained delay, only the second half were culpable (and in my judgment that would be very generous to the Polish authorities) that period of two years occurred at precisely the time that the appellant was effecting real change in his life and making a useful life in Marlow. In my judgment the total delay, including a period of at least two years of culpable delay in the circumstances of this case make it oppressive to extradite the appellant and the District Judge's decision to the contrary was wrong.
36. In the circumstances, there is no need to consider the case under article 8. Were it necessary to do so, I would find that extradition in this case would be disproportionate.
37. The appeal is allowed, and subject to any submissions from the respondent, I order the discharge of the appellant.