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 s.26 of the Extradition Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 November 2016

Mr Justice Supperstone :

1. The Appellant appeals against the decision of District Judge Williams made on 13 May 2016 to order his extradition to Poland to serve a sentence of one year imprisonment for an offence of attempted burglary committed on 7 March 2004. The European Arrest Warrant ("EAW") was issued on 23 November 2011 and certified by the National Crime Agency on 6 February 2012. The sentence passed was suspended, however the Appellant committed a further offence in 2005 and it was activated in 2008. He became liable to serve the sentence in July 2008 but he did not do so.
2. The circumstances in which the offence for which he is sought was committed is set out in Box E in the EAW:

"On 7 March 2004 in Torun, acting jointly and in accord with another person, he attempted to commit the theft with burglary into the vehicle of Fiat 126p make of the registration number CCHK357, after earlier opening it in the unknown manner the locks of the vehicle's door, he entered its interior from where he took in order to appropriate the car radio player, electrical drill, and the electrical angle grinding machine of the total value of 900PLN, however he failed to achieve the intended goal, for he was caught red-handed by the aggrieved person, with which he acted to the detriment of Janusz Kalinowski."

The offence is described as "attempting theft with burglary – Article 13 paragraph 1 of the Penal Code Article and Article 279 paragraph 1 of the Penal Code".

3. The single ground of appeal is that extradition would be disproportionate in the light of the Appellant and his family's Article 8 rights.
4. In his judgment the District Judge ("DJ") noted (at para 17) the relevant authorities to which he should have regard, being the decisions of the Supreme Court in Norris v Government of the United States of America (No.2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin).
5. However Ms Draycott, who appears for the Appellant, and Ms Hinton, who appears for the Respondent, are agreed that the DJ applied the wrong test. At para 17(g) of the judgment the DJ said:

"The public interest in extradition would outweigh the Article 8 rights of the family unless the consequences of the interference with family life were exceptionally severe." (Emphasis added).

At paragraph 25 the DJ said:

"I cannot say that the consequences for this family (or any other member of it) will be exceptionally severe."

6. In HH Baroness Hale (at para 8) concluded (having regard to Norris):

"(7) … 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." (Emphasis added).

7. Baroness Hale made clear (at para 32) that "the test is always whether the gravity of the interference with family life is justified by the gravity of the public interest pursued" (see also para 8(2)).
8. The single question for the appellate court is whether or not the district judge made the wrong decision (Celinski at para 24).
9. Ms Draycott submits that whilst the Appellant accepted that he was a fugitive, the DJ failed to give sufficient weight to the age and nature of the offending, the Appellant's rehabilitation and law-abiding life in the UK and the private and family life which he has developed over the past ten years.
10. Further Ms Draycott submits that the DJ did not carry out a careful balancing exercise. She contends (1) he failed to properly consider the relatively minor nature of the offending; (2) no mention was made of the Appellant's changed character; and (3) and no mention was made of the delay. The offence in respect of which the Appellant's extradition is sought was committed 14 years ago and there was a 4 year delay between the execution of the warrant and his arrest, despite the fact that he has lived at the same address in the UK since 2011.
11. The DJ said that the Appellant was convicted of an offence of theft (judgment, para 4). That is not correct. The offence was, under Polish law, "Attempted theft with burglary" (see para 2 above). Accordingly he was convicted of an attempted theft, not the completed offence. However I do not consider the misdescription to be material.
12. Any suggestion that the offence was not sufficiently serious to warrant the sentence imposed cannot, in my view, succeed. In Celinski the court observed (at para 13), in relation to conviction appeals, that each Member State is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second-guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide. A court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence. The DJ noted these points at para 17(j)(vii) and (viii) of his judgment.
13. In relation to delay, the DJ said (at para 18):

"The Requested Person has knowingly kept the authorities in Poland at arms length and he is [a] fugitive. He has no basis on his own account to complain about their pursuit of extradition in his case. He is entirely the author of his own misfortune."

14. Ms Draycott suggests that some delay should have been considered by the DJ when conducting the balancing exercise. The DJ was well aware of the material dates. I do not accept in the circumstances where it was the Appellant's evidence that he was last in Poland in 2008 or 2009, and that he has always been aware of the sentence, but he wanted to postpone it (see judgment at para 12(e) and 13(b)) that he can have any real complaint about the delay that occurred.
15. The DJ thought that the Appellant "was entirely credible and reliable in his evidence" (judgment, para 16). He recorded his evidence at paras 12-14 in his judgment, and that of the Appellant's wife at para 15. Accepting that evidence "as providing a sound factual basis for the consideration of the question posed by s.21(1) of the Act (para 16), the DJ noted the principal factor in favour of extradition (at para 18), and then (at paras 19-23) he conducted in my view a careful analysis of the factors against extradition in this case.
16. The DJ knew that the Appellant was 23 when the offence was committed and that he is now 35. He accepted his evidence (see para 15 above) and that he had not committed any offences since, and that he is now a different person with a family. His main concern is his children with whom he has a very good relationship. Because the Appellant is the only person in the family who works the DJ appreciated the financial hardship for the family, including the risk of loss of accommodation. He took into account the emotional harm that would be caused to the Appellant's two daughters by their enforced separation from their father (para 19). However, on the evidence before him, the DJ considered that "there is no reason to believe that either child is any more or less vulnerable than any other child of their age in similar circumstances, but any child facing what these children may have to face is likely to suffer significant emotional harm" (para 20).
17. The DJ concluded that this is a case where the inevitable hardship which will result from extradition is far outweighed by the strong public interest in honouring arrangements for extradition (para 28).
18. I do not consider that extradition would be disproportionate in light of the Appellant and his family's Article 8 rights. In my judgment the DJ did not make the wrong decision.
19. Accordingly this appeal is dismissed.