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
		10 February 2017

Mr Justice Blake :

Introduction

1. This is an appeal from a decision of (District Judge) DJ Grant dated 8 December 2015 ordering the appellant's return to Poland on a conviction warrant. The case has the unusual feature that this is the second time that the appellant has been extradited to Poland for these offences.
2. Between 17 and 31 January 2005 he committed three offences of fraud obtaining credit worth some £600. The appellant then came to the UK where he lived with his wife and two children of the marriage.
3. In 2010 he was arrested and returned to Poland on an accusation warrant and on 8 July 2010 was given a sentence by the Polish Court of 1 year 6 months imprisonment that was conditionally suspended for five years. He spent just short of three months in custody before sentence. He then returned to the United Kingdom.
4. In July 2013 the Polish court implemented the sentence of imprisonment in his absence. There was nearly 16 months of the term still to run. A domestic warrant to enforce this order was issued on 7 February 2014 and an European Arrest Warrant was issued on 22 June 2015.
5. He was then arrested on the EAW on 29 October 2015 and promptly brought before the City of Westminster Magistrates Court. The hearing was put over to December. He was unrepresented at the second hearing. He made an application for an adjournment for legal representation that was refused. Although he gave evidence on his own behalf he had not prepared a witness statement or bundle of evidence and may have confined himself to answering direct questions rather than giving an overview of his circumstances. He now appeals with the leave of the High Court. The question is whether the DJ was wrong in his conclusions that the public interest in extradition outweighed the interference with the appellant's private and family life and was thus justified and proportionate.
6. At the hearing of this appeal, the appellant seeks to place the following items of fresh evidence before the court:

i) A new translation of part of the arrest warrant.

ii) A detailed psychiatric report into his mental health and additional medical notes.

iii) A witness statement and supplementary updates from himself and his present partner as to his domestic circumstances.

iv) E Mail communications with the Polish court in the spring of 2016 .

7. At the outset of the appeal I indicated that I would receive the first two of these items as fresh evidence not reasonably available to an unrepresented defendant at the original hearing but would consider the remaining items de bene esse pending conclusions on some of the arguments advanced. In the event for reasons given below, I have decided to admit all the evidence in this appeal although I am conscious that the account of the appellant has not been tested in cross examination and the DJ reached an adverse view on much of his account.
8. It is not possible to remit an appeal by the person to be returned (RP) to the magistrate's court for re-determination; neither party suggested that there was a case for adjourning this appeal to permit cross examination to take place.
9. In addition to determining the substantive arguments in the case, Ms Nice invited me to give guidance as to the function of the DJ in a case where the requested person in an extradition hearing is unrepresented.

The DJ hearing and decision

10. The DJ refused the appellant's application for an adjournment indicating that there had been ample time since the last appearance in October to obtain representation. Attached to the respondent's skeleton argument in this case is a helpful typed note of what then ensued.
11. The appellant indicated that he resisted extradition and was recorded as saying:

i) There were no conditions attached to his suspended sentence. He did not have to report to the probation or the police. As there were no conditions he wasn't in breach.

ii) He informed the Polish court that he was going back to the UK which he considered his home and to his family, the court agreed.

iii) On the day he was discharged / released from prison he got on a coach and came to the UK.

iv) Nobody informed him; they all have his address here but they did not inform him there was a problem.

v) He employed a solicitor and he put forward an application to re-suspend sentence again because of his health problems.

vi) "My health is very bad I had two heart attacks, severe problems with my lungs, asthma and high blood pressure".

vii) "I understood the sentence was 18 months suspended for five years. The time I was in prison up to the hearing that was used instead of paying the court costs. I was in prison for just under three months. They calculated the costs they told me that each day in prison would be about 20 zloty so I was not required to pay any court costs".

viii) It was agreed and discussed with the court and prosecution that he will not have a probation officer in this case because he was going back to England

ix) At this point the DJ interjected and indicated that he has never heard of a suspended sentence that has no conditions. The appellant repeated that there were no conditions because he went to prison voluntarily.

x) The DJ said: No – you were extradited under accusation warrant? A: Yes I was and I went straight to prison and after about three months there was a hearing and I was then released.

xi) DJ: Why impose a suspended sentence that can never be activated? A: the condition was that I would not go back to Poland in this period of time and I stay out of trouble.

xii) DJ: Why not ask your solicitor to make enquires about why suspended sentence was activated? A: The information is not obtainable.

xiii) DJ: that is a ridiculous thing to say? A: that is Polish law.

xiv) DJ: On what do you base that?

xv) DJ: Did you ask lawyer to find out why activated? A: That was the first question I asked, he was not informed. It doesn't say in the EAW why it was activated.

xvi) The appellant then supplied information about his health problems on his return, the breakdown of his marriage, a period in prison here, admission to a psychiatric hospital, a period of homelessness and the fact that he couldn't come to terms with having lost his family. Assistance was given to him by his ex-wife to find accommodation and sought himself out; he now has a good relationship with ex-wife and children who visit and stay every weekend as they live not far away.

xvii) "Everything is going well at the moment I work 4 hours a day as my health does not permit me to work longer. If I am extradited this is like a death sentence here I have life and medical care. I did not receive care in prison in 2010; when I asked for a tablet they did not give it; when I had an asthma attack and asked for an inhaler they said open the window; 16 prisoners in a cell supposed to accommodate four; in the summer extremely hot and basically suffering because of my medical problem. After three weeks I was given an appointment to go see the doctor and was told the doctor was too busy too many patients to see."

xviii) There was no cross examination.

xix) Submissions were made on the balance of competing Article 8 factors. Judgment was reserved.

12. The DJ's written decision includes the following:

"Although the warrant is silent about the reason for the activation of the suspended sentence the activation took place in 2013 which suggests that the requested person failed to comply with his probation requirement"

He went on to conclude:

"I found Mr Weszka to be an unreliable and unsatisfactory witness on this issue of his sentence and Polish judicial procedure. It sounded very unlikely that he was sentenced to imprisonment subject to a condition that he did not return to Poland. I did not believe him when he said that the term of his suspended imprisonment was not subject to a probation requirement and that his Polish lawyer was unable to find out why his suspended sentence was activated."

"I find that whilst he is not a classic fugitive he is nevertheless a fugitive who was unlawfully at large when he travelled to the United Kingdom after his sentencing hearing in 2013 (sic- in fact the sentencing hearing was in 2010). In reaching that view I was assisted (by) the decision of Mr Justice Supperstone in the Budzik [2015] EWGC 2856 (Admin) which was an appeal against a decision I made in this court."

Errors in the DJ's decision

13. From the information now available to this court there are a number of problems with the DJ's fact finding.
14. The decision of the DC in Wisniewski v Poland [2016] EWHC 3896 Admin, makes it clear that being unlawfully at large is an objective requirement calculated by reference to the date when the RP was ordered to return to custody rather than the day he first came to the UK in the knowledge that he was subject to a suspended sentence. The decision of Supperstone J on which the DJ relied to contrary effect was based on a decision of Ouseley that was disapproved on this point at [52]. This does not necessarily undermine the DJ's finding that the RP cannot rely on delay because he had left Poland in breach of the terms of the suspended sentence and in the knowledge that it might be implemented in absentia.
15. However, for such a fact to be established it is necessary for the requesting state to prove the terms of the sentencing court's order and the breach of the terms of the court's order to the criminal standard. This cannot be lightly inferred from knowledge in previous cases: see the comment in Wisniewski itself at [66] and the observations of Simon LJ in Jankowski [2016] EWHC 747 (Admin) at [20]. Here the EAW was uncertain on the conditions of the original suspension and silent on the reason why the suspended sentence was activated. The English translation of Box B reads:

'judgment of the District Court Poznan of 8^th July 2010, imposing an aggregate sentence of 1 year and 6 months imprisonment…conditionally suspended for a period of 5 years' probation. Pursuant to a decision dated 10^th January 2013, the District Court. Activated the above custodial sentence.'

16. The DJ was satisfied that there was a breach of the probation requirement imposed and he disbelieved the appellant's evidence to the contrary. In fairness to the DJ the translation of the EAW that was before him said that the sentences of the Polish court was a sentence of imprisonment 'conditionally suspended for a period of 5 years' probation'. In a witness statement made to his solicitors in January 2016 in connection with the present appeal, the appellant continued to dispute that probation was a term of the suspension. A fresh translation was obtained and that reveals that there was no reference to probation in Part B but the imprisonment was 'suspended conditionally for 5 years'. The appellant thus appears to have been right on this issue.
17. Since the DJ's decision, the requested state has provided further information in a letter dated on 24 January 2017. In response to a number of questions from the CPS it has replied as follows:

(i) "3. Execution of the custodial sentence was suspended for a period of 5 years' probation. Probation commenced on the date on which the judgment became final and enforceable.

The requested person requested to be convicted and sentenced without holding a full trial. The court gave a judgment the same day in the requested person's presence."

(ii) "4. The requested person evaded complying with the punitive measure imposed on him by the court through paying compensation to the victim of the offence and disregarded the court's order in this regard. The judgement became final and enforceable on 16/07/10 and although the amount due in compensation was not high, by the date of the activating the judgment the requested person failed to pay any sum in compensation and did not even attempt to try and straighten out the situation. In the course of their enquiries, police officers established that the requested person had moved out from his address and court letters were not called for".

(iii) "6. The requested person was permitted to leave the jurisdiction of the requesting judicial authority but was also required to comply with instruction issued by the competent authorities aimed at executing the custodial sentence."

(iv)"7. The requested person was not required to inform the court of his whereabouts but was also cautioned in the course of criminal proceedings that failing to inform the authorities of his whereabouts will result in court letters being sent to his last known address and deemed to have been duly served."

18. Despite the reintroduction of the word 'probation' in the answer to Q3 above, the parties are agreed that read as a whole there was no requirement of submission to a probation order and cooperation with a probation officer as is often the case when such a term is imposed. The translator must have used 'probation' in its ordinary meaning of 'trial of conduct or character'. There were no conditions as to residence or notification of an address although the court indicated that it would communicate with his address on file.
19. It is now clear that the reason for the court's decision to impose an immediate sentence was his failure to have paid a sum of money by way of compensation to the victims. This condition was not spelt out either in the EAW or in the description of the sentence given at Q.3 above. The amount of the compensation was not spelt out in the letter of 24 January 2017 'although the amount due in compensation was not high'. The court is left to infer that it may have been the £600 odd pounds that were the combined value of the three frauds. The question of compensation was not addressed by the appellant at the hearing, although he indicated that because of the term on remand he was treated as having paid off the court costs. The DJ unsurprisingly did not comment on this issue.
20. In these circumstances, I am satisfied that there were material errors of fact in the DJ's conclusion as to the breach of the conditions of the suspended sentence. It is probable that an adverse view on this important aspect of the appellant's account adversely affected the assessment of his overall credibility. For these reasons I propose to set aside the DJs findings and remake the decision in accordance with the facts that have been established before this court.
21. Further, it seems to me that the DJ's handling of a litigant in person did not conform with best practice as currently recommended to judges in the Equal Treatment Bench Book November 2013 edition. The following paragraphs may be relevant:

"19. The aim is to ensure that litigants in person understand what is going on and what is expected of them at all stages of the proceedings – before, during and after any attendances at a hearing.

20. This means ensuring that:

i) The process is (or has been) explained to them in a manner that they can understand;

ii) They have access to appropriate information ( e.g. the rules, practice directions and guidelines – whether from publications or websites0;

iii) They are informed about what is expected of them in ample time for them to comply;

iv) Wherever possible they are given sufficient time according to their own needs.

40. Judges are often told; 'All you have to do is to ring Mr X and he will confirm what I am saying.' When it is explained that this is not possible, litigants in person may become aggrieved and fail to understand that it is for them to prove their case.

i) They should be informed at an early stage that they must prove what they say by witness evidence so may need to approach witnesses in advance and ask them to come to court.

ii) The need for expert evidence should also be explained and the fact that no party can call an expert witness unless permission has been given to the court, generally in advance.

41. When there is an application to adjourn, bear in mind that litigants in person may genuinely not have realised just how important the attendance of such witnesses is. If the application is refused a clear explanation should be given.

44. The judge is a facilitator of justice and may need to assist the litigants in person in ways that are not appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:

a) Attempting to elicit the extent of the understanding of that party at the outset and giving explanations in everyday language;

b) Making clear in advance the difference between justice and a just trial on the evidence (i.e. that the case will be decided on the basis of the evidence presented and the truthfulness and accuracy of the witnesses called).

The judge's role

48. It can be hard to strike a balance in assisting a litigant in person in an adversarial system. A litigant in person may easily get the impression that the judge does not pay sufficient attention to them or their case, especially if the other side is represented and the judge asks the advocate on the other side to summarise the issues between the parties.

a) Explain the judge's role during the hearing.

b) If you are doing something which might be perceived to be unfair or controversial in the mind of the litigant in person, explain precisely what you are doing and why.

c) Adopt to the extent necessary an inquisitorial role to enable the litigant in person fully to present their case but not in such a way as to appear to give the litigant in person an undue advantage).

22. A number of courts such the Administrative Court and the Chancery Division have created specialist guides for litigants in person as to the procedures and what is expected of them as participants. Reference can be made to such guides when giving directions or adjourning a case. It does not appear that this is the case with the Magistrates Court although I presume that the experience of a foreign national facing extradition without either legal representation or an understanding of the procedure is not uncommon.
23. In this case, although an interpreter was used, it does not appear that there was a language difficulty with communication. However, having been refused an adjournment, it appears to me that it was necessary for the DJ to explain how the hearing would be conducted and the issues that the appellant should address in his evidence before he gave it. An inquisitorial approach, as encouraged in the guide, permits and indeed may require a judge to ask questions designed to clarify the appellant's evidence, but that is not the same as taking on the role of the opposing advocate, challenging the account or testing the evidence to expose its weaknesses.
24. The respondent's note of these proceedings indicates that the judge entered the forensic arena, expressed his own view on the appellant's account while it was being given and did so on the basis of assumptions of Polish practice based on previous experience rather than the evidence adduced by the requesting state which assumptions have proved not to be accurate in material respects. For this reason also I consider that the decision making is flawed.

Remaking the decision

25. The decision of the Divisional Court in Wisniewski clarifies that a person can be a fugitive from justice in the common law sense even if he is unaware that the court has ordered him to serve a sentence. Reviewing conflicting decisions by single judges the Divisional Court concluded per Lloyd Jones LJ at [60] and [62]

"I consider that a person subject to a suspended sentence who voluntarily leaves the jurisdiction in question, thereby knowingly preventing himself from performing the obligations of that sentence and in the knowledge that the sentence may as a result be implemented cannot rely on passage of time resulting from his absence from the jurisdiction as a statutory bar to extradition if the sentence is as a result subsequently activated."

"It is not necessary in order that a requested person be treated as a fugitive that he knows that his sentence has been activated. It is enough that he knows it is liable to be activated because of his breach of the terms of its suspension".

26. Undoubtedly this decision means that a great many more cases of return to Poland to serve a prison term after its suspension has been revoked will arise under the EAW procedure and pure delay in issuing the warrant will no longer act as a bar to return.
27. It is now clear from the supplementary information that it was a term of the suspension of the order that the appellant pay compensation. He did not pay that compensation or ask for further time to pay before the court revoked suspension in 2013. He was in breach of a term of his sentence and accordingly cannot rely on the passage of time since he was unlawfully at large from July 2013 to complain that his extradition was oppressive.
28. He may have misunderstood what the court said in sentence or forgotten that he was due to pay compensation, but his failure to supply a current address where he could be contacted meant that he failed to receive either the terms of the original order, or any follow up correspondence that was sent to him. He was warned of this consequence even though there was no legal duty to supply a current address.
29. Any basis to resist his further extradition must therefore turn on the Article 8 balance, weighing the claims of his private and family life in the UK against the claims of the public interest in extraditing a fugitive a second time to serve a sentence that has now been imposed because of his failure to pay some £600 in compensation.
30. The Polish court was clearly aware that the appellant had moved to the UK as he was extradited from there to face trial. It is plausible that the appellant would have explained to the court that he was pleading guilty and agreeing to an expedited procedure and sought to avoid a term of imprisonment or a probation order requiring him to reside in Poland as he wanted to return to his wife and children in the UK. His consistent evidence to that effect has not been challenged at either hearing or in the further information.
31. The appellant states that he mentioned an address in the UK. I can reach no conclusion on that but if he did he failed to record it in the protocol that governed the trial. I infer that the address on record was the address identified in the course of the investigation of the 2005 offences. It has not been suggested that in 2010 he gave the Polish court a false address in Poland to prevent the order being enforced. It is a little surprising that the Polish court made no enquiries of its own as to where he was living given that he had spent nearly three months in prison, and up to five years previously in the UK and was planning to return there.
32. Equally it does not appear that any time to pay the compensation was asked for by the appellant or afforded as the order was promptly enforceable although it must have been unlikely that he had the means to pay immediately or had during his return to Poland and remand in custody retained his employment with which to pay in instalments.
33. On 18 April after email contact the customer services manager at District Court Poznan told the appellant:

"Unfortunately the email address you have been using had not been provided to the court earlier in writing for the purpose of being attached to the protocol or the official note prepared by Customer Services as the address on which you could receive the unclassified information from the ongoing proceedings".

34. On 7.30 19 April 2016 he inquired:

"I am writing to ask what I have to do to register my electronic address for the purpose of finding out about my court cases."

At 7.48 the same day information at Poznan District Court replied

"It is necessary to come in person to the court to verify your identity"

35. It would be surprising if a Polish national subject to criminal proceedings could not register for information about the court's decisions in his case from abroad. This exchange gives some support for his contention before the DJ that it is difficult to find out information from the court in Poland after the hearing.
36. In his witness statement for this appeal dated 8 January 2016, the appellant states that he has instructed a lawyer to apply for suspension of the sentence and that there will be a hearing on this in February 2016. In his supplementary statement he says that he is willing to pay the fine.
37. On 11 May 2016 the appellant asked for the account number to pay the fine and court fees.
38. On 15 May 2016 he wrote sending the receipt for a partial fine payment adding 'could you please attach it to the case file for tomorrow's hearing?' This might be a reference to a hearing in Poland for which he had now instructed a lawyer.
39. If he had applied for time to pay the compensation, when he first returned to England, it seems to me that he would have had a good case for doing so. As he told the DJ his life on return to England was a chaotic one.
40. On 1 July 2011 there was an argument with his wife at the matrimonial home that resulted in him being arrested for common assault and battery. On 30 August 2011 he pleaded guilty to these offences and was given a 16 week sentence of imprisonment suspended for two years with a supervision order, a 25 day activity requirement and a non-harassment order. These measures seem to have been effective in deterring further offending although he became homeless following this breakup.
41. His GP notes indicate that he had cardiac disease problems but also that around October 2011 he was suffering from stress. He presented with paranoid ideas and was unable to engage with local mental health services at the end of that year. He was detained in mental hospital from 21 February to 1 March 2012. He works part time because of his poor physical and mental health. He has been with his present partner since July 2014 when she came to the UK to work. She is concerned about the anxiety that the second request for extradition has generated since his arrest on 29 October 2015.
42. He clearly has a poor state of physical and psychiatric health, although abuse of alcohol to which he has resorted over the past few months is self-inflicted damage. Ms Iveson for the respondent makes the point that a period of imprisonment in Poland might deprive him of alcohol. I have no idea if this is the case.
43. Although his marriage has broken down and his wife has a new partner, there are two children of the marriage with whom he has at least some contact. In the absence of a statement from his estranged wife or any independent information from the school it is not possible to assess the strength of that relationship.
44. Although it was not a matter mentioned to the DJ, possibly because no question as to his present domestic circumstances was asked of him, I accept that he lives with his present partner and their modest financial circumstances require a pooling of their incomes to pay for their rent and living expenses. It would appear that his partner is a stabilising factor for his anxiety, mental health, and social discipline. There is some force in his contention that at the age of 55, the breakdown of a further relationship through service of a sentence in Poland would be particularly stressful for him. His partner is also concerned as to the impact on her of losing a job, home and a relationship if the appellant is returned to Poland.

Conclusions

45. In an ordinary case, the mere presence in the UK of an estranged wife, children and partner, and the consequent hardship afforded to any or all of them by removal of the RP to Poland would weigh little in the overall balance given the strength of the public interest in enforcing extradition arrangements with Poland to ensure that he should serve the sentence passed on him by the court following his previous extradition to face trial. I have considered each of the factors that may be in favour of return identified in the leading case of Celinksi [2015] EWHC 1274 (Admin) as did the DJ. I am conscious that this court should not permit the Article 8 balance to be used as a surrogate mitigation exercise or undermine the reasons why the Polish criminal justice system imposes suspended sentences.
46. However, I am satisfied that this is not an ordinary case, and quite exceptionally, I have concluded that the balance of factors outweighs the public interest in extradition in this case.
47. First, the terms of the June 2015 EAW was unhelpful and misleading in identifying what the court's sentence was in 2010 and why the sentence was made immediate in 2013. The supplementary information provided in January 2015 does not explain how much compensation was owing, whether it was possible to pay from abroad after sentence or comment on the appellant's evidence that an application had been made to re-suspend the sentence, and he had paid some and had tried to pay more money in May 2016. It is for the requesting state to prove the case to a high standard either in the EAW or in supplementary information for the extradition hearing and the difficulties in finding out what happened have caused a significant period of delay to a vulnerable 55 year old and contributed to the DJ being misled as to the relevant circumstances.
48. Second, although I reach no conclusions on every assertion in the appellant's untested witness statement, I consider it probable that he did explain to the court in 2010 that he intended to return to the UK to be with his family and that was the reason why a probation order with a requirement to contact the probation officer locally was not made. If so, I consider it puzzling why the court of its own initiative did not ensure that the protocol was amended to include an effective address for service in the UK and that a man who had just spent nearly three months in prison was not given time to pay the compensation order when he had re-established himself in employment. The appellant seems to have represented himself in court on this occasion and just as in the UK the requirements of justice raise some obligation on a judge to address obvious issues, even if the responsibility for providing a current address that is effective rests with the appellant.
49. Third, although he cannot raise oppression under s.14, the appellant has had the issue of extradition for his offending in 2005 hanging over his head for some seven years. I am puzzled as to why it took two years to issue the EAW to enforce the sentence in the UK if the court knew that he was returning there. He is not a well man. He is aged 55. Service of a prison sentence plainly has greater adverse effects on his health than for others without his condition.
50. Fourth, it is possible that for some reason he did not realise that he had a compensation order to pay as well as court costs until the EAW was enforced. Equally I am unsure what did alert him to need to pay money when he tried to do so, as there is nothing I can find in the translation of the EAW that informed him of this. His subsequent attempts to pay it thereafter were both late and sporadic but the email communications suggest that there are some real difficulties communicating with the court from abroad. If he had applied for an instalments order and kept the court up to date with his personal circumstances he would have had a reasonable case for time to pay.
51. Fifth, the public interest in enforcing a compensation order of some £600 seems less weighty than securing obedience with other kinds of penal order. I disregard the imbalance of the costs of this hearing with the outstanding sum. This cannot be a decisive factor but is one that can be weighed in the balance. Even if Mr Justice Mitting's decision in the case of Pinto [2014] EWHC 1243 (Admin) where compensation remained outstanding cannot be followed on the issue of fugitive offending in the light of the clarification of the law in Wiesnieski, as an exercise of balance of factors, it still informs my consideration that it appears excessive to return a man to pay a small amount of compensation that he could not pay at the time, can only pay subsequently with the employment he has found in the UK, and that he was unable to make part payments towards paying off during the past year when he became aware that the lack of payment threatened his home, employment, personal relationship, health and further contract with his children. Whatever his past difficulties he appears to have achieved stability with his present partner and both are fearful as to the consequences of a second return to prison in Poland
52. Balancing the strength of the public interest, the seriousness of the offence, the custodial term already served, the personal circumstances of the offending and the impact on his health and other aspects of his private life I conclude that exceptionally extradition would be disproportionate and accordingly this appeal is allowed.
53. If the appellant is genuine about his intention to pay the balance of the compensation he should do so with the assistance of a Polish lawyer as that will otherwise be an obstacle to his visiting his country of nationality. He should further take care to address his alcohol use as if that leads him to lose employment, or engender psychotic disorder and criminal offending he may well face expulsion from the United Kingdom to Poland in any event.