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: On 8 December 2015, in the Westminster Magistrates' Court, District Judge Hammond ordered the extradition of Robert Juszka to Poland pursuant to a conviction European Arrest Warrant. Poland had requested the extradition of Mr Juszka to serve a sentence of 15 months' imprisonment imposed upon him for two offences of attempted theft of motor cars. Mr Juszka now appeals with the permission of the court against that decision.
2. The brief chronology of relevant events is as follows: The appellant was born on 20 September 1983, and so he is now 32 years old. On 27 January 2002, when he was aged 18, he and others attempted to break in to two parked cars. The account of the events contained in the appellant's proof of evidence would certainly amount to a complete defence to the charges in this country, and it is difficult to believe that Polish law would have convicted him of these offences if it had been accepted that was, as he claims, merely standing by when two of his friends decided to see whether or not they could open the car door. I therefore think it legitimate to infer that the appellant either did not advance that line of defence in the Polish court, or, if he did, it was disbelieved.
3. That said, the offences are plainly not in the first rank of gravity. It is, as Mr Hawkes, on behalf of the appellant rightly submits, very unlikely that they would result in a custodial sentence in this country in the case of a first time offender, as the appellant was. It is not, however, for this court, save in exceptional cases to seek to impose its own view of appropriate sentencing on the courts of another competent jurisdiction.
4. It appears that the appellant was arrested and taken to the police station on the very day of the offences. It was, however, not until 22 November 2005, nearly 4 years later, that he was convicted of them and sentenced to imprisonment for a term of 1 year and 3 months.
5. An appeal against the conviction and/or sentence was dismissed on 7 March 2006. The appellant, with the assistance of his father, applied to the court for the execution of that sentence to be postponed. His initial request for a postponement of 6 months was granted. His subsequent request for a further postponement of 6 months was only granted to the extent of a postponement of a little over 5 months. A further application for an extension of the postponement beyond that time was refused.
6. In December 2006, very soon after the period of postponement had ended, the appellant left Poland and came to the United Kingdom. He returned to Poland for a few days in 2007, when it appears he did one day's training as a military reservist. With that exception, as I understand it, he has been in the United Kingdom since December 2006. In 2009, he began his relationship with the woman who is now his wife and the mother of his child.
7. On 6 July 2010, the European Arrest Warrant was issued. Reference was made on the face of the warrant to the address in this country which had been the appellant's address when he first came here.
8. In 2013, the appellant's child was born.
9. On 30 March 2015, Poland asked this country to execute the European Arrest Warrant. The warrant was certified on 1 April and on 6 July 2013 the appellant was arrested.
10. The issue which arises on appeal - following the abandonment of another ground, which need not be further mentioned - is whether the learned District Judge fell into error in assessing the Article 8 rights of the appellant and his family pursuant to section 21 of the Extradition Act 2003 and/or in applying the wrong legal test as she undertook that assessment.
11. I deal first of all with the submission made by Mr Hawkes that the District Judge applied the wrong test. In her judgment at paragraph 41, she indicated that in relation to the Article 8 section 21 argument she had had regard to the familiar trio of leading decisions in Norris v United States [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, and Polish Judicial Authorities v Celinski & Ors [2015] 1 WLR 551.
12. She went on in the following paragraphs to set out the factors against extradition and in favour of extradition. She indicated at paragraph 45 that she had not found the case an easy one to decide, and went on to acknowledge that real hardship and distress would be caused to the appellant and his wife in the event of extradition.
13. In the course that of paragraph, she said this:

"Sadly, however, the impact of extradition on this family could not be described as exceptional. The impact on this family will be typical of the normal and unfortunate consequences of extradition."

14. She then went on in her next paragraph to say this:

"The threshold is set high. Therefore, for an Article 8 challenge to succeed, I would have to find that there are 'striking or unusual' facts in J's case to displace the 'weighty importance' of the United Kingdom upholding its treaty obligations."

15. She then proceeded in the following paragraphs to give her assessment of the balance of competing considerations.
16. Mr Hawkes, in his helpful submissions, submits that in the second of the passages I have quoted, the District Judge applied entirely the wrong test. He suggests that the phrase "striking or unusual" is taken from a passage in the judgment of Lord Mance in Norris(supra), which was quoted by Baroness Hale in HH(supra).
17. In his judgment in Norris, Lord Mance was addressing the issue of the test to be applied when considering Article 8 in the context of extradition.
18. He said at paragraph 108:

"There is a possible risk about formulations which suggest in general terms that any person seeking to avoid extradition under Article 8 must cross a 'high threshold' or establish 'striking and unusual facts' or 'exceptional circumstances.' They may be read as suggesting that the public interest in extradition is the same in every case (in other words, involves a threshold of constant height, whereas in fact it depends on the nature of the alleged offence involved) and also that the person resisting extradition would carry some form of legal onus to overcome that threshold, whereas in fact what are in play are two competing interests, the public and the private, which have to be weighed against each other...".

19. Baroness Hale, as I have said, cited from that paragraph in the course of her speech in HH(supra). She went on, in the familiar passage at paragraph 8, to draw the following conclusions from Norris(supra):

"...

2. There is no test of exceptionality in either context.

3. The question is always whether the interference in the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

4. There is a constant and weighty public interest in extradition: that people accused of crime should be brought to trial, that people convicted of crime should serve their sentences, that the United Kingdom should honour its treaty obligations to other countries and there should be no 'safe havens' to which either can flee in the belief that they will not be sent back.

5. That public interest will always carry great weight but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

6. The delay since the crimes were submitted may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

7. Hence it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

20. When the judgment of the District Judge is read as a whole, I do not accept that it is correctly characterised by Mr Hawkes as applying completely the wrong test. Certainly the use of the phrase "striking or unusual" in the passage I have quoted is unfortunate, because it does suggest that perhaps a wrong test was being considered. But when one looks at the passages surrounding that phrase and reads the judgment as a whole, it is in my view clear, as Mr Seifert submits in his helpful submissions for the respondent, that the judge did correctly perform the Article 8 balancing exercise required of her by Celinski(supra). It seems to me, in short, that notwithstanding the unfortunate use of the phrase to which I have referred, the District Judge did not simply ask herself: "Is this an exceptional case?" Rather, she undertook a proper and careful review of the competing considerations in order to determine whether the public interest in extradition outweighed the interference with the Article 8 rights of the appellant and his family.
21. For those reasons, I am unable to accept the ground of appeal in so far as it is based upon the proposition that completely the wrong test was applied.
22. I turn, then, to consider the challenge made to the District Judge's performance of that balancing exercise. Against the background of the offending being of no particular seriousness, Mr Hawkes submits that the District Judge failed to give sufficient weight to the very long periods of unexplained delay and, in particular, failed to analyse the impact of that delay upon the Article 8 rights of the appellant and his family. He submits that it is particularly harsh for a man who now has important family responsibilities to be sent back to Poland to serve a sentence, in itself a very severe one by English standards, for unsuccessful offending nearly 14 years ago.
23. As to the issue of delay, there can be no doubt that the District Judge was alive to it. In her summary in the factors in favour of extradition being refused, she included both of the following:

"(ii) There is a significant lapse of time between the original offence and the date of the prosecution (3 years), a further lapse of time between the date on which the warrant was certified and the issue for the EAW (5 years), all of which is unexplained.

(iii) Timing of the delay, especially important given that in that time, J has moved 'from boy to man' and the course of his life has changed utterly. He has a wife and a young son. He is a hard working, honest family man.

...

(vi) The nature and the extent of the delay is such that it is appropriate to take it into account in the balancing exercise, especially so where the rights of the child are also engaged as here, and the child's welfare must be accorded significant weight in those circumstances."

24. The District Judge, as I have indicated, said that she had not found it an easy case to decide. She expressed "a great deal of personal sympathy" for the appellant, and reminded herself that the interests of the child may be a feature which, for a finely balanced case, tips the balance in favour of discharging the warrant. She acknowledged in strong terms the real hardship and distress which extradition would cause to the members of the family. She went on to say this:

"48. On the face of it, the sentence itself does indeed appear to be harsh and the impact of the delay, much of it unexplained, would render its execution harsher still. There seems little doubt that on the facts as stated in the EAW that in this jurisdiction, as a first offence for a 19 year old, a non-custodial sentence would have been the likely outcome. However, I remind myself that it is rarely, if ever, appropriate on a conviction warrant to consider whether the sentence was significantly different from what a United Kingdom court would have imposed.

49. Furthermore, I remind myself that J stayed away deliberately and in full knowledge that he was required to serve this sentence. All avenues of appeal open to him in Poland had been tried and failed. He can never have had a false sense of security by virtue of the delay. If a more lenient sanction were to be appropriate now, given J's change in circumstances and the 14 years that has elapsed since the offence, the place for such consideration is in Polish courts, not ours. This is their case. J lost his appeal against sentence and his application to defer the sentence was ultimately rejected. I do not know the reasons why, that is not a matter for me.

Fifthly, whilst I accept that J has been living here openly, registering on the electoral register, and even sending his passport to Poland in 2015 with his wife's in order to change her name to Juszka, he has never notified the Polish authorities of his address in the United Kingdom which he admits he knows is in breach of his notification requirements in place since 2002."

25. In the light of those passages, it is, in my judgment, not possible to argue that the District Judge was not alive to the relevant considerations and did not take them fully into account.
26. It is perfectly obvious from the number of passages in her judgment that she found it a finely balanced decision and had personal sympathy for the good work which the appellant had done since coming to this country. She was, however, entitled to take into account and plainly did take into account that the appellant had not changed his formal address with the Polish authorities.
27. I accept Mr Seifert's submission that the courts should not be too quick to assume that there was no good reason for delay and that it would have been easy for the Polish authorities to locate one of their citizens in this country. But perhaps more significantly, the District Judge rightly pointed to the fact that the passage of time in this case really began when the appellant deliberately decided to remain away from Poland rather than serve his sentence. She also pointed, rightly, to the fact that in those circumstances he could never have had any false sense of security.
28. Sad though his personal position and that of his family are, there is, in my view, no escape from the proposition that he has formed that private life in this country and his family life in the full knowledge that he was wanted to serve a sentence in Poland and that one day he would probably have to do so.
29. For those reasons, and notwithstanding Mr Hawkes' submissions, I have come to the conclusion that the District Judge here did in fact apply the correct test, notwithstanding a passage in her judgment which could suggest otherwise, and that she was entitled to reach the conclusion she did that the public interest in extradition outweighed the interference with the Article 8 rights of the appellant and his family.
30. As she said in her concluding paragraph:

"Such interference is a sad but proportionate and justified consequence of extradition which on these facts I must order pursuant to section 21(3) of the Extradition Act 2003."

31. In my judgment, she was not wrong to reach that conclusion. It follows that this appeal must fail. It is accordingly dismissed. Thank you both.