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
		10/02/2017

Mr Justice Cranston:

Introduction

1. These are appeals with permission of Ouseley J against two orders of District Judge Goldspring for the appellant's extradition to Poland. The orders were made on 6 November 2015 and 9 November 2016. The order on 6 November 2015 was in relation to four European Arrest Warrants ("EAWs"); that of 9 November 2016 was in relation to two EAWs.
2. The appellant advances a single ground of appeal: the District Judge erred in finding that extradition in respect of each warrant was not barred under section 14 of the Extradition Act 2003 ("the 2003 Act") by reason of the passage of time making it oppressive. The appeals raise the issue of whether findings of oppression as a result of delay must be differentiated as regards each offence in a warrant or warrants.

The EAWs

3. There were six EAWs in all although one (called EAW 2 below) has since been withdrawn by order of this court dated 3 November 2016. Those warrants are as follows:
4. EAW 1 was issued by the Circuit Court of Zielona Gora on 22 September 2011 and certified on 25 November 2011. It is an accusation warrant based on a domestic warrant issued on 21 July 2010. The appellant's address is given at a number in Woodford Road, Watford. The appellant is wanted for trial for one offence of fraud in relation to the online sale of a tractor worth 4,000 zlotys (approximately £760) on 4 February 2009. The maximum sentence for the offence is 8 years' imprisonment.
5. EAW 2 was issued by the Regional Court in Szczecin on 8 March 2012 and certified on 27 November 2012. It was a conviction warrant in respect of a sentence of 10 months' imprisonment imposed on 11 August 2009 for one offence of fraud. A Polish address is given for the appellant. Box F of the EAW states that the sentence was initially suspended but the appellant did not comply with the condition that he repay the damage caused and comply with the requirements imposed by the probation officer. As a result his sentence was activated on an unspecified date.
6. EAW 3 was issued by the Regional Court in Szczecin on 18 June 2013 and certified on 26 July 2013. It is a conviction warrant in respect of one offence of attempted commercial burglary committed on 17 August 2008. The appellant was convicted of this offence in his presence on 5 March 2009 and a one year sentence was imposed. Box F of the EAW states that he was sentenced to a suspended sentence but this was activated on 3 February 2010 because he had failed to comply with the probation requirements. Thereafter the appellant failed to surrender to prison when required to do so. In the EAW the Polish authorities provide a possible address for the appellant, the same address as in EAW 1.
7. EAW 4 was issued by the Regional Court in Kielce on 23 October 2013 and certified on 29 April 2014. It is an accusation warrant in respect of nine offences of fraud committed in February and May 2009. The first allegation in the EAW is that the appellant obtained property worth 10,497.37 zlotys (approximately £2083) by fraud on 11 May 2009. The second allegation involves 8 individual offences of fraud committed between 5 February 2009 and 19 May 2009. It is said that the appellant misled individuals as to his intention to pay for services involving the transport of goods and caused losses amounting to 73,690.89 zlotys (approximately £14,650). The maximum sentence for the offence is 8 years' imprisonment.
8. Following the making of the first extradition order and the lodging of an appeal, the appellant was arrested on two further EAWs on 6 September 2016. As I have said the appellant's extradition was ordered pursuant to both on 9 November 2016.
9. EAW 5 was issued by the District Court in Krakow on 27 January 2015 and certified on 6 April 2016. It is an accusation warrant based on a domestic warrant issued on 17 September 2014. The appellant is sought to stand trial for an offence equivalent to fraud by false representation. It is said that he obtained 7,000 zlotys (£1380) by fraud on 23 March 2009. The maximum sentence for the offence is 8 years' imprisonment. The Watford address for the appellant is given.
10. EAW 6 was issued by the Regional Court in Szczecin on 11 July 2016 and certified on 8 August 2016. It is an accusation warrant in respect of 21 allegations of advance fee fraud in connection with the sale of agricultural machinery committed between February and June 2009. The total loss caused was 103,730 zlotys (approximately £20,000). The maximum sentence for the offence is 8 years' imprisonment.
11. The appellant was arrested on EAWs 1-4 on 4 May 2015. After his extradition was ordered on 6 November 2015, he lodged an appeal. The appeal was stayed behind a case which concerned another of the appellant's grounds of appeal until judgment on it was given by the Supreme Court. Once that occurred the stay was lifted and permission to appeal was considered and granted on 8 November 2016.
12. The appellant was arrested on EAWs 5 and 6 on 6 September 2016. After his extradition was ordered on those warrants he appealed on 9 November 2016. Permission to appeal was granted on 17 January 2017.

FIRST JUDGMENT OF THE DISTRICT JUDGE

13. In his judgment on EAWs 1-4, the District Judge referred to the legal principles relevant to a challenge pursuant to section 14 of the 2003 Act. He said:

"36. It is for the [Judicial Authority] to prove to the criminal standard that the [requested person] is a fugitive. He certainly left Poland in breach and aware of the fact but was not aware of the date fixed for any hearing to activate. I have been urged by the [Judicial Authority] to follow the authority in Salbut v. Poland, a case that I decided and was upheld. I agree that he was in breach of his obligations and is a fugitive under the same test as in Salbut and as a fugitive he cannot rely on this bar and I therefore reject it in relation to all EAWs."

14. The District Judge also considered the application of Article 8 of the European Convention on Human Rights ("ECHR" or "the Convention"). He said that "[t]here is no delay in extradition terms." He then said this about the evidence he had heard:

"44. The RP is not a sole or primary carer.

…

46. The [appellant's] Article 8 rights and those of his partner and clearly engaged. They are in a steady relationship and I have no doubt separation will cause them both emotional hardship and her some but limited financial hardship. She works and will be able to support herself in his absence. There is no evidence that he cares for her as she is fit and well. There may well be issues with visitation rights but they are a matter for the Polish courts/ authorities to administer, significantly there are no children."

SECOND JUDGMENT OF THE DISTRICT JUDGE

15. In his judgment in respect of EAWs 5 and 6, the District Judge firstly corrected what he had said in his previous judgment: the appellant was, in fact, of good character in the UK. He then recorded the appellant's evidence that he was only 18 or 19 at the time of the offending; that he came to the UK in summer 2009; and that he registered with the Home Office under the Accession State Worker Registration Scheme in 2010.
16. The District Judge recalled that the Judicial Authority did not ask that he make a finding that the appellant was a fugitive as regards the offending in these warrants, and the District Judge agreed that he was not. The District Judge reminded himself of the principles relevant to challenges under section 14 of the 2003 Act. He accepted that the evidence of the appellant and his partner given about their private and family life was truthful.
17. Having considered the matter, the District Judge said that he was not satisfied that extradition would be oppressive. His reasoning was as follows:

"70. The IJA have not provided an explanation as to the delay and that is exacerbated by the fact that they were aware of the situation from the first set of proceedings. The lack of an explanation does not necessarily mean it is culpable but in this case the combined fact of the lack of an explanation and the existence of the previous proceedings it seems to me to be capable of being culpable.

71. The delay is not the longest by extradition standards but the length is a factor that is capable of supporting a submission that it amounts to oppression, providing of course that there is a causal link between delay and oppression.

72. No false sense of security has been engendered, nor have his circumstances changed significantly. He has now met a partner and settled down but they do not have children together, otherwise there are no significant changes to his life.

73. He is not a fugitive in these proceedings BUT he is in relation to the first set of proceedings, he can of course rely on the bar, but this court cannot ignore his fugitive status in relation to the previous matters when considering the circumstances in which he left Poland, the assessment of oppression requires the court to look at the overall picture.

74. There will be an effect on his fiancée and mother but nothing before me justifies an assertion that hardship will be greater than that inevitably inherent in the act of extradition when facing what is likely to be long criminal trial process in another country…

75. The allegations when taken together are serious.

76. Having considered the matter I conclude that surrender is NOT oppressive notwithstanding those matters asserted in favour of such a finding.

77. The RP does not suggest that surrender would be unjust and that must be right.

78. I therefore reject the challenge."

18. The District Judge turned to Article 8. Amongst other things he said:

"85. The Article 8 ECHR rights of the [appellant], his fiancée, his mother and his brother are engaged. His partner will no doubt suffer some emotional hardship if he is surrendered, and potentially some financial hardship. However she is working and appears to be financially independent and her historic health problems appear to be behind her now. The couple do [not] have any children, although I note he has a child in Poland, however the evidence does not suggest that the child could be described as dependent.

86. There is delay in extradition terms. There is no further information setting the reasons for the delay. That is brought even more sharply into focus because in respect of EAW 1 the domestic warrant was issued in September 2014, the first set of proceedings had been heard and yet the EAW here was not issued until January 2016. The delay is unexplained. That absence of an explanation and given the chronology it is culpable. That delay therefore can and does militate the public interest."

19. The District Judge added that the offences were not on their face very serious but they had to be considered with reference to the appellant's known offending history, taken from the previous request.

LEGAL FRAMEWORK

20. Before considering the particular issue which arises in this case, it is important to recall the leading and binding authorities. These firmly establish, putting it broadly, that under section 14 of the 2003 Act only in exceptional cases can the passage of time be invoked as a bar to extradition. Decisions suggesting otherwise, if any, must be eschewed.
21. Section 14 provides:

"14. Passage of time

A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –

(a) committed the extradition offence (where he is accused of its commission), or

(b) became unlawfully at large (where he is alleged to have been convicted of it)."

22. Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779 is a leading authority in which section 8(3) of the Fugitive Offenders Act 1967 was considered. That section is materially indistinguishable from section 14. Lord Diplock (with whom Lords Russell, Edmund-Davies and Scarman agreed) said (at 782-3):

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

23. As regards other delay, caused not by the requested person, Lord Diplock said (Lords Russell and Scarman agreed, Lord Edmund-Davies dissented on this point) (at 783):

"As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) is based upon the 'passage of time' under paragraph (b) and not on absence of good faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise. Your Lordships have no occasion to do so in the instant case."

24. The equivalent provision to section 14 for Part 2 cases under the 2003 Act, section 82, was considered by the House of Lords in another leading authority Gomes v. Government of the Republic of Trinidad and Tobago; Goodyer v. Government of the Republic of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038. Lord Brown (with whom the other members of the judicial committee agreed) referred to the passages from Lord Diplock's speech in Kakis, quoted above, as "Diplock para 1" and "Diplock para 2".
25. As to Diplock para 1, Lord Brown said that Kakis had emphasis placed on the principle that an accused person cannot rely on delay for which he himself is responsible. Relevant delay, he said, is the delay in the overall process of bringing the person to justice: [21].
26. Lord Brown turned to delay on the part of the authorities. He referred to a passage of Laws LJ in La Torre v. Italy [2007] EWHC 1370 (Admin), where Laws LJ had said that unexplained delay did not necessarily demonstrate that the requesting state was at fault. Laws LJ continued:

"[37] …Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case… And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part… An overall judgment on the merits is required, unshackled by rules with too sharp edges."

27. Lord Brown effectively disapproved this passage, commenting that in effect Laws LJ was adopting the minority view in Kakis and that his observations could not dilute the effect of Diplock para 1. Extradition required hard edged rules. Where the requested person had fled the jurisdiction it did not lie in his mouth to argue that the requesting state should share the blame: [26].

"[26]…Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not "of his own choice and making"."

Since flight was an almost automatic bar to reliance on delay it required proof to the criminal standard: [27].

28. In respect of the relevance of culpable delay on the part of the requesting state Lord Brown said:

"[27]… [I]t 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. It is one thing to say… that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame."

29. In relation to the meaning of oppression Lord Brown said this about the bearing which the gravity of offending had and of how oppression will be hard to establish:

"[31] …And, so far as concerns oppression, it is worth noting too Lord Diplock's statement in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779 , 784 that: "the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive …" That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough."

30. The hard-edged nature of the issue in Diplock para 1 is illustrated by two cases in the Divisional Courts last year. In Wisniewski v. Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750, the sentences imposed on the requested persons had originally been suspended. There was supervision by the probation service in Poland. The sentences were activated after the appellants had left Poland. It was submitted that it would be unjust or oppressive to extradite them by reason of the passage of time after they were alleged to have become unlawfully at large. Lloyd Jones LJ (with whom Holroyde J agreed) held:

"[60]… [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. The activation of the sentence is the risk to which the person has knowingly exposed himself."

31. In the second case, McGurk v. Provincial High Court of Alicante, Spain [2016] EWHC 536 (Admin), the accusation EAW contained an allegation of rape dating back to 1999. In a judgment with which Burnett LJ agreed, I said:

"[29] That leaves oppression. In making an overall judgment as regards oppression, one aspect is the gravity of the offending: Mariotti v. Italy [2005] EWHC 2745 (Admin) , [26]; Pesut v. Republic of Croatia [2015] EWHC 46 (Admin) , [40]. Here the alleged rape, with its associated violence, is especially serious. Moreover, there must be a causal link between delay and oppression, and the burden of proof is upon a requested person on the balance of probabilities to establish the oppressive effect of time passing: Brzeski v. Poland [2012] EWHC 1138 (Admin), [22]. Although in this case the District Judge considered that the matter was finely balanced, he concluded that the passage of time had not had the required causative effect. In the passages quoted earlier in the judgment, he noted that the appellant was living very much as he had done during the years since 1999. In my view his conclusion on oppression is not flawed."

32. Drawing the threads together, the law regarding the bar of oppression through passage of time is as follows:

i) Oppression is not easily satisfied; hardship is not enough.

ii) The onus is on the requested person to satisfy the court that it would be oppressive to extradite him by reason of the passage of time.

iii) The requested person must establish a causal link between the passage of time and its oppressive effects through the change in circumstances.

iv) The gravity of the offence is relevant to whether changes in the circumstances of the requested person have occurred which would render his return to stand trial oppressive.

v) If the requested person is a fugitive he cannot take advantage of oppression, save in the most exceptional circumstances.

vi) The requesting authority must establish that the requested person is a fugitive to the criminal standard.

vii) Delay brought about other than by the requested person is not generally relevant since the focus is the effects of events which would not have happened, for example a false sense of security.

viii) It is only in borderline cases, where the accused himself is not to blame, that culpable delay by the requesting state may tip the balance against extradition.

33. There are a number of recent cases where the issue of oppression through passage of time has arisen in a context where extradition has been sought for more than one offence, or pursuant to more than one warrant. In the order in which the cases are reported these are as follows:

Przybysz v. Regional Court in Szczecin, Poland [2014] EWHC 1240 (Admin): the appellant's extradition was sought pursuant to a single EAW containing two alleged offences committed in 1998 and 1999. With respect to the first offence, one of robbery, the District Judge found no culpable delay on the part of the Polish authorities; with respect of the second, a non-domestic burglary, he was more concerned but still found no culpable delay. He held that extradition was not oppressive. On appeal, Kenneth Parker J found that the two offences could be differentiated, and that the culpable delay in prosecuting the burglary offence, coupled with its less serious nature, rendered extradition for that offence disproportionate: [16]. In doing so he said that every case turns on its own facts: [15].

Nowak v. Circuit Law Court in Swidnica, Poland [2014] EWHC 3466 (Admin): Sir Stephen Silber upheld an extradition order made in respect of an offence of supplying drugs committed in 2014, but allowed the appeal in respect of a separate offence of possession of 1.2 grams of marijuana in 2002. He adopted that differentiated approach with the acceptance of the Judicial Authority: [25].

Korzonek v. District Court in Praga, Warsaw, Poland [2014] EWHC 4149: there were three EAWs, and Blake J allowed the appeal and ordered his discharge in relation to a 12-year old offence on the second warrant of supplying a small quantity of heroin. But that was under Article 8 ECHR, not section 14. However, Blake J said, in an obiter comment, that having considered Przybysz:

"[9]… I recognise that oppression by reason of delay under section 14, as well as statutory proportionality… would require individual assessment of each offence. The position is perhaps a little more complicated in the case of Article 8 where the overall question is whether the term is a disproportionate interference with family life… taken as a whole…"

Rutowski v. Regional Court of Bialystok, Poland [2015] EWHC 1733 (Admin): the EAW was for the appellant to serve two sentences. The first was for a conviction on 14 February 2007 for an offence of drink-driving whilst disqualified and for which he received 18 months. The second conviction was on 26 March 2008, for which he was sentenced to 2 years' imprisonment for two offences, one a sexual assault by force on a female aged 16, the other for driving with excess alcohol and while disqualified about 6 months after the previous sentence had been imposed. The appellant accepted that he was a fugitive from 2010, certainly so far as the second series of convictions were concerned. Sir Stephen Silber dismissed the appeals under Article 8 ECHR. After referring to his decision in Nowak he said:

"It is necessary to stress that I have reached that decision on the basis of an agreement by the counsel for the judicial authority. Nowak should not be regarded as authority for the proposition that each sentence should be looked at separately and indeed there are no end of authorities in which the cumulative effect of the sentences are looked at rather than considering each sentence individually."

Kalemba v. Regional Court in Gdansk, Poland [2015] EWHC 1880 (Admin): the appellant's extradition was ordered under two EAWs, the first a conviction warrant relating to an offence of fraud where he had a remaining sentence of 14 months to serve, the second, an accusation warrant under which he was sought to stand trial for theft or fraud, alleging that he had misappropriated a car by omitting to make the payments under a hire purchase agreement.

The appeal related to the second warrant. It was said that the offending was relatively minor, the allegation was eight years old, he had lived a law-abiding life since 2007, and he had responsibility for six young children. I dismissed the appeal under both section 14 and article 8 ECHR. In my view it was relevant to the proportionality of the extradition request under the accusation warrant that extradition would inevitably take place, following an extradition order in connection with a conviction warrant, which had not been appealed.

"10 However, it seems to me that given that the appellant is now to be extradited under the conviction warrant the balance in relation to Article 8 changes, as does consideration of oppression in section 14. The reality is the impact of extradition under this second warrant is much diminished since the appellant will be extradited to Poland to serve a sentence of imprisonment of 1 year and 2 months' imprisonment in the near future under the first warrant. If there were any doubts about how the balance came out prior to the decision refusing permission to appeal on the first warrant, they now fall away. It is clear to me that applying the analysis required by Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), Article 8 does not operate as a bar to the appellant's extradition. Nor can I conclude that it would be oppressive to extradite him by reason of the passage of time. Given the fact of the appellant's extradition under the first warrant there is no need to go into the detail."

Zakrzewski v. Regional Court in Warsaw, Poland [2015] EWHC 3393 (Admin): the appellant appealed two orders for extradition, the first on a conviction warrant and the second on an accusation warrant. The argument with both was that it would be disproportionate to extradite given the impact on private and family life. Irwin J approved Kalemba. When dealing with a challenge under Article 8 of the Convention, in circumstances where extradition has already been ordered in respect of another warrant, he held, the court must take into account the existence and contents of the other warrant and the reality of the appellant's situation when deciding whether extradition will be proportionate: [23]-[24]. Taking all matters into account with both warrants, Irwin J dismissed the appeals.

34. None of these cases considered the implications, if any, of the Extradition Act 2003 (Multiple Offences) Order 2003, SI 2003 No 3150 ("the Multiple Offences Order"). As its Explanatory Note states, it provides for the 2003 Act to be modified in cases where an EAW is issued in respect of more than one offence or where a request for extradition is made in respect of more than one offence. In particular, this is to allow for the partial execution of the EAW or the request for extradition in cases where the judge and or the Secretary of State must consider more than one offence for which extradition is sought. Paragraph 1 of the Order provides:

"1. General modification

(1) Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences).

(2) Sub-paragraph (1) does not apply to any reference to an offence –

(a) in a modification made by this Schedule; or

(b) in a provision of the Act which is relevant to such a modification."

35. With respect to the bars to extradition in section 11(1) of the 2003 Act, including section 14, paragraph 3 provides: 

"3. Bars to extradition

(1) Section 11 is modified as follows.

(2) For subsection (3) substitute –

"(3) If the judge decides any of the questions in subsection (1) in the affirmative in relation to an offence, he must order the person's discharge in relation to that offence only.""

36. In my view, the effect of the Multiple Offences Order is that in principle individual assessment of each offence is needed in considering under section 14 of the 2003 Act oppression by reason of the passage of time. Depending on the circumstances a requested person could be a fugitive in relation to one set of proceedings but not another. Further, a person's knowledge may differ with his offences. That could bear on his entitlement to rely on the passage of time as a bar to extradition in respect of one set of proceedings but not another. The passage of time may vary with different offences on a warrant or on the various warrants a requested person faces. That may be because the relevant period of time for the purposes of section 14 varies according to whether he stands accused or convicted, as well as according to the dates of individual offences and convictions. Finally, the offences may be widely different in their gravity.
37. In practice, however, it is for a requested person to establish oppression. That is not an easy task. Delay on the part of the authorities will generally play no part in the calculation, certainly if the requested person is also to blame for the delay. The focus must be on the oppressive effects of the passage of time of extraditing a person. If it is not oppressive to extradite a person for an offence or offences, the impact of extraditing him for other offending or convictions is likely to be diminished, notwithstanding what would otherwise have been the effects of the passage of time: Kalemba; Zakrzewski. In summary, individually assessing each offence for whether extradition is oppressive by reason of the passage of time does not mean that the section 14 bar to extradition for each offence is to be considered in isolation. Thus I would add to the considerations in paragraph [32] above:

ix) If a requested person's extradition is ordered for one or more offences, any oppressive effects of extradition in relation to further offending are likely to be much diminished.

The appellant's submissions

38. For the appellant Mr Grandison submitted that in relation to the first judgment, the District Judge was wrong in finding that he was fugitive and was therefore not entitled to rely on section 14 in respect of any of the four EAWs. A finding that the appellant was a fugitive in relation to one EAW did not render him a fugitive in relation to all four warrants. What was required was a separate finding for each offence that he was a fugitive: Salbut v. Circuit Court Gliwice [2014] EWHC 4275 (Admin), [67] per Ouseley J. The District Judge's error was compounded because in the second judgment he relied on his finding that the appellant was a fugitive in the first judgment to inform his decision.
39. Invoking Kozenek and the Multiple Offences Order, Mr Grandison then submitted that there was a need to consider each offence separately. The Order would be rendered otiose were it possible for the court to take a global view of oppression rather than asking whether it would be oppressive to extradite a requested person in relation to each individual offence. In this case the District Judge considered the question of oppression within the context of both sets of proceedings and on the basis of a mistake that he had made in his first judgment about the appellant being a fugitive.
40. Had the District Judge correctly assessed the issue of oppression, Mr Grandison continued, he would have had to consider, in relation to EAWs 5 and 6, the delay caused by the authorities. In fact, he stated that the delay in seeking the appellant's extradition was "capable of being culpable" and later, when considering Article 8, that the Judicial Authority was "culpable" for the delay. Had he not erred in transposing the fugitive finding across EAWs 1 to 4, he may have found that the Judicial Authority had been culpable for the delay in those proceedings as well.
41. Moreover, submitted Mr Grandison, having found that the appellant was a fugitive the District Judge did not consider the section 14 bar with regard to EAWs 1 to 4. Mr Grandison submitted that there was culpable delay with regards to EAWs 1 and 4 since the appellant registered under the Accession State Worker Registration Scheme on 9 November 2010 and a Watford address was known to the Polish authorities. Notwithstanding this, he was not arrested until 3 May 2015 and EAW 6 was not even issued until 2016.
42. Finally, Mr Grandison pointed to the changes in the appellant's life over time. The offending contained in the EAWs occurred whilst the appellant was twenty years' old or younger. He subsequently removed himself from the environment in which this offending took place. He was of good character in the UK and had employment where he was described as hardworking, polite and trustworthy. Whilst certain offences for which the appellant's extradition had been ordered could not be classified as trivial, they were not of the most serious nature.

Analysis

43. The District Judge was obliged to make separate findings as to whether the appellant was a fugitive in relation to each of the proceedings in EAWs 1 to 4. A finding that a requested person is a fugitive in one set of proceedings cannot be transferred to another set of proceedings. Separate findings ought to be made.
44. However, I accept Ms Farrant's submission that, in respect of the District Judge's first judgment, he was entitled to find that the appellant was a fugitive as regards EAWs 2 and 3. With both EAWs 2 and 3 the appellant was made subject to a suspended sentence of imprisonment. The District Judge found that the appellant left Poland "in breach and aware of that fact but was not aware of the date fixed for any hearing to activate". In the light of the decision in Wisniewski v. Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750, albeit that it came after his judgment, that was a finding which the District Judge was justified in making. Thus in relation to EAW 3 (EAW 2 having been withdrawn) the District Judge was right to find that the appellant was not entitled to rely on the passage of time since he became unlawfully at large on 3 February 2010.
45. That reasoning about the appellant's fugitive status in respect of EAW 3 cannot be extended to EAWs 1 and 4, and he was not disqualified from raising the passage of time bar in respect of those proceedings. Considering the issue of oppression afresh in relation to those EAWs, I agree with Ms Farrant that extradition would not give rise to oppression by reason of the passage of time after the commission of the offences in EAWs 1 and 4 in February 2009 and May 2009 respectively. The findings of the District Judge under the separate head of Article 8 reveal no oppressive circumstances, apart from the inevitable hardship arising from extradition for him and his partner.
46. The offending in both EAWs is serious, and the public interest in extradition is heightened as a result of the pattern of fraudulent offending of which these offences form part. The offence in EAW 1 is said to involve the loss to an individual of approximately £760 through fraud, almost contemporaneous with the nine allegations of fraud set out in EAW 4. The latter are said to have been committed over a period of several months in the course of the appellant's business and involve a total loss of over £16,000. The seriousness of the fraudulent conduct is, as Ms Farrant rightly submitted, heightened by virtue of the appellant's conviction and sentence to 10 months' imprisonment in March 2009 for other fraud offending.
47. Against this background there is no possibility of any culpable delay on the part of the Polish Judicial Authorities in seeking extradition under EAW 1 or EAW 4 tipping the balance against extradition. In fact I am not persuaded that there is culpable delay as regards these EAWs. There is an address in Watford for EAW 1, but the evidence is that that address held good for 2009/2010 only. The appellant registered under the Accession State Worker Registration Scheme on 9 November 2010 but the appellant failed to make the case that this somehow meant the authorities were in a better position to find him.
48. In sum, had the District Judge considered the issue of oppression in relation to EAWs 1 and 4 in my judgment he would have reached the same conclusion he did that extradition did not give rise to oppression through passage of time. The appeal in relation to the first extradition order must be dismissed.
49. In my view the same result follows in the appeal from the second judgment of the District Judge. The offending alleged in EAW 5 and EAW 6 forms part of a pattern of fraud in the first half of 2009. The EAWs allege significant fraud, resulting together in losses in excess of £20,000. The District Judge was entitled to find that the offences were serious. The District Judge was also entitled to find that the effect of extradition on the appellant and his family would not exceed the hardship inevitably inherent in extradition. In his second judgment the District Judge spelt this out: the appellant and his partner have no children and his partner is in employment. Further, his circumstances had not changed significantly since he moved to the UK, and no false sense of security had been engendered due to the passage of time.
50. In considering oppression, the District Judge was in my view correct to take into account the fact that extradition had already been ordered pursuant to four earlier EAWs. He said that the appellant's leaving Poland to avoid serving a custodial sentence was a relevant factor in assessing the extent of any false sense of security engendered by the delay. But in my view it goes further than that, since any impact of extradition on EAWs 5 and 6 is lessened by the existence of the earlier order for extradition under EAWs 1, 3 and 4. The existence of other convictions and charges was relevant to the issue of oppression in relation to EAWs 5 and 6, as was the appellant's conduct in respect of other court proceedings in Poland.
51. The reality is that the offending in all six warrants took place at a similar time and can properly be described as a pattern of serious, regular fraudulent offending as a result of which substantial losses were caused. As Ms Farrant also noted, a number of the offences in EAWs 4, 5 and 6, if proved, were committed in breach of a suspended sentence imposed in March 2009 in respect of the offending in EAW 3. In these circumstances, it would have been artificial for the District Judge to have ignored the existence of other warrants when considering the issue of oppression. This background also puts paid to the suggestion that culpable delay by the authorities makes extradition under EAWs 5 and 6 oppressive.
52. As with his first judgment, the District Judge was correct to find that extradition was not barred under section 14 by reason of oppression through the passage of time.

Conclusion

53. For the reasons I have given I dismiss both appeals.