England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal under section 26 of the Extradition Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/02/2016

Mr Justice Sweeney :

Introduction

1. The Appellant, who is now aged 40, appeals under s.26 of the Extradition Act 2003 ("the EA") against the decision of District Judge Grant, made in the Westminster Magistrates Court on 29 January 2015, to order his extradition to Poland (a Category 1 territory) pursuant to a conviction European Arrest Warrant ("EAW") issued by the Regional Court of Krosno on 31 March 2009, and certified by the National Crime Agency ("NCA") on 1 October 2014, to serve approximately 9 months of an original sentence of 1 year 3 months' imprisonment which became final on 28 January 2004 in respect of three offences – all of which were committed in Ustrzyki Dolne in April / May 2003.
2. Taking them in chronological order, the offences were as follows:

i) Compelling another person to conduct himself in a specified manner, contrary to Article 191 of the Penal Code, on 11 April 2003 – when he, acting with another, used force (kicking and punching) and the threat of further force to compel Marcin Jaworski to give them money for the purchase of alcoholic drinks.

ii) Infringing privacy, contrary to Article 193 of the Penal Code, on the night of 23 / 24 May 2003 – when he and another broke a window and got into the house of Kazimiera Kuzinska.

iii) Battery, contrary to Article 158 of the Penal Code, on the night of 25 / 26 May 2003 – when, acting together with persons unknown, he punched and kicked the victim Krzysztof Kuzinski (the son of Kazimiera Kuzinska) and then threw him into a river and stood on his back to hold his head under the water. In consequence the victim suffered a number of injuries which resulted in an impairment to his health lasting more than 7 days and exposing him to an immediate danger of the loss of his life or grievous bodily harm.

3. In this jurisdiction those offences equate, respectively, to robbery, criminal damage, and at least assault occasioning actual bodily harm.
4. There were two original grounds of appeal, namely that the District Judge erred in finding that:

i) The Appellant's extradition would not be oppressive because of the passage of time (s.14 EA).

ii) Extradition would not be disproportionate with the Appellant's Article 8 rights (s.21 EA).

Background

5. The broad history in relation to the underlying Polish proceedings is as follows:

i) The Appellant was arrested and held in custody from 25 June 2003 to 19 November 2003.

ii) On 25 June 2003 the Appellant was informed of his obligations to appear before the relevant authorities when summonsed and to notify the court of any change of address, and signed a document confirming that he had been so informed.

iii) At some point the Appellant pleaded guilty to the offence of battery.

iv) On 19 November 2003 the Appellant's trial in relation to the other offences began in the District Court of Lesko and he gave evidence. He was notified of further hearings to be held on 4 & 23 December 2003 and 12 January 2004 and was then released – in the knowledge that the Court would judge his criminal responsibility.

v) The Appellant thereafter stopped living at home and failed to attend all the subsequent hearings.

vi) On 20 January 2004, he was convicted in his absence and sentenced to 1 year 3 months' imprisonment.

vii) The Appellant did not appeal and thus the judgment against him became final on 28 January 2004 – with, given the time served on remand, approximately 9 months' imprisonment remaining to be served.

viii) On 18 June 2004 the Appellant failed to answer a summons to Sanok Prison to serve his sentence.

ix) On several occasions the District Court requested the local police to bring the Appellant before it, but efforts to find the Appellant were unsuccessful – since he had left his address and the address where he was residing was not known.

x) On 20 February 2009, a national arrest warrant and a search order were issued by the District Court of Lesko in relation to him.

xi) As indicated above, the EAW was issued on 31 March 2009. It was translated into English on 15 April 2009. A diffusion notice was sent by Interpol Warsaw to the NCA on 23 September 2014 – after which checks revealed that the Appellant might be present in the UK. Hence the EAW was certified on 1 October 2014.

6. The Appellant was arrested in Bradford on 7 October 2014. The initial hearing took place the following day, when the Appellant was remanded in custody. In a letter dated 14 November 2014 (signed by Judge Krysa) the Respondent, in answer to some sixteen questions, provided evidence as to the underlying Polish proceedings – which included the erroneous assertion that the Appellant had been remanded in custody from 25 September 2003 to 19 November 2003 (i.e. 56 days) and that the remaining sentence to be served was thus 1 year, 1 month and four days. That was corrected in further evidence provided by the Respondent in a letter dated 8 December 2014 (and also signed by Judge Krysa) – which indicated (as recorded in [4] above) that the Appellant had actually been remanded in custody from 25 June 2003 to 19 November 2003, and that on 25 November 2014 the District Court of Lesko had ordered that the whole of that period would count towards the service of his sentence. A copy of the Court Order, signed by Judge Lukasik on 8 December 2014, made clear that the decision was final and binding as of 3 December 2014.
7. The full hearing, during which the Appellant gave evidence, took place on 29 January 2015. Two issues were raised on the Appellant's behalf, namely the passage of time and Article 8 of the ECHR.
8. In his proof of evidence, which served as his evidence in chief, the Appellant asserted that he had been in custody from June 2003, throughout his trial, and when sentenced on 20 January 2004, and that he had remained in custody until April 2004 - when he had been told that he had completed his sentence and had been released. Thereafter, he said, he had gone home for about two weeks and had then been offered a job in Bradford. In the result, he had come to this country in April / May 2004 and had been here ever since – obtaining a National Insurance number in 2005. His wife and teenage children lived in Italy. During the course of cross-examination, however, the Appellant accepted that on 25 June 2003 he had been informed of his obligations to attend court and to notify any change of address and that he had been released from custody in the winter of 2003/4 (as opposed to April 2004), and that his release could have been in November 2003 (as alleged by the Respondent) or January 2004.
9. As to the passage of time, the District Judge found the Appellant to be an unreliable witness as to both time and facts. In view of the content of the information provided by the Respondent on 14 November 2014 and 8 December 2014 (above) he concluded that the Appellant had been wrong to say that he was released from custody in April 2004 and that he believed that he had served his sentence in full. Rather, he found that the Appellant had been remanded in custody for a time during the Polish proceedings and that he had then been released prior to the completion of the proceedings - but with full knowledge of the subsequent dates upon which he was required to attend court. Against that background, the District Judge concluded that the Appellant was a fugitive, and that therefore there was no merit in his reliance on the passage of time.
10. As to Article 8, having referred to the leading cases of Norris v Government of the United States of America (No.2) [2010] UKSC9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC25, and to the principles derived from them, the District Judge then carried out a balancing exercise. He weighed, on the one hand, the fact that the Appellant had been living in this country for 11 years; that the Appellant had established a working life here and occasionally sent money to his wife and two children in Italy; the unexplained delay in the issue of both the domestic warrant and the EAW (albeit tempered by the fact that the Appellant had left the jurisdiction, his whereabouts were unknown, and his nearest family lived in Italy); and the fact that there was not much more time to serve (and even less if the Appellant had to wait for any appeal to be determined). The District Judge then weighed, on the other hand, the fact that the first and third offences were by no means trivial, and the importance of this country complying with its international obligations. In the result, he concluded that extradition would be proportionate with the Article 8 rights of the Appellant and his immediate family.

The correct approach

11. At the appeal hearing there was considerable argument as to the correct approach on an appeal under s.26 of the EA, and in particular as to the correctness or otherwise of the approach to Article 8 issues indicated in Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin). On behalf of the Appellant, Mr Williams argued that, against the background of the court's powers on such an appeal, as provided in s.27 of the EA, the correct approach was that identified by Lord Neuberger at [93] & [94] of the judgment in Re B (A Child) (FC) [2013] UKSC 33.
12. It is unnecessary to set out the argument in detail as the position in relation to Article 8 in the context of extradition proceedings has since been resolved by the decision of the Divisional Court (presided over by the Lord Chief Justice) in Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274 (Admin).
13. As to hearings at first instance the Court ruled, amongst other things, that:

i) 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] 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).

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

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

(b) 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].

(c) 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].

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

(e) 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].

(f) 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)].

(g) 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].

14. As to the approach on appeal, the Court endorsed (at [23]) 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 that the application of that approach was likely to be more consistent by use of the analysis of Lord Neuberger at [93] & [94] in Re B (above). Accordingly, in this context, the single question now for an appellate court is whether or not, applying Lord Neuberger's analysis, the Judge made the wrong decision. It is only if he / she has done so that an appeal can be allowed. Findings of fact, especially when evidence has 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 was wrong.

The first ground - s.14 EA

15. Section 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 time since he is alleged to have committed the extradition offence…"

16. On the Appellant's behalf Mr Williams reminded me of the familiar principles to be derived from the leading authorities – including Kakis v Government of the Republic of Cyprus [1978] 1WLR 779; Gomes v Government of Trinidad and Tobago; Goodyer v Government of Trinidad and Tobago [2009] UKHL 21; La Torre v Italy [2007] EWHC 1370 (Admin); and Government of the United States of America v Tollman and Tollman [2008] EWHC 184 (Admin). He also reminded me that, by virtue of s.26(3) of the EA, an appeal can be brought on a question of law or fact.
17. Against that background, and whilst conceding that the District Judge had heard evidence and was thus entitled to some deference, Mr Williams submitted, in summary, that:

i) The District Judge had erred in finding that the Appellant was a fugitive, which was a finding of fact that the court should re-determine - if necessary via an order for live evidence under CPR 52.11-(2)(a).

ii) Albeit in circumstances of mutual trust, the District Judge had failed to consider, or to sufficiently consider, the errors in the information provided by the Respondent.

iii) In particular, he ought to have taken into account that the information provided by the Respondent in the letter dated 14 November had been wrong as to the date when the Appellant had first been held in custody; that that had only been corrected after the service on the Respondent of the Appellant's proof of evidence; and that the correction had confirmed the Appellant's account that he was first held in custody in June 2003.

iv) Against that background, the District Judge ought to have found that the Applicant had been truthful as to the overall time that he had been detained in custody and as to his reasons for leaving Poland.

v) The District Judge had provided no reasoning for his finding – beyond saying that he had been released prior to the completion of the proceedings against him and with full knowledge of the dates on which he was expected to attend.

vi) In addition, there was no specific finding that the Appellant did not honestly believe, whenever he was released, that he had served his sentence.

18. On behalf of the Respondent, Mr Gibbins submitted that the District Judge was perfectly entitled, as he did, to conclude that the Appellant was an unreliable witness; to prefer the Respondent's account; and thus to conclude that the Appellant was a fugitive. In particular:

i) The Appellant's change of account as to when he had been released provided, even if taken in isolation, a proper basis upon which to conclude that he was an unreliable witness.

ii) One wrong, but corrected, date in the information provided by Judge Krysa did not render the whole of the evidence provided by him inaccurate or unreliable, and he had always said that the Appellant had been released on 19 November 2003 (which was further confirmed in the Order made by District Court of Lesko on 8 December 2014).

19. I have no doubt at all that the District Judge was entitled, on the evidence, to be sure that the Appellant was both an unreliable witness and a fugitive – indeed that he was right to so conclude. The cross-examination of the Appellant clearly showed him to be an unreliable witness. As the District Judge found, the evidence (upon which he was entitled to rely notwithstanding the error in the letter of 14 November 2014) showed that the Appellant had been released on 19 November 2003 (prior to the conclusion of his trial); that he knew the dates upon which he was required to attend court; and that he had failed to attend on any of those occasions – including when he was convicted and sentenced. In those circumstances, there was no possibility of the Appellant believing that he had served his sentence. Thus the District Judge's conclusion that the Appellant was a fugitive is unassailable. Even if I had re-determined the matter myself afresh, it would not have been necessary (given that I have the evidence provided by the Respondent and the Legal Adviser's notes of the extradition hearing) to hear live evidence and I would have reached the same sure conclusions.
20. Equally clearly this is not a rare case of the type postulated in Gomes (above) in which, despite the fact that the Appellant has been found to be a fugitive, it is nevertheless necessary to go on to consider the passage of time in the context of s.14 of the EA. In those circumstances it is unnecessary to further set out the arguments in relation to delay at this stage, but rather to do so when dealing with the second ground.
21. At all events, the first ground fails.

The second ground – s.21 EA

22. Against the background of the authorities to which I have already made reference in [10] & [16] above Mr Williams, on behalf of the Appellant, submitted that the District Judge had erred in concluding that extradition would be proportionate with the Article 8 rights of the Appellant and his family.
23. It was common ground that, notwithstanding any finding that the Appellant was a fugitive, it was necessary to weigh delay as a factor in the Article 8 balancing exercise.
24. In that regard Mr Williams variously submitted that:

i) There was an unexplained culpable delay of some 5 years between the sentence of the Appellant in January 2004 and the issue of the national arrest warrant in February 2009.

ii) There was a further culpable unexplained delay of some five-and-a-half years between the issue of the EAW in March 2009 and its certification in October 2014.

iii) Culpable delay was capable of weighing heavily in an Article 8 balancing exercise in the case of a fugitive – as to which he drew my attention to Tomaszewicz v Poland [2013] EWHC 3670 (Admin) and Slawonir Oreszczynsi v Krakow District Court, Poland [2014] EWHC 4346 (Admin).

iv) The District Judge had found that the delay was unexplained, but had then failed to sufficiently weight it as a factor.

v) The Appellant had lived openly in the United Kingdom; he had applied for a National Insurance number in 2005; he had worked here for some 10 years and was of effective good character - with only one blemish on his record, namely his conviction for a number of driving offences in April 2007.

vi) The offences were not trivial, but were not serious either.

vii) Given that the Appellant had been in custody since his arrest in October 2014, and the Polish early release provisions (albeit not automatic - see Chmura v Poland [2013] EWHC 3896 (Admin)), there was only a small time remaining before the Appellant would be released.

25. In [19] – [37] of his skeleton argument on behalf of the Respondent Mr Gibbins drew attention to a number of authorities in relation to the passage of time and Article 8. In particular, in addition to those already mentioned above: Zielenski v District Court, Legnica [2007] EWHC 2645 (Admin) and R on the application of Blazejewicz v Circuit Court in Torun, Poland [2014] WL 2807812 (in both of which it was indicated that the mere fact that delay is unexplained does not make it culpable); Glica v Regional Court of Kielce, Poland [2014] EWHC 1529 (Admin) (in which it was underlined that delay weighs more heavily in the balance if it is found to be culpable); Wolack v Regional Court on Gdansk, Poland [2014] EWHC 2278 (Admin) (in which Collins J emphasised the caution with which the Court approaches allegations of culpability of the requesting authority state); and Steblins v Government of Latvia [2006] EWHC 1272 (in which it was underlined that each case turns on its own facts).
26. As to delay, Mr Gibbins accepted that he could not explain the totality, but submitted that:

i) The evidence showed that from 2004 onwards there had been efforts to locate the Appellant in Poland but that those had come to nothing because, as it turned out, the Appellant had fled to this country.

ii) The domestic warrant was issued in February 2009 and the EAW was issued only shortly thereafter on 31 March 2009.

iii) The fact that the warrant had been translated into English on 15 April 2009 could indicate (although there was no evidence about it) that there was some information that the Appellant was in an English speaking country – but he could not assist (because certification was then dealt with by SOCA rather than the NCA) with whether anything had been transmitted here at that stage and, if so, why there was no certification then. In any event, the Court should be cautious before inferring culpability.

27. As to the balancing exercise generally, Mr Gibbins submitted that:

i) The robbery and the assault were both serious offences (each with a number of aggravating features) and in this country each would almost inevitably have attracted a custodial sentence with a starting point of a year or more.

ii) Such delays as had occurred were principally due to the Appellant's absconding.

iii) Whilst the Appellant had only one previous conviction in this country the suggestion that he was of effective good character had to be tempered by the fact that he had lied in his evidence during the extradition hearing.

iv) The Appellant's ties in this country were very limited. His wife and children were in Italy and were self sufficient – with the Appellant only sending money occasionally for his daughter's education.

v) Whilst early release from the sentence was possible, it was not an entitlement, and the length of the remainder of the sentence did not render extradition disproportionate.

28. It is clear from his judgment that the District Judge had well in mind the principles enunciated in Norris (above) and HH (above), and that he performed the careful balancing exercise that he set out. Proceeding in accordance with Celinski (above), and taking into account the competing factors and arguments summarised above, I have no doubt that the District Judge reached the right decision. 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 who have sought to avoid the service of a custodial sentence. It seems to me that, in this particular case, and even if there was some, or even substantial, culpable delay, those two factors alone greatly outweighed the matters relied upon by the Appellant in the balancing exercise. In addition, the decisions of a judicial authority of a Member State should be accorded a proper degree of mutual confidence and respect, and two of the offences were serious.
29. Accordingly, the second ground, as originally formulated and argued, would also fail.

Further Argument

30. However that is not the end of the appeal. It is a matter of great regret that, because of administrative errors (for which I must apologise profusely) it has taken so long for this judgment to be handed down. In the interim, the Appellant has served the remainder of his sentence on remand, and was released some time ago.
31. Against that background Mr Williams, on the Appellant's behalf, draws my attention, in a further skeleton argument, to the principles identified in Newman v Poland [2012] EWHC 2931 (Admin), and in the unreported decision of Ousley J in Danelius (originally one of Aleksynas and Others [2014] EWHC 437 (Admin)), and submits that it would now be disproportionate and / or an abuse of process for the Appellant to be extradited.
32. On behalf of the Respondent Mr Gibbins, also in a further skeleton argument, accepts that had the position at the time of the appeal hearing been as it is now, the court would have found that extradition would be disproportionate and/or abusive and would thus have allowed the appeal, and that it follows therefore that the appeal must be allowed.
33. Albeit that it would have been abusive if the Respondent had continued to press for extradition, it is simplest to decide the appeal upon the basis that it would indeed now be disproportionate to the Appellant's Article 8 rights to order his extradition. Accordingly the second ground, as re-formulated, succeeds.

Conclusion

34. For the reasons set out at length above, this appeal (as originally argued) would have been dismissed. However, in the circumstances as they now are, and for the reasons set out immediately above, it is allowed.