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
		16 December 2016

Mrs Justice Lang:

1. The Appellant appeals against the decision of District Judge Ikram (hereinafter "the DJ"), made at the Westminster Magistrates' Court on 30 June 2016, ordering his extradition to Poland to stand trial on charges of fraud, under the Extradition Act 2003 ("EA 2003").
2. Permission was granted by Supperstone J. on 29 September 2016 because of the unexplained delay of 12 years since the alleged offences were committed.

The alleged offences and the EAW

3. The Appellant is a Polish national, aged 59, who owned and operated a Bar in Poland. Following threats from an organised criminal gang demanding protection payments, he moved to the UK in October 2004 where he has been living and working as a chef ever since. His wife and child joined him in the UK 6 months after his arrival. In 2006, his daughter and her husband and child also moved to the UK and they reside with the Appellant and his wife.
4. An accusation European Arrest Warrant ("EAW") was issued by the Regional Court in Torun, Poland on 4 March 2016. It was certified by the National Crime Agency on 13 April 2016 but the name of the judicial authority was erroneously stated to be the District Court in Torun, which was the court that issued the domestic warrant. I do not consider that to be a material error which is capable of invalidating the certificate.^[1] The EAW stated that, between 12 May and 23 June 2004, the Appellant committed an offence of fraud. He issued five false employment certificates in his company to two named individuals who used the certificates to obtain five bank loans totalling some 20,389.34 PLN (worth approximately £2,976 at the relevant time). These individuals allegedly passed the funds on the Appellant, in exchange for a fee. Under Polish law, the offence of "fraud" carries a maximum sentence of 5 years, and "credit fraud" carries a maximum sentence of 8 years.
5. The Appellant contests the allegations, stating that although he signed the certificates of employment to assist these individuals to obtain loans, there was no element of personal gain. Mr Zycki had to pay for his daughter's wedding and Mr Ucinski had financial problems. He assumed they would repay the loans and heard no more about the matter thereafter.
6. The decision upon which the warrant was based was an order by the District Court in Torun, dated 21 June 2013, that the Appellant be detained on remand for 14 days, as a preventive measure. The warrant stated in Box F that the Polish authorities had issued an order for the Appellant's arrest on 21 June 2005. It explained that 'However, due to the need to supplement the description of the offence W. Kazaniecki is charged with, the Prosecutor quashed the application of the detention on remand with a decision of 17 June 2013….".
7. Further information was provided by the Regional Prosecutor dated 23 May 2016. It explained that the Appellant was never arrested or questioned about the alleged offence, and he was not contacted by the authorities in any way. He was not prevented from leaving Poland and there was no evidence that he was avoiding responsibility for the offence. By order of 12 April 2005 the police were requested to search for the Appellant. When they did not find him, a "wanted warrant" was issued on 23 June 2005. This warrant was revoked in 2013, and a fresh warrant issued "as it was necessary to amend the description of the offence charged". It stated that there was no delay as the authorities had been searching for the Appellant between 2005 and 2013.

Grounds of appeal

8. In summary, the Appellant submitted:

i) The Appellant invited the judicial authority in writing to employ less coercive measures than extradition, pursuant to section 21B EA 2003, but received no response. The DJ failed to take this into account in considering whether extradition was proportionate.

ii) The DJ failed adequately to consider the relevant factors under section 21A EA 2003 and erred in concluding that extradition was proportionate.

iii) The DJ misdirected himself in law on the test to apply under Article 8. In his assessment of proportionality, he misunderstood the evidence, took into account irrelevant matters, failed to consider relevant matters, and reached a conclusion which was wrong.

iv) The DJ misdirected himself in law on the test to apply under section 14 EA 2003, took an erroneous approach to the evidence, took into account irrelevant matters and failed to consider relevant matters.

Statutory framework

9. Section 14 EA 2003 provides, so far as is material:

"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—

(i) committed the extradition offence (where he is accused of its commission)…."

10. Section 21A provides, so far as is material:

"21A 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.

….."

11. Section 21B provides:

"21B Request for temporary transfer etc

(1) This section applies if—

(a) a Part 1 warrant is issued which contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory), and

(b) at any time before or in the extradition hearing, the appropriate judge is informed that a request under subsection (2) or (3) has been made.

(2) A request under this subsection is a request by a judicial authority of the category 1 territory in which the warrant is issued ("the requesting territory")—

(a) that the person in respect of whom the warrant is issued be temporarily transferred to the requesting territory, or

(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.

(3) A request under this subsection is a request by the person in respect of whom the warrant is issued—

(a) to be temporarily transferred to the requesting territory, or

(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.

(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person (in the case of a request under subsection (2)) or the authority by which the warrant is issued (in the case of a request under subsection (3)) to consider whether to consent to the request.

An adjournment under this subsection must not be for more than 7 days.

(5) If the person or authority consents to the request, the judge must—

(a) make whatever orders and directions seem appropriate for giving effect to the request;

(b) order further proceedings in respect of the extradition to be adjourned for however long seems necessary to enable the orders and directions to be carried out.

(6) If the request, or consent to the request, is withdrawn before effect (or full effect) has been given to it—

(a) no steps (or further steps) may be taken to give effect to the request;

(b) the judge may make whatever further orders and directions seem appropriate (including an order superseding one made under subsection (5)(b)).

(7) A person may not make a request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already given consent to a request under the corresponding paragraph of subsection (2) in respect of that warrant (even if that consent has been withdrawn).

(8) A person may not make a further request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already made a request under that paragraph in respect of that warrant (even if that request has been withdrawn).

(9) If—

(a) a request under subsection (2) or (3) is made before a date has been fixed on which the extradition hearing is to begin, and

(b) the proceedings are adjourned under this section,

the permitted period for the purposes of fixing that date (see section 8(4)) is extended by the number of days for which the proceedings are so adjourned."

12. Section 27 provides far as is material:

"27 Court's powers on appeal under section 26

(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

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

(3) 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.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

The request under section 21B EA 2003

13. The DJ was required by section 21A(3)(c) EA 2003 to take into account the possibility of the judicial authority taking a less coercive measure than extradition when deciding whether extradition was proportionate.^[2] It was also a potentially relevant factor to be weighed in the balance under Article 8. The DJ held:

"No less coercive measures to extradition have been suggested and I do not consider any to be a possibility."

14. At the initial hearing on 26 April 2016, the Appellant's solicitors (Aneta Maziarz Solicitors hereinafter "AM Solicitors") indicated their intention to make a request under section 21B EA 2003. This was confirmed by the written directions. It was identified as an issue in the extradition proceedings and the Appellant was ordered to serve the request in writing within 14 days.
15. In a letter dated 18 May 2016 sent to Westminster Magistrates Court and the Crown Prosecution Service ("CPS"), AM Solicitors referred to the section 21B request within the body of the attached skeleton argument. The request was clearly set out at three places in the skeleton argument:

"8. The following issues are raised on behalf of Mr Kazaniekci:

(i) A request by Mr Kazaniekci to the Judicial Authority that arrangements be made to enable him to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant either at the Polish embassy in London or by way of video link or any other means other than Mr Kazaniecki being transferred to Poland under s.21B. "

"10. Mr Kazaniecki is making a request under s.21B to be interviewed regarding the allegation contained in the EAW by way of a video link or at the Polish Embassy/Consulate in London or any other way other than being transferred to Poland."

"18. Mr Kazaniecki has expressed his willingness to be interviewed by the Polish Authorities in relation to the accusation matter and is willing to assist in resolving this matter. Since the alleged offence took place a long time ago in 2002 and Mr Kazaniecki has become settled in the UK, has a mortgage on his own home and his whole family are in the UK. It would therefore be reasonable for the Polish Authorities to interview him via video link or at the Polish Consulate in London in relation to this allegation, particularly given the delays in this case on the part of the Polish authorities."

16. Ms Hinton, counsel for the Respondent (who did not appear below), stated at the appeal hearing before me that the CPS never passed this request on to the judicial authority believing that the Appellant had abandoned it at a case management hearing on 7 June 2016. Ms Hopkins, solicitor in the CPS Extradition Unit, made a witness statement stating that the section 21B point had been abandoned by the Appellant's solicitor and her typed pro forma attendance note for the hearing on 7 June 2016 confirmed this. Although she did not appear at the full hearing, her evidence was that the section 21B request was not mentioned to the DJ.
17. The Appellant's solicitors were unable to produce any attendance note of the hearing on 7 June, and the Magistrates Court has been unable to produce any record of it either. However, Ms Maziarz-Bousse, solicitor, who attended the case management hearing on 7 June, and Ms Grudzinska (a barrister who is employed by AM Solicitors) who attended the full hearing on 22 June 2016, have both filed witness statements insisting that the section 21B point was never abandoned. Ms Aneta Maziarz-Bousse said "I have neither recollection nor record of that s.21B application being withdrawn". Ms Grudzinska said:

"4. The skeleton argument of 18 May 2016 was served by email; this made plain that the skeleton contained the s. 21B request. However, since that time, no response was ever received from the Polish judicial authority.

5. When my colleague, Ms. Maziarz attended Westminster for the case management hearing on 7th June 2016, she was fully aware of the identified issues in the case, including the s.21B request. We did not discuss or consider abandoning it; there is no reason why we would have done so, since it was and remains absolutely in our client's best interests not to be extradited. My view was that he had every prospect of defeating this request, either substantively on the points raised, or via less coercive measures.

6. I received the RFFI, dated, 23 May 2016, at the final hearing. Having considered that information, I formed the view that the Polish judicial authorities, in failing to respond to the s. 21B application had rejected it. For example, the further information contained responses to the various questions asked of the Polish Judicial Authorities on the basis of the evidence that we had served, including my skeleton argument which set out our position out clearly. In my view, there ought to have been a response to the s. 21B request.

7. Even if the request for further information had been sent before our s. 21B request had been set out in writing, the prosecution were certainly aware that this was a live issue because it was raised from the outset of the case.

8. On the day of the extradition hearing, from recollection, my submissions were consistent which my skeleton argument. My notes of the hearing (in particular examining witnesses and making submissions) and my submissions at the hearing are limited due to the fact that it is difficult to make notes when you are on your feet, I served a bundle which contained my skeleton argument (this bundle was contained in the original appeal application) and was paginated. I served one copy on the prosecution and one was passed to the judge. The judge kept the bundle which contained all the evidence upon which we are relying.

9. I am very surprised that it is suggested that the s. 21B application was withdrawn. Ms Maziarz and I work very closely together on all of our cases and there was never a discussion between us to abandon this application, which we found to be a proper and strong application to make. I maintain the view that the failure of the Polish authorities to consider the point reflected either their tacit rejection of it, or the fact that no request was ever made to them by the CPS to consider it."

18. I find Ms Grudzinska's evidence to be credible and persuasive. I cannot see why the Appellant would have abandoned his section 21B request; he had nothing to lose by pursuing it, and potentially something to gain. Moreover, it could only properly have been abandoned by his solicitor acting on instructions. In my view, the most likely explanation of what occurred was that the Appellant's solicitors did not decide to abandon it because they no longer wished to rely on it. However, they concluded that the Polish judicial authority had either ignored or implicitly rejected the request, since no reference was made to it in the Further Information dated 23 May 2016, and so they did not actively pursue it before the court. My view that the request was not abandoned is supported by the fact that it was referred to in the Provisional Grounds of Appeal, as a live issue, and then developed in the Perfected Grounds of Appeal, settled by counsel, which stated:

"18. In written submissions, both within his skeleton argument and in a covering letter, dated 18 May 2016, the Appellant invited the Respondent judicial authority to employ less coercive measures than extradition, pursuant to s. 21B. He invited the authorities to interview him, either in person in the UK or via a video-link. However, although the Polish authorities provided further information on 23 May 2016, it contained no response to this request."

A submission in the same terms was included in Mr Hawkes' skeleton argument on appeal.

19. It was clear to me from the reaction of the Appellant's counsel and solicitor at the appeal hearing, when Ms Hinton told me that the CPS had never sent the request to the Polish judicial authority, that they had not previously been aware of this fact.
20. In my judgment, it is unfortunate that the position in relation to the section 21B request was not clarified at the full hearing, either by the DJ or the legal representatives of the Appellant or the Respondent, given that it was plainly raised in the Appellant's skeleton argument. If it had been, the misunderstandings between the parties would have become apparent, in particular, that the request had not been abandoned and the Polish judicial authority had not yet considered the request because the CPS had not passed it on to them. There were several features in this case which could have resulted in the Polish judicial authority acceding to the request:

i) The Appellant and his family were settled in the UK, and extradition would be onerous for an infirm man of his age;

ii) The relatively minor offence alleged and the Appellant's explanation for it;

iii) The fact that the Appellant had never been questioned by the Polish police, he was not a fugitive from justice;

iv) He had no previous convictions;

v) The length of time which had elapsed since the offences, during which time one of the individuals named in the warrant (a potential defence witness) had died.

21. In my view, if the DJ had addressed his mind to the outstanding section 21B request, he would probably have adjourned the hearing to enable the Polish judicial authority to consider the section 21B request, in accordance with section 21B(4).
22. The focus of the Appellant's challenge was that the decision to extradite was disproportionate when a less coercive measure remained a possibility, and so the DJ erred in his application of section 21A EA 2003 and Article 8 by ordering extradition. I deal with this further below.

Assessment of the evidence and findings of fact

23. The Appellant challenged the DJ's assessment of the evidence and his findings of fact. Potentially these challenges have a bearing on the DJ's consideration of section 21A (limited to the factors in ss (3)), section 14 and Article 8.
24. I accept the Appellant's submission that the DJ relied upon factual findings which were contrary to undisputed evidence, namely:

i) The DJ found that the Appellant and his wife had separated on two occasions, whereas, his evidence was that it was only on one occasion, following his breakdown and departure from Poland for the UK.

ii) The DJ found that the Appellant has a son, whereas he only has a daughter.

iii) The DJ found that the Appellant's wife had fibromyalgia when in fact it was his daughter who suffered from fibromyalgia.

I do not consider that the first two errors had any bearing on the DJ's decision. The third error was more significant, as it was relevant to the daughter's ability to support the family and care for her mother, if the Appellant was extradited.

25. I did not accept the Appellant's submission that the DJ resorted to improper speculation when he considered the impact of the Appellant's extradition upon the family's finances. In my judgment, the DJ was entitled to conclude, on the evidence before him, that although the loss of the Appellant's income would have a financial impact, the family (including his daughter, son-in-law and grandson who all lived with him) would be able to adjust, and "the financial impact will not be as grim as suggested". In particular, they would not be made homeless. I do not consider that the DJ's error in overlooking the daughter's fibromyalgia would have made any difference to this conclusion, as he correctly recorded that the daughter works part time and the son-in-law works full time.
26. I accept that the DJ did not appear to appreciate the extent of the mental illness suffered by the Appellant's wife, and the adverse effect the extradition was likely to have upon her. The evidence (including independent medical evidence), was that she had a history of mental illness from when she lived in Poland, that she required a lot of support from her family, and that she was currently highly stressed and was prescribed anti-depressants and sedatives. Her daughter gave evidence that "if my dad wasn't here my mum would fall into a very bad psychological state".
27. The DJ considered that the offence was not a trivial one and a custodial sentence was "not out of the question". The DJ was well aware that the victims were banks, not individuals. In my judgment, the DJ's assessment was correct. I agree with the DJ that it could be assumed that the Polish courts would take into account the adverse effects of a custodial sentence on an infirm man of his age, were he to be prosecuted and convicted.
28. The DJ found that the delay had not prejudiced the Appellant's trial, bearing in mind "the nature of the allegations which logic dictates will be evidentially founded on paperwork". I accept the Appellant's submission that the DJ erred in reaching this conclusion. He appears to have overlooked the nature of the Appellant's response to the allegations (set out in his witness statement), which would rely upon the evidence of the two individuals to whom he gave the certificates, to confirm that he did it to assist them, on the assumption that they would repay the loans, and that he gained no personal financial advantage. The evidence before the DJ was that Mr Zycki died around 4 years ago, so the delay had prejudiced the Appellant to that extent. There would quite possibly be difficulty in tracing other witnesses too, owing to the delay.

Section 21A EA 2003

29. Under section 21A EA 2003, before making an order for extradition, the DJ had to decide whether it would be compatible with Convention rights and whether it would be disproportionate. On proportionality, the factors to be considered are specified in subsection (3) and include "(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition…". In my view, the DJ erred in failing to consider the section 21B request set out in the Appellant's skeleton argument, in particular, whether it was still pursued and whether the Polish judicial authority had responded to it. His conclusion that extradition was proportionate on the facts of this case whilst there remained the possibility that the Polish judicial authority might instead investigate the accusations against the Appellant in a less coercive manner in the UK was, in my judgment, wrong.
30. As stated at paragraph 27 above, I did not accept the Appellant's submission that the DJ erred in his approach to the seriousness of the conduct or the likely penalty.

Article 8

31. The Appellant's claim under Article 8 was founded upon his family life with his wife, grown-up daughter and 16 year old grandson.
32. The Appellant submitted that the DJ misapplied the leading case of Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin). In Celinski, Lord Thomas CJ set out guidelines for general application to Article 8 cases, at paragraphs 1 to 25 and then considered the factors particular to Celinski's case at paragraphs 26 to 39. In this case, under his list of factors in favour of extradition, the DJ cited a passage from paragraph 39:

"The important public interests in upholding extradition arrangements, and in preventing the UK being a safe haven for a fugitive as Celinksi was found to be, would require very strong counter-balancing factors before extradition could be disproportionate."

This was a mis-direction, as Celinski was a fugitive, whereas the Appellant was not.

33. I agree with the Appellant's submission that the DJ misdirected himself on the law. Celinski confirms at paragraph 6, citing Norris v Government of the United States of America [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338, that "there was a constant and weighty public interest in extradition that those accused of crime should be brought to trial … that the United Kingdom should honour its international obligations and the UK should not become a safe haven". At paragraph 9, which the DJ cited, Lord Thomas said:

"the public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice. We would expect a judge to address these factors expressly in the reasoned judgment."

34. Applying those principles to this case, on an accusatory EAW where the requested person is not a fugitive, there is a very high public interest in ensuring that he is brought to trial, thus honouring the UK's international obligations, but the additional public interest in discouraging fugitives to treat the UK as a safe haven does not arise.
35. I found the DJ's judgment internally contradictory on this issue. He listed, as a factor in favour of extradition, that he disbelieved the Appellant's account of the reasons for his hurried departure from Poland in 2004, without informing his wife. This would have been highly relevant if the Appellant was said to be a fugitive but I consider it was irrelevant in this case since the Polish judicial authority confirmed he was not a fugitive and that there was no evidence that he was seeking to avoid responsibility for the offence. The DJ referred twice to the fact that the judicial authority did not suggest that he was a fugitive, so it cannot be said the DJ overlooked this. As the judicial authority has to prove fugitive status to the criminal standard, it was not open to the DJ to treat the Appellant as if he might possibly have been a fugitive, which at times he appears to have done (see also in relation to section 14 at paragraphs 50 and 51 below).
36. I also consider that, although an adverse credibility finding on this issue could, in principle, have been relied upon in relation to other matters, it did not appear to have any bearing on any of the factors for or against extradition in this particular case, which did not turn on the Appellant's credibility.
37. The Appellant also submitted that the DJ erred in identifying other factors in favour of extradition which were on any view neutral or irrelevant. I agree that the presence of the Appellant's mother and sister in Poland was not, of itself, a factor in favour of extradition. However, the Appellant had argued against extradition on the ground that he had no roots or family ties in Poland and that he had nowhere to live in Poland, which would mean that there would be nowhere for him and his wife to stay during the criminal investigation and proceedings. In those circumstances, it was legitimate for the DJ to take into account under Article 8 the fact that his close relatives still resided in Poland.
38. As stated above in paragraph 26, I accept the Appellant's submission that the DJ did not appear to appreciate the extent of the mental illness suffered by the Appellant's wife, and the adverse effect the extradition was likely to have upon her.
39. The Appellant submitted that, although the DJ acknowledged the delay of 12 years since the alleged offence occurred, he failed properly to take it into account when performing the balancing exercise.
40. In HH, Lady Hale said at [8]:

"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."

41. In La Torre v Republic of Italy [2007] EWHC 1370 (Admin), when considering section 14 EA 2003, Laws LJ said:

"34. Mr Fitzgerald relied also on other learning, which it is convenient to consider before confronting the argument, not least given the considerable emphasis placed by Mr Fitzgerald on what he says has been inexcusable delay on the part of the Italian authorities. In Kakis itself Lord Edmund-Davies stated (785):

"[T]he fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor …"

Lord Edmund-Davies stated in terms that he was "unable to concur" in part of Lord Diplock's reasoning, where he had said (783) "the question of where responsibility lies for the delay is not generally relevant". Of their other Lordships Lord Russell of Killowen and Lord Scarman agreed in terms with Lord Diplock's speech.

35. In Osman (No 4) [1992] 1 AER 579 Woolf LJ as he then was considered Lord Diplock's reasoning in Kakis and concluded that he had not intended to exclude culpability on the part of the requesting State as a material matter:

"Lord Diplock was not suggesting that, in a case which was close to the borderline as to whether or not the applicant was entitled to be discharged, the fact that the requesting state had been guilty of culpable delay was not a matter which the court was entitled to take into consideration." (587g)

36. I understood Mr Fitzgerald to submit that unexplained delay (at least, presumably, if it is substantial) might of itself make a case of prejudice, entitling the prospective extraditee to be discharged. He cited Kociukow [2006] EWHC Admin 56, a decision of this court. Jack J (with whom Hallett LJ agreed) said:

"10. It is the appellant's case that it would be unjust to return him to Poland to stand his trial because over six years have gone by since the alleged offence which gives rise to serious prejudice to him in his defence. It is his case that he came to the United Kingdom in late August 1999 or soon thereafter, entered lawfully and has been residing here lawfully since then. He asserts that he has otherwise no knowledge of the robbery, of the stalls in question, or of the women referred to. He has no knowledge now of what he was doing on 18 August 1999. There is no information as to the nature of the evidence against him. I conclude that there is a very real risk that the appellant will be prejudiced in his defence by the passage of the time that has passed. As is obvious, he is very likely to have difficulties in dealing with evidence which he first hears about over six years after the events. Also, if, for example, the case turns on identification evidence, there is very likely to be a much greater risk after this period of time of a wrong conviction. If the appellant is not to blame for this situation, I would be satisfied that it would be 'unjust' that the appellant be extradited because of the serious risk of substantial prejudice to him in the conduct of his defence."

Jack J observed that counsel for the respondent had no instructions as to why the warrant had not been issued until the previous year, and continued:

"11. … [I]t cannot be for the appellant to show that there are no good reasons for the delay. It is his case that his leaving Poland was unconnected with the offences. In the absence of any explanation from the extraditing authority he is entitled to assert that there is a prima facie case calling for an answer, which is unanswered …"

37. As the district judge was to observe in the present case (paragraph 10) Kociukow turned on its own facts. In particular, at the time the court was considering the matter there was simply no information as to the nature of the prosecution evidence, quite apart from the causes of the delay. In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether "it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence". That is, of course, the starting-point. There are then Lord Diplock's observations in Kakis (at 782), which describe the overlapping scope of "unjust" and "oppressive". Next, the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extraditee to be discharged: Jack J, I am sure, did not intend to suggest as much. All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No 4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges."

42. The DJ accepted that the delay was a factor against extradition, but stated that it was significant that the Polish judicial authority had been looking for him between 2005 and 2013, but could not find him. There was no reason for them to search for him in the UK.
43. In my view, the DJ failed to scrutinise the EAW and the Further Information from the Polish judicial authority with sufficient care. There was no adequate explanation as why it took 8 years (2005 to 2013) for the judicial authority to appreciate that the 2005 warrant had to be quashed and a fresh warrant issued. Nor was there any explanation for the delay between 2013 when the second warrant was issued and the issue of the EAW in 2016. The judicial authority did not give any indication as to why they did not issue an EAW before 2016 and when they first considered that he might have left Poland and that he might be in the UK. Although the DJ said that there was no reason for the judicial authority to search for the Appellant in the UK, this was an inference which he drew since the judicial authority did not refer to this. The Appellant was registered with the Home Office scheme from 2005, paid income tax and had a mortgage, so he would have been easily traced. In my view there was significant delay by the judicial authority which, in the absence of any explanation to the contrary, appeared extremely dilatory.
44. The DJ recognised (in considering section 14 EA 2003) that the Appellant had built a life in the UK over the past 12 years. He had been continually employed by the same employer and had bought a home here. In his consideration of Article 8, he referred to the 12 years which had passed, during which he had built a family life in the UK. His family would suffer financial and emotional hardship if he was extradited.
45. As I have stated in paragraph 29 above, I accept that the DJ erred in concluding that the delay would cause no prejudice because the evidence would be founded upon paperwork, whereas in fact witnesses would be an important part of the Appellant's defence, and a key witness was now dead. I do not consider that this was a decisive factor against extradition, since it could be taken into account by the judicial authority in its decisions in respect of the Appellant, but it certainly should have been included in the balancing exercise.
46. The final consideration on the issue of delay was the real risk of unreasonable delay, contrary to Article 6, in the determination of any criminal proceedings against the Appellant in the light of chronic systemic delays in the Polish court system. These are recorded in the pilot judgment in Rutkowski and others v Poland (App. nos. 72287/10, 13927/11, 46187/11 and 591 other applications) 7 July 2015 in which the ECtHR found breaches of the "reasonable time" requirement in Article 6. This was raised by the Appellant at the full hearing (skeleton argument paragraph 59) but not referred to by the DJ.
47. When he was carrying out the balancing exercise under Article 8, the DJ erred in failing to take into account the possibility that the Polish judicial authority might agree to the Appellant's request under section 21B EA 2003 to investigate the accusations against him in the UK instead. In my judgment, the possibility of another less coercive option was a very significant factor against extradition.
48. Although the Appellant's solicitors were partially to blame, because they did not seek clarification of the position on the section 21B EA 2003 request at either the case management or the full hearing, I do not consider that the Appellant should be penalised by their failures, as these are criminal procedures affecting the liberty of the subject.
49. In conclusion, I consider that the DJ made a series of errors: (1) not addressing the unresolved request for less coercive measures under section 21B; (2) in relation to fugitive status, a misdirection of law and taking into account irrelevant considerations; (3) not taking into account the full extent of the mental illness of the Appellant's wife and the adverse impact that his extradition would be likely to have upon her; and (4) inadequate consideration of the reasons for the 12 year delay and the consequences of it, and the risk of unreasonable delay in future.
50. Because of these errors, I consider that the DJ wrongly concluded that it was proportionate to extradite the Appellant under Article 8.

Section 14 EA 2003

51. The Appellant submitted that the DJ erred in concluding that it would be neither unjust nor oppressive to extradite him.
52. In Kakis v Government of Cyprus [1978] 1 WLR 779, Lord Diplock said, at 782, 783:

""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, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

53. In Gomes & Goodyer v Trinidad and Tobago [2009] UKHL 21, Lord Brown delivering the opinion of the Committee said:

"31. The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of s.82. This is, of course, touched on in the first sentence of Diplock para 1. And, so far as concerns oppression, it is worth noting too Lord Diplock's statement (at p284) that: "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."

54. The DJ cited these passages from the leading cases and then said:

"The case confirms that a RP is ordinarily denied any passage of time argument unless there are 'the most exceptional circumstances'."

55. I agree with the Appellant that this was a significant misdirection on the part of the DJ. The reference in Kakis to denying any passage of time argument save "in the most exceptional circumstances" was only applicable to those who were fugitives. It was conceded by the Respondent, that the Appellant was not a fugitive, and so the DJ could not properly conclude that he was.
56. However, the question is whether the DJ would or ought to have reached a different conclusion if he had correctly directed himself in law, bearing in mind that the onus was on the Appellant to prove on the balance of probabilities that it would be unjust or oppressive to extradite him.
57. On the question of injustice, the DJ said that there was no prejudice to the Appellant's trial as the result of the delay, bearing in mind "the nature of the allegations which logic dictates will be evidentially founded on paperwork". As I have already stated, the DJ erred in reaching this conclusion (paragraphs 28 and 45 above).
58. In deciding whether this amounted to injustice, I have applied the guidance given by Lord Brown in Gomes & Goodyer at [32], [33]:

"32. With regard to the concept of injustice, the law has moved on since Kakis, in part because of the developing abuse of process jurisdiction over the past 30 years. It is unnecessary to rehearse this at length. Rather it is sufficient to refer to the judgment of the Privy Council delivered by Lord Bingham of Cornhill in Knowles v US Government [2007] 1 WLR 47, in particular para 31 where the Board approved the Divisional Court's judgment in Woodcock v Government of New Zealand [2004] 1 WLR 1979 from which it extracted and endorsed the following propositions:

"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 (para 20). Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21). But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect the defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22). 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 (paras 14-16, 23-25). Fifthly, 'there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive' (para 29)."

33. The second of those propositions, it will be noted, invites consideration of whether, in any particular case, "a fair trial is impossible", and that indeed we regard as the essential question underlying any application for a s.82 bar on the ground that the passage of time has made it unjust to extradite the accused. As was pointed out in Woodcock (para 17), a stay on the ground of delay in our domestic courts is only properly granted when "there really is evidence of prejudice to the extent that a fair trial could not be held". We acknowledge that in Kakis, Diplock para 1 speaks of "the risk of prejudice to the accused in the conduct of the trial itself". But Viscount Dilhorne's leading speech in Narang the previous year had used the language of impossibility:

"I see nothing in the material before this House to lead to the conclusion that as a result of the passage of time it would be impossible for [the two accused] to obtain justice, and, that being so, I am unable to conclude that by reason of the passage of time their return would be unjust or oppressive." (p.276)"

59. I do not consider that the Appellant can satisfy these tests. Although he would be prejudiced by the absence of Mr Zycki and perhaps other witnesses, I do not consider it would be impossible for him to receive a fair trial. I also consider that the absence of witnesses after such a long delay would be a matter which the Polish authorities would take into account themselves in deciding how to proceed after extradition.
60. On the question of oppression, I consider that that the DJ's misdirection on the correct legal test and failure to take into account all the relevant factors led him to make a decision which was wrong. This was an accusation warrant for an offence which the Appellant denied. He had submitted a request to be interviewed by the Polish judicial authority which ought at least to have been considered by them before any decision to extradite was made. For the reasons I have set out above, at paragraphs 39 to 46, the judicial authority appeared to have been extremely dilatory in pursuing the investigation. The Appellant was at risk of further unreasonable delay in the determination of any proceedings against him if extradited because of the current systemic delays in the Polish criminal justice system. Over the past 12 years, the Appellant had built a life in the UK, living with his family, buying a home and working for the same employer throughout. The consequences of extradition would be severe for him, as a 59 year old man in poor health. There would be financial and emotional hardship for his wife and daughter, particularly his wife who was vulnerable by reason of her mental illness. In my judgment, extradition would be oppressive within the meaning of section 14 EA 2003.

Conclusion

61. For the reasons given, the appeal is allowed.

Note 1   The DJ’s judgment wrongly identified the Respondent as the Regional Court in Poznan, Poland. I consider that this was probably a typographical error.     [Back]

Note 2   Section 21B was considered in Miraszewski v District Court in Torun, Poland [2014] EWHC 4261 (Admin), at [40] – [41], and in Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin), at [76] – [81].     [Back]