England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		22 March 2016

1. MR JUSTICE HOLROYDE: I will just rule on that point. When Mr Justice Ouseley considered this matter at the permission stage, he granted permission and in his written reasons referred to "something of an evidence gap" in relation to certain aspects of the case which, as the learned judge put it, appear "not to have been explored by anyone, nor to have featured much before the District Judge."
2. In the light of those observations, the judicial authority were requested to provide further information. They have done so, and Ms Townshend on their behalf invites the court to receive it in evidence.
3. Mr Hawkes, on behalf of the appellant, objects, saying that this is evidence which could and should have been obtained at an earlier stage and should not be adduced at the appeal stage. He adds that he does not feel able to accept the evidence as accurate and complete because, as he understandably puts it, he is not himself master of Polish criminal law and procedure and he would therefore need to seek to expert assistance before knowing whether this additional material might be rebutted.
4. The competing submissions give rise to a situation in which, as I suggested to Mr Hawkes in argument, he is effectively inviting the court to proceed in ignorance of certain matters which could be dealt with on a sounder footing if the evidence were admitted. But Mr Hawkes' response to that is, as I have indicated, that he is in no position to say whether the court would then be on an entirely solid foundation or whether there might be more points to be made if more time were available.
5. I have considered the competing submissions. It does not seem to me that Ouseley J directed the obtaining of further information or evidence, he merely remarked upon the absence of it. It also seems to me that the absence was a glaring one. Ms Townshend suggests, no doubt correctly, that this particular point had not been highlighted as an argument on the appellant's behalf before the District Judge. But be that as it may, it seems to me that anyone looking at the chronology of events here would immediately wonder why it was that the suspended sentence was activated by reason of the commission of the further offence but that the activation was not implemented until after the appellant had served his sentence for the later offence and had been released.
6. In those circumstances, it does seem to me that this is evidence which could and should have been obtained much earlier. It is too late now and I decline to admit it.
(The judge heard further submissions) ---------------------------------------
7. MR JUSTICE HOLROYDE: On 16 November 2015, in the Westminster Magistrates' Court, District Judge Rose ordered the extradition to Poland of Mr Patrik Gorniak, pursuant to a conviction European Arrest Warrant. Poland requested the extradition of the appellant so that he can serve a sentence of 2 years' imprisonment.
8. This is the hearing of the appellant's appeal against that decision. I have been greatly assisted by the written and oral submissions of Mr Hawkes, on behalf of the appellant and Ms Townshend, on behalf of the respondent.
9. At an early stage of the hearing an issue arose as to the admissibility of certain information provided by Poland in response to a recent request for further information. It is unnecessary to go into the details of the circumstances in which that issue arose. It suffices for present purposes to say that I ruled that the evidence should not be admitted. I therefore leave it entirely out of my consideration in determining this appeal.
10. The circumstances giving rise to the European Arrest Warrant, in summary, are these. As a young man of 19, the appellant committed, between October 2009 and April 2010, a series of offences of burglary or attempted burglary. Many of these were unsuccessful burglaries of what appear to have been sheds or huts on allotments. As I read the information contained in the European Arrest Warrant, it would seem that, in English terms, these were offences of burglary with intent to steal which came to nothing because the appellant found nothing worth taking. Some of the offences, albeit a minority of them, were rather more substantial and serious.
11. I do not think it necessary to go into the details of the individual offences. It is sufficient, in my view, to conclude that the totality of the offending cannot be regarded as trivial. That said, it was by no means a particularly serious course of offending and Mr Hawkes rightly emphasises the fact that it was a series of offences committed by a much younger man than the appellant now is.
12. On 7 October 2010, the Polish court imposed for those offences sentences totalling 2 years' imprisonment, suspended for 3 years. There was either no appeal, or at any rate no successful appeal, against that sentence.
13. Pausing there, it should perhaps be noted that the sentencing hearing took place within 6 months after the last of the series of burglary offences.
14. Within a year of that sentence being imposed, the appellant unfortunately committed a further and similar offence. For that he was, on the 18 October 2011, sentenced by the Polish court to a term of imprisonment for 1 year. His time in custody ran from 11 August 2011 to 26 June 2012. At that stage, no order was made as to the suspended sentence earlier imposed.
15. A few days after his release from that 12 month sentence, on 10 August 2012, the appellant informed the probation officer who was supervising him (as one of the conditions of the suspended sentence) that he wanted to go to the United Kingdom with his girlfriend. There is, in the papers before the court, a certified copy of the relevant document, from which it is apparent that the appellant declared that he planned to go abroad on 17 August 2012 in order to take a job in the United Kingdom, which he said was essential in order to enable him to pay the various monetary orders which were part of the conditions of his suspended sentence. He gave an address in London, a UK phone number and an email address and declared: "I am coming back in October 2012."
16. It appears that the appellant had earlier given to the court (as his registered address) the address of his mother. He did not at any stage formally indicate to the court that that was no longer an appropriate registered address. That was despite the fact that, according to his evidence in the court below, he had fallen out with his mother and she did not pass on any correspondence received for him at her address.
17. The appellant was required to attend the court in Poland in October 2012. The evidence before the lower court shows plainly that he knew that that was the case. He also knew that the purpose of the hearing related to the potential activation of the suspended sentence. He chose not to attend. As the District Judge put it in her judgment:

"What is entirely apparent from the documentation now available was that Mr Gorniak was well aware that there was to be a hearing in October 2012 regarding the activation of the suspended sentence but he did not attend. It seems from the final further information that the activation of that sentence was 'obligatory' once Mr Gorniak had 'committed another similar intentional offence within the period of probation'. He chose to absent himself from that hearing, and has not returned to Poland since."

18. I should make clear that the District Judge's reference there to "further information" was of course a reference to information which had been received prior to the hearing in the lower court.
19. In those circumstances, the District Judge found that the appellant had been a fugitive since 24 October 2012, which was the date on which the Polish court activated the 2 year suspended sentence. There has been no challenge to that finding.
20. Following the activation of the suspended sentence the appellant remained in this country and did not return to Poland. On 9 January 2013, he wrote again to his probation officer making it clear that he was not intending to return to Poland but stating that he was obeying, as he put it, "the conditions of my conditional release."
21. Whilst in this country, the appellant has led an industrious and law abiding life. On 18 April 2013, a child was born to him and his partner. He and his partner, and now their young child, live with his partner's parents. They came to this country many years ago. The appellant's father- in-law unfortunately suffers ill health. His wife cares for him and receives benefit on that basis.
22. The European Arrest Warrant was issued on 27 June 2014. It was certified on 26 February 2015. The appellant was arrested on 8 March 2015.
23. The ground of appeal is that the District Judge was wrong to find that extradition would not be a disproportionate interference with the Article 8 rights of the appellant and his family. His family, of course, includes for this purpose the young child, whose best interests must be a primary consideration of the court.
24. Mr Hawkes advances the following matters, in particular:
25. First, he points to the period of time which has passed since the appellant committed the offences to which I have referred. He is critical of the leisurely pace at which the European Arrest Warrant was issued and certified. He makes the point that the Polish authorities have known since 2012 where the appellant was to be found. Mr Hawkes submits that it is a curious feature of the case that the Polish authorities appear, nonetheless, to have continued sending important correspondence to an address in Poland at which they no longer had any reason to think that the appellant was living.
26. The delay occurred, submits Mr Hawkes, during an important period of the appellant's young life. In that period he has settled down, has turned his life around, and has acquired substantial family responsibilities. He is the breadwinner for his extended family: in addition to earning the means to provide for himself, his partner and his child, he also contributes financially to his parents-in-law. He is plainly very active in the day-to-day care of the child, albeit that his partner is the primary carer. There was also evidence that he was active in assisting with the care of his father-in-law and providing valuable assistance in that regard.
27. Secondly, Mr Hawkes points to the nature of the offending. He submits it is for the most part comparatively petty offending. In this country, he suggests, many of the offences would probably have been listed on a schedule of other offences to be taken into consideration.
28. Next, Mr Hawkes submits that there was no evidence before the District Judge as to the financial position of the family if the appellant were to be extradited. In that regard, the District Judge said this in her judgment:

"He provides financial support for his partner and child. There is no information about whether she could make the claim for State benefits if Mr Gorniak were extradited. The couple does not give evidence that they have made enquiries about that."

29. Mr Hawkes submits that the position in law is that the appellant's partner's status in this country is dependent upon her relationship with him, he being an EU citizen exercising his employment rights in this country. Mr Hawkes submits that the law is that because the partner has not herself worked in this country and because their child is not yet of school age, she would, in the event of his extradition, not be entitled for benefits. Moreover, submits Mr Hawkes, she would have no entitlement to remain in this country subject to what he suggested might be a speculative application for leave to remain.
30. In addition, submits Mr Hawkes, whatever may have been the parents' financial position in the past, the reality now is that the appellant's income contributes to the overall running of the household, so that his departure, if extradited, would also affect the financial position of his parents-in-law.
31. Mr Hawkes submits, rightly, that the family unit must be regarded as a whole. He argues that the District Judge failed to give sufficient weight to this aspect of the case and in particular failed altogether to consider what the position would be if the appellant's partner has no entitlement to remain in this country or to receive State benefits.
32. Mr Hawkes collects his submissions together in making the point that if all criminal matters in Poland had been dealt with at the same time, the appellant would have served a single sentence for both the later offence and for the activated suspended sentence and so would never have been in the position of family responsibility in which he currently find himself.
33. Ms Townshend, for the respondent, submits that the District Judge's decision cannot be said to be wrong. As to the availability or otherwise of State benefits, she submits that this is not a matter which was canvassed at the lower court, at which hearing she was present. As to the course of the appellant's offending, she submits that the District Judge was right to have regard to the fact that following the imposition of a suspended sentence he went on to commit a further offence. The significance, submits Ms Townshend, is that the importance of extradition is particularly acute where the requested person is sought to serve a sentence which was a suspended sentence activated by the domestic court following his commission of a further similar offence.
34. As to delay, Ms Townshend submits that there is no very substantial delay in this case. In any event, the appellant has always known that he would have to serve his suspended sentence once it was activated and his fugitive status, she submits, counts heavily against him in this regard.
35. Summarising the competing arguments and the competing submissions as to whether or not the District Judge was entitled to reach the decision she did, the key point comes to this. Mr Hawkes argues that although the delay here is not of enormous length, there was, nonetheless, delay, and it was during the period of delay that the appellant turned his life around and acquired the family responsibilities which are now of such importance. Ms Townshend submits that, sad though the personal circumstances of the appellant and his family are, there has been little if any culpable delay on the part of the requested authority. The appellant is himself responsible for much of the passage of time and he has formed his private and family life in this country in the knowledge that his position was precarious and that he was wanted to serve the sentence in Poland.
36. It is, in my judgment, a finely balanced case. The District Judge appears to have taken a similar view. She conducted the exercise required of her by Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin) and listed the factors favouring extradition and the factors militating against extradition.
37. It seems to me that she listed all the relevant points. The possible exception is that she did not specifically refer to the financial position of the appellant's partner in the event of extradition. She cannot, however, be criticised for any omission in that regard because it does not appear that any particular submission was made to her on that point. It does seem to me that the application to an individual of the benefit system is a matter which is likely to require evidence, and the simple position is that there was no evidence before the District Judge as to what the financial position of the appellant's partner would be.
38. In the end, the District Judge concluded as follows:

"When the balancing exercise is conducted, I have conclude that unfortunately the factors in favour of extradition do outweigh those against. Extradition will affect the private and family life of those concerned but the interference is not disproportionate in these circumstances."

39. In my judgment, that is a conclusion to which she was entitled to come and which cannot be said to be wrong. It is a sad case because the impact upon a number of persons is a substantial one, but in the end I accept Ms Townshend's submission that the passage of time on which Mr Hawkes relies is largely the result of the appellant's own conduct, and he has formed his private and family life in this country knowing that he was wanted to serve a sentence in Poland and seeking to avoid doing so.
40. For those reasons, this appeal fails and is refused. Is any other order required of me, Ms Townshend?
41. MS TOWNSHEND: It is not.
42. MR JUSTICE HOLROYDE: Thank you very much.