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
		18 March 2016

1. MR JUSTICE HICKINBOTTOM: This is an appeal under section 26 of the Extradition Act 2003, against the decision of District Judge Baraitser sitting at the City of Westminster Magistrates' Court on 13 November 2015, to extradite the Appellant Pavel Bialek to Poland, to serve the balance of a sentence of eight months' imprisonment for simple possession of 0.24 grams of heroin.
2. The background facts are that the offence was committed on 25 November 2006. The Appellant was convicted on 11 February 2008, when he was sentenced in his presence to eight months' imprisonment suspended for five years. It was a condition of that suspension that the Appellant keep in regular touch with the Polish probation service. An appeal was dismissed on 3 July 2008.
3. On 11 September 2009, the Appellant, his wife and their daughter (who was born on 4 September 2003) left Poland for the United Kingdom, where they have remained since. A second child was born here on 27 March 2011.
4. Whilst in the United Kingdom, the Appellant has worked regularly. He currently works a four-day, 40-hour week in a sandwich factory packing sandwiches, as a permanent contract worker on night shift. His wife also works there, again on night shifts, but through an agency. Her work is precarious, particularly during the winter months. The family also receive child benefit. The Appellant and his wife are the sole carers for their two children, who are now aged twelve and four respectively. The family have been present in the United Kingdom for such a period that they have a right under European Union law to remain here.
5. Since arriving in the United Kingdom the Appellant has been convicted of one offence. On 24 September 2010, he pleaded guilty to simple possession of a class B drug (amphetamine), and was fined £80 with costs and surcharge.
6. The District Judge accepted all of that evidence so far as the Appellant's personal circumstances are concerned.
7. However, she did not accept his evidence as to the circumstances in which he came to leave Poland. The Appellant said that, after he was sentenced in 2008, for a year and a half he stayed in good contact with his probation officer, who visited him at home once a month. When he decided to move to the United Kingdom, he said he told the probation officer who agreed to him leaving, and he kept in touch with her by mobile phone after arriving in the United Kingdom. However, he said he had lost that phone and, with it, the contact details of the probation officer; so that he did not (and, as I understand it, he said could not) stay in contact with her. He said that he was not "fully conscious" of the fact that, by not keeping in touch with the probation officer, he might be in breach of his suspended sentence and risk the activation of that sentence.
8. The District Judge did not accept that the Appellant maintained contact with the Polish Probation Service once he had left Poland because (i) the EAW refers to him "evading" the supervision of the court, (ii) the judge considered his evidence on these matters to be vague and lacking in detail, unlike his evidence as to his personal circumstances, and (iii) he made no attempt to speak to the probation service or contact the court or do anything to avoid the activation of the suspended sentence after the time of the alleged loss of the phone. Furthermore, the judge did not accept that the Appellant was less than fully conscious of the consequences of breaching the order and that the Polish authorities were looking for him. The order was made in his presence. He appealed it; and, when he left Poland and stopped contact with the probation officer, the judge found that he must have known that that would have put him in breach. The judge therefore found that the Appellant was knowingly in breach of the conditions of the suspended sentence from the time he left Poland; and he knew that, by leaving Poland and not keeping in touch with his probation officer as he did, his prison sentence was liable to be activated. He was therefore a fugitive from that time.
9. The District Judge went on to consider possible bars to extradition - she found there to be none - and also whether the Appellant's extradition would be compatible with his rights under article 8 of the European Convention on Human Rights. Having considered the relevant authorities, notably the judgment of a Division of this court in Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin) and balancing the factors for and against extradition, the judge found that the Appellant's extradition would not be disproportionate to the interference with the article 8 rights of him and his family that it would involve.
10. The Appellant, through Mr Middleton of Counsel and with permission granted by Cranston J on 15 January 2016, now appeals against the District Judge's ruling on article 8, on the ground that she made a material error in relation to delay, without which she could (and, it is submitted, properly would) have concluded that this was a case of culpable delay by the Polish authorities; and that the article 8 balancing exercise fell on the side of not allowing extradition to proceed.
11. It is well-settled that extradition engages article 8, because of its potential to interfere with family and private life rights of both the requested person and his family. An exercise is therefore required of balancing the interference with those rights that would result from the extradition on the one hand, and the public interest in extraditing offenders to serve lawful sentences for offences they have committed on the other.
12. This exercise was particularly considered by the Supreme Court in Norris v Government of the United States of America [2010] UKSC 9 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25; and by the Divisional Court recently in Celinski (supra) which helpfully emphasised the following:

(i) The public interest in ensuring extradition arrangements are honoured is very strong, particularly in Part 1 cases where the principle of mutual confidence and respect between EU territories which underpins the arrangements must be recognised and acted upon. The cases make clear the constant and weighty public interest in extradition such that it would be an exceptional case in which article 8 rights outweigh the State's international treaty obligation to extradite - "exceptional" here meaning "rare", exceptionality being a prediction and not a test (see, e.g., HH (supra) at [31]-[32]).

(ii) A structured approach, balancing pros and cons of extradition in context, should be adopted.

(iii) On appeal, there is but one question with which this court has to deal: did the District Judge make the wrong decision in respect article 8, i.e. was the outcome wrong?

13. As I have already indicated, the District Judge referred to the relevant authorities, and had the correct approach well in mind. However, Mr Middleton submits, with some considerable force, that the judge unfortunately erred in respect of the material facts. In paragraph 46 of her judgment, the judge, in finding that there had been no culpable delay by the Polish authorities, said that the Appellant's sentence was finalised on 3 July 2008 (i.e. when his appeal was rejected) but was not activated until 14 February 2014, the EAW being issued on 29 October of that year, "a gap of only 8 months". In fact, the suspended sentence was activated on 14 February 2011, and the EAW was not sought until April 2014 and issued of October of that year, i.e. three and a half years after the activation of the sentence. That delay is unexplained; as is the delay between the offence in 2006 and the Appellant's sentence in 2008. Mr Middleton submits that, on the basis that the time between sentence activation and the issue of the EAW was years, rather than months, the article 8 balance falls firmly against extraditing the Appellant.
14. It is clear that even where delay is not such as to trigger the statutory bar found in sections 11 and 14 of the 2003 Act, it is or may be a relevant factor for article 8 purposes. As a result of the passage of time, a requested person may have built up a life in the United Kingdom, with consequent private life and family life rights and interests not only of himself but of other people, such as a spouse or partner and children. Where the requesting state has been culpable in the delay, such that the requested person and his family might (e.g.) have been lulled into a false sense of security, those rights may command considerable respect. However, where the requesting state has not been culpable, it is unlikely that they will do so, particularly where the requested person is a fugitive who has fled a country to avoid the consequences of his offending.
15. As Collins J emphasised in Wolack v Regional Court in Gdansk, Poland [2014] EWHC 2278 (Admin) at [9]-[10], culpability here cannot simply be assumed as a result of the passage of time unless, as a result of the length of the period alone or that period taken with other specific factors in the case, it appears unreasonable for the authority not to have issued the warrant earlier. In particular, Collins J rightly noted that it may take some time to locate an actual or suspected offender, particularly if he is a fugitive; and authorities do not have infinite resources and therefore have to prioritise matters.
16. In this case, Ms Pottle for the Respondent submits that the District Judge's error in respect of the date was one of transposition not substance because, elsewhere in her judgment (e.g. at paragraphs 5 and 18), the judge correctly sets out the activation date. However, I cannot accept that. In considering the delay for article 8 purposes, in my view the judge clearly proceeded on the basis that the EAW was issued only a few months after the suspended sentence was activated. That period is relevant to the article 8 balancing exercise. That factual basis was wrong. Consequently, this court must perform the article 8 balancing exercise itself to see whether the District Judge's conclusion, that it would not be disproportionate to extradite the Appellant, was or was not wrong. Of course, this court is well able to do that on the basis of the findings of fact made properly by the District Judge. I stress that, other than the finding of fact in relation to the period between the activation of the suspended sentence and issuing of the EAW, the findings of fact made by the District Judge were open to her to make on the evidence, and are unchallengeable. Indeed, Mr Middleton did not suggest otherwise.
17. In respect of the actual delay in this case, on all of the evidence, I am unpersuaded that it was culpable on the part of the Polish authorities. I have to proceed on the basis of the facts as found by the District Judge on the evidence presented to her, including oral evidence. She found that the Appellant left Poland without telling his probation officer or anyone else in authority where he was going. He failed thereafter to contact any such person. As a result, he was found to be in breach of the suspended sentence order, and the sentence activated in 2008. I accept the force of the submission of Mr Middleton that there appears to have been a gap of about three years between the activation of the suspended sentence and the issue of even a domestic warrant, the EAW following about six months later. That is a substantial period of time; but I do not accept that the length of time alone, or that period taken with the other known circumstances of this case, is sufficient to make a finding of culpability. The District Judge found, as she was entitled to do, that the Appellant travelled to the United Kingdom and stayed here having ended contact with his supervision probation officer in full knowledge that he was then in breach of the suspended sentence order. Without descending to speculation, it is clear that, in those circumstances, the authorities in Poland would have had to take certain steps. For example, there was an appeal against the activation of the suspended sentence order (see box F of the EAW). No length of time is given in respect of that step, but it must have taken some time. Furthermore, the Appellant's own actions in leaving Poland without providing details of where he was going must have led to, or at least substantially contributed to, the delay.
18. The factors which tend against extradition are, briefly, as follows:
19. There is the fact of the delay (albeit with the caveats that I have already expressed).
20. Mr Middleton submits, and I accept, that the offence and the sentence are not of the most serious kind.
21. (iii) The Appellant has a settled family life in the United Kingdom with his wife and children, and has had such a life since 2009. For practical purposes, the children have not known life anywhere else.
22. (iv) The Appellant is a substantial contributor to the family budget and, if he is extradited, that income will be lost and it will be missed by the family.
23. (v) Extradition, and the consequent separation of the family, will have an adverse effect on all of the family members, both emotional and practical: especially, no doubt, for the two children. I accept that there is a possibility that the Appellant's wife (who does not have any great support in the United Kingdom in the form of family or friends) may find it difficult to cope.
24. On the other hand, the main factors favouring extradition are:

(i) The importance of the United Kingdom fulfilling its obligations under the EAW scheme, and the requirement for mutual confidence and respect for the decisions of a Part 1 judicial authority, to which I have already referred.

(ii) The crime for which the Appellant has been convicted, whilst not the most grave, is regarded in Poland as sufficiently serious to attract a significant custodial sentence. The Polish sentencing regime is a matter for its own authorities. The fact that the crime he committed would not necessarily attract a custodial sentence here is not to the point. The importance of maintaining the sentencing regime in Poland, which allows for relatively short suspended sentence on condition of regular reporting, is a matter which has been noted as attracting particular respect (see Celinski at [13(2]).

(iii) The Appellant's children will remain in the care of their mother.

(iv) Here, the state is capable of looking after families who are left in need as a result of a family member being extradited.

25. In my judgment, although the District Judge erred in the factual basis upon which she proceeded, her conclusion on the article 8 issue was nevertheless correct. She said this:

1. "52. On the evidence before me there is nothing to suggest that the negative impact of extradition on the financial, practical and emotional stability of Mr Bialek and his family is of such a level that the court ought not to uphold this country's extradition obligations.

2. 53. Although the article 8 rights of Mr Bialek and his family are engaged, I am satisfied that extradition remains proportionate and necessary in the circumstances. I am satisfied that Mr Bialek's extradition would be compatible with his convention rights."

26. With that, I agree. In my judgment, there is nothing in this case to override the strong public interest in extraditing convicted offenders to serve prison sentences imposed upon them by other EU countries.
27. For those reasons, I dismiss this appeal.