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
		19/07/2016

Sir Ross Cranston:

1. This is an appeal against the decision of District Judge Iyundo dated 2 September of last year to order the appellant's extradition to Poland pursuant to four European Arrest Warrants. The arrest warrants cover six offences of the theft of vehicles and buying stolen vehicles worth a considerable sum of money. On the face of the warrants the appellant has more than four years to serve. There is also an accusation warrant, to which I shall return.
2. The appellant raises Article 8 and submits that there has been culpable delay on the part of the authorities so that, coupled with the impact on him and his family, it would be disproportionate to extradite him.

The EAWs

3. The four EAWs are as follows. The first numbered XVIII KOP 12/06 is a conviction warrant issued in May 2006 and certified by the National Crime Agency on 23 November 2015. It covers two offences. One was back in January 2014. The appellant stole a vehicle. The other is that he committed the same offence on 16 February of the same year. The total aggregate penalty was two years and six months of which one year, 11 months and two days remain to serve. Box D of the warrant indicates that he was present at his trial.
4. The second warrant XVIII KOP 255/11 was issued in November 2011 and certified by the National Crime Agency on 23 November 2015. It is an accusation warrant and alleges that in January 2004 the appellant demanded a sum of money from another in relation to a vehicle which had been stolen the previous evening. Box F of the warrant states that the appellant was charged on 8 January 2004, but did not attend court and it was not possible to establish his address. Box F continues:

"Actual search for him in Poland has been unsuccessful ... It is probable he has stayed in the territory of the European Union particularly the territory of the United Kingdom."

5. The third EAW numbered XVIII KOP 282/11 was issued in January 2012 and certified by the National Crime Agency on 23 November 2015. It is a conviction warrant in relation to a sentence of which two years remain to be served. The warrant states that the appellant was present at his trial. The three offences in box E of the warrant are: firstly, that he stole a vehicle in January 2002; secondly, he had purchased a vehicle without documents which had been stolen and he forged the licence plates by welding the number of the engine and the chassis and registering it in someone else's name. That was in June 1999. The third offence on the warrant is that in June 1999 he purchased a vehicle knowing that it was the proceeds of a crime.
6. Box F of the warrant states that the first offence led to a sentence of 18 months imprisonment suspended for four years, and that in June 2002, for the second offence, he was given two years suspended for five years. The warrant explains that in October 2007 the court combined the penalties and imposed a sentence of two years with a daily fine suspended for five years. Box F continues:

"...as of information of District Police in Piaseczno, the convict has been probably staying in Spain."

Box F also has this statement:

"The time limitation of the penalty execution is 24th May, 2017."

7. The fourth EAW numbered XVIII KOP 157/09 is a conviction warrant issued in August 2009 and certified by the National Crime Agency on 19 October 2016. It alleges in that the total sentence which remains to be served is eight months. Box E of the warrant notes that the appellant was present at his trial. Box F sets out the offending - he helped to sell a stolen vehicle. Box F of the warrant says:

"Following the investigations, the District Police in Piaseczeno found out that the convict was most probably staying in the territory of Spain."

Further information

8. Further information was obtained in relation to each of the warrants. In relation to EAW1 the further information explained that not only was the appellant at his trial, but he was present when judgment was pronounced in October 2004 and he was sentenced to a term of immediate imprisonment on the same day. It continues that he appealed the decision which was dismissed in January 2005. It also explains that he was required to surrender to prison in March 2005, but did not do so and that the police have been searching for him since that time.
9. The further information for the second EAW states that in April 2008 the court ordered pre trial detention and issued an arrest warrant because the appellant had failed to appear for his trial, but he was not at his nominated address and the court did not know any other place of residence. There had been attempts to deliver summonses to him at the address he had indicated. The further information also explains that enquiries were made at "The Centre of Document Personalisation of the Ministry of Internal Affairs And Administration" to verify all places of residence and registered addresses of the appellant.
10. It adds that since August 2008 searches have been conducted pursuant to the arrest warrant because the appellant was in hiding. As part of those searches, the court agreed that on 31 August 2008 information about the appellant should be published in the mass media. It notes that in November 2011 it was established that the appellant was here in the United Kingdom and that on that basis the request was made to issue the EAW. The further information also explains that in January 2004 the appellant had signed a declaration that he was obliged to appear when his attendance was required by a court. Further, he should notify the authorities of every change of residence which exceeded seven days and, if he did not attend, he would be arrested and taken to court by force.
11. Information in relation to the third EAW states that the appellant was not present when the cumulative judgment was given and notes that the appellant was obliged to notify the authorities of a change of address or a change of employment or if he went abroad during the five year trial period. It also explains that in September 2011 the court had been informed that he was outside Poland. On that basis, the court sought a European Arrest Warrant.
12. The further information for the fourth EAW states that the appellant was not only at his trial, but he appealed his conviction and that the appeal was dismissed. It adds that he failed to attend prison on 21 February 2005 and that he has been unlawfully at large since then. It notes that the court had received information in April 2005 that he was abroad, probably in the UK. The further information explains that every three months the court requested the police as to whether or not the appellant had been found and the court was informed that the search was ongoing and "his whereabouts were unknown, as he was in the UK for work."
13. In December 2016 a statement was prepared by an official of the National Crime Agency. That statement was prepared at the request of the District Judge. It explained that Poland had sent the four EAWs to the United Kingdom by February 2012, that they were certified in March 2012, that location checks had been carried out in December 2011 and March 2012, but that there had been "no trace" of the appellant in the UK. The statement continues that, following the UK's accession to the Schengen Information System, the warrants were requested again and they were recertified on 23 November 2015. Location checks were carried out again in June 2016 and again revealed "no trace" of the subject. In October 2016 the West Midlands Police reported that the appellant had made himself known to them.

The judgment below

14. After summarising the warrants, the appellant's evidence and Mr Seifert's submissions, the District Judge set out his findings and decisions. He stated at paragraph 77 that there was no dispute that the appellant was a fugitive. He left Poland in early 2005 following his release from pre trial detention and, in the District Judge's judgment, was fully aware of the nature of the criminal proceedings, none of which had been resolved. The judge added he was not persuaded that the appellant had simply left Poland to get away from his associates. Rather, he had left to avoid the real likelihood of custodial sentences.
15. The judge noted that the appellant had lived an open life in the UK and was of good character (paragraph 78). He observed that there had been delay in the certification of the warrants. There was no clear reason why it had taken so long to find the appellant, but that was no reason to find that there had been culpable delay:

"Indeed, the requested person's failure to notify the Polish authorities of his whereabouts at all is as causative of the delay, in my consideration, as any shortcomings which could be attributed to the Polish or UK authorities." [Paragraph 79]

16. At paragraphs 80 and 81 the judge then considered the impact of extradition on the appellant's family, including his two children. According to Dr Grange, the psychologist retained by the appellant's solicitors, the two children were not in the best of health. The elder child was very unwell, although the prognosis for the second was less certain (paragraph 80). The appellant, the judge noted, was a good parent.
17. The judge stated at paragraph 81 that there was extended family in the Midlands who had provided support and "they would support his partner and children were he to be returned to Poland." The judge accepted that the family would suffer hardship, as is often the case (he said) in extradition. The children would be adversely impacted by the absence of their father:

"...Dr Grange's assessment of the impact has not been challenged. As such, I do not demur from his conclusions. However, careful reading of his report does not lead me to conclude that the absence of the requested person would be devastating to the family. This is not a sole carer case. There is wider familial support available, complemented by state support (e.g. schools and medical support)." [Paragraph 82]

18. Among the factors against extradition, which the District Judge identified at paragraph 79, was delay:

"The offences are all over 10 years old. There has been significant delay. The delay can be attributed to both the requested person and the Polish and/or the UK authorities. The delay has impacted the requested person and his family whose life is now established in the UK. The requested person is of good character and had a good family within that time."

19. The District Judge then observed that the appellant had significant sentences to serve and associated criminal allegations of which he had always been aware. His partner had not been in the dark either. They may have put their heads in the sand (paragraph 83).
20. The judge then carried out the Celinski balancing exercise and concluded that, although he had sympathy with the appellant's family, he could not conclude that it was disproportionate to extradite the appellant for the offending set out in the warrant.

The appellant's case

21. In his thorough and forceful submissions, Mr Seifert highlighted delay. The delay in this case was, in his submission, significant. There had been inordinate delay since the commission of the offences; the most recent offence had taken place almost 13 years ago. The appellant had lived openly in this country since his arrival and had never sought to conceal his whereabouts. He had registered under the Accession State Worker Registration Scheme in March 2005 and could have been located much earlier, had the authorities been diligent. Mr Seifert drew attention to further information which indicated that it had been known since 2005 that the appellant was probably in this country.
22. It was also clear, in his submission, from the statement from the official of the National Crime Agency in 2016 that the first and fourth warrants had been certified as early as 2012 and yet they were not executed until they had been certified again in November 2015. There has been no explanation for this.
23. Mr Seifert contended that the appellant could not be blamed for the delay since 2005. He could have been located. Had the Polish authorities communicated with the UK authorities, he could have been arrested the very year of his arrival in this country. Mr Seifert also underlined the delay on the part of the UK authorities. There was a lack of communication between the different UK government agencies. The appellant was registered in 2005. He was paying income tax and was obviously known to the Revenue. In his submission, opportunities were missed. There was a lack of intelligence gathering. No explanation has been offered for all of this. There has been no explanation as well for the lack of contact between the authorities when a simple check would have found the appellant's whereabouts. In Mr Seifert's submission, the judge was in error in stating that there was no basis to attribute culpability.
24. In support of his submissions, he cited the recent decisions of Stryjecki v District Court of Lublin, Poland [2016] EWHC 3309 (Admin) and Miller v Polish Judicial Authority [2016] EWHC 2568 (Admin). In the first case, Hickinbottom J, as he was, took into account the long delay and also what he characterised as the failure of the authorities to act:

"...the authorities cannot simply do nothing: they must make some reasonable enquiries as to the person's whereabouts. In the case before me, there is no evidence that the authorities made any such enquiries. The evidence is, firmly, that they took no steps to find the appellant." [Paragraph 70]

25. In his submissions on behalf of the appellant, Mr Seifert used the delay as the backdrop to the other factors in the balancing exercise. He underlined the position in particular of the family and Dr Grange's report in relation to the two children that the condition necessitated significantly more care and attention than would usually be the case. The consequences of the appellant's extradition would be much more serious than in any given extradition case when the requested person's children are healthy. There was also the potential impact which Dr Grange identified on the appellant's partner. In Mr Seifert's submission, the District Judge had underplayed the impact of extradition on both the partner and the children. He had not given that the importance that it deserved in the balancing exercise.
26. In his written submissions, Mr Seifert, while acknowledging the offences were not trivial, at least stated that they were not major, not least because they were committed at a time when the appellant was in his late teens and early twenties.

Discussion

27. My function is to identify whether there is error in the decision of the District Judge. That I may have taken a different view of the issues at first instance is of no consequence. In my view, it cannot be said that the District Judge erred firstly in relation to his treatment of delay. At base, the appellant himself has caused the delay, in this case by fleeing Poland. He was a fugitive and the District Judge's finding to this effect is not challenged.
28. As I have indicated, the further information makes clear that the appellant was present at the judgment in October 2004 for the offending on the first warrant and so he would have known that he would have to serve a custodial sentence. Likewise, in relation to the fourth European Arrest Warrant, the further information confirms that the appellant was present when the judgment was handed down, so he would have known that he had a sentence to serve. He was required to surrender to prison in early 2005, but instead he came to the United Kingdom.
29. Moreover, the further information makes clear that the appellant signed a declaration in early 2004 that he would inform the authorities of any change of address exceeding seven days. I have referred to paragraph 77 of the judgment of the District Judge. There is no dispute that the appellant did not provide his address to the authorities. I accept Ms Pottle's submission that one reason it took so long to execute these warrants was this failure on the appellant's part.
30. Secondly, the further information summarised earlier in the judgment suggests that the Polish authorities did take steps to locate the appellant. The further information states that the arrest warrants were issued and the police made enquiries to enforce them. In the case of the third warrant, they publicised the position in the mass media. This is not Stryjecki where Hickinbottom J stated that there were no steps taken on the part of the authorities to locate the appellant.
31. Thirdly, despite Mr Seifert's submissions, I do not accept that the appellant's whereabouts were a simple matter. In both the third and fourth warrants the Polish authorities record that the police thought that the appellant might be in Spain. As I observed in the course of the argument, they must have received information to that effect from someone and we cannot discount that, given the mutual respect which operates between members of the EAW system.
32. The appellant did register with the Home Office in 2005. He gave an address in Wolverhampton and that was also the address given to the Jobcentre, but the P60 for 2006/2007 records a different address, an address which coincides with the addresses in the Polish birth registration for one of the children in 2007. It was only from 2010, it would seem, that the appellant had the address he apparently now has in Wolverhampton.
33. It seems to me, against the background of those three factors, that the Judicial Authority and the authorities here cannot be regarded as culpable. There are unexplained gaps. There are the delays in the certification. EAW1 was issued in 2006 and not certified until 2010. Similarly, EAW4 was issued in 2009 and not certified until 2016, but the submission by Mr Seifert that the authorities in this country can and should have exchanged information does not take into account the limitations on agencies in this country releasing personal data amongst themselves, unless there are gateways in the relevant statutory provisions. I was not taken to those gateways.
34. It seems to me that where a person has left the jurisdiction and failed to keep in touch with the authorities, it does not lie in their mouth to argue that the requesting state is to blame for the delay and that somehow the unexplained delay should weigh so heavily in the balance that extradition is disproportionate. Moreover, to attribute blame to a judicial authority is fraught with difficulty, as Lord Brown observed in Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, [2009] 1 WLR 1038 paragraph 27:

"...it will often be by no means clear whether the passage of time in requesting the accused's extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state's resources, practices and so forth) but also expensive and time consuming..."

The other members of the judicial committee agreed. It seems to me that that observation applies in the case of the Article 8 balance here. That does not mean that delay does not feature in the Article 8 balance, as Lady Hale said in R (On the application of HH) v Westminster City Magistrates' Court [2012] UKSC 25, [2013] 1 AC 338:

"8(6) The delay since the crimes were committed may have diminished the weight to be attached to the public interest and increased the impact upon private and family life."

35. But in this case the District Judge took the delay as a factor against extradition. He also took into account the impact of extradition on family Life. He clearly had children. As Lady Hale continued in that paragraph, 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. In my view, the situation in this case does not fall into that category. The District Judge took into account the children's condition at paragraph 80. He did not go into the details of those conditions, but, as I said in argument, judges are reluctant to do that given that judgments are public and it could well be invidious for the children to have any condition that they suffer broadcast to the world.
36. The District Judge, as I observed earlier, did not demur from Dr Grange's report about the children at paragraph 82, but he concluded that it would not be devastating, because it was not a sole carer case and there was extended family available and state support. I cannot regard the impact on the family of the father's extradition as exceptionally severe.
37. As to the overall Article 8 balance, the District Judge rightly avowed that he regarded the offending as serious, given the nature of offending and the sentences imposed. There was one apropos to this and that is the passage in the third warrant which I have quoted that the offence is time limited, that time having now expired. In my view, that would not affect the Article 8 balance, but there need to be enquiries as to the implications of this for the extradition of the appellant in relation to that warrant.
38. That being the case, I will dismiss the appeal, but the appellant's extradition will be postponed until those enquiries are made.
39. Ms Pottle, anything?
40. MS POTTLE: No, my Lord. Just to say for the appellant's sake that those enquiries will be put in train as soon as possible. I anticipate that they will have a response certainly by 9 August.
41. SIR ROSS CRANSTON: Yes. Can you say anything about the extent to which we postpone?
42. MR SEIFERT: The only thing I would say is, like the case yesterday in which there was a request for an extension of time for the order to become final, I was going to make that request in any event, but I am sure we can be confident that that response from Poland will come in the next 28 days at least.
43. SIR ROSS CRANSTON: What do you want?
44. MR SEIFERT: I would ask, and obviously my learned friend and I will draft the order, that this order does not become final until 28 days from today.
45. SIR ROSS CRANSTON: Yes.
46. MR SEIFERT: If that warrant is withdrawn, it will simply be withdrawn and it does not need to concern this court.
47. SIR ROSS CRANSTON: No. You will confer and draw up the order?
48. MR SEIFERT: Yes.
49. SIR ROSS CRANSTON: Thank you very much indeed.