QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DANIEL ZENGOTA
|- and -
|THE CIRCUIT COURT OF ZIELONA GORA, POLAND
THE REGIONAL COURT IN SZCZECIN, POLAND
THE REGIONAL COURT IN KIELCE, POLAND
THE DISTRICT COURT IN KRAKOW, POLAND
Ms Julia Farrant (instructed by Crown Prosecution Service) for the Respondents
Hearing date: 27 January 2017
Crown Copyright ©
Mr Justice Cranston:
FIRST JUDGMENT OF THE DISTRICT JUDGE
"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."
"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
"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."
"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."
"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)."
"'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."
"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."
" …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."
"…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: .
"… [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."
" …And, so far as concerns oppression, it is worth noting too Lord Diplock's statement in Kakis v. Government of the Republic of Cyprus  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."
"… [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."
" That leaves oppression. In making an overall judgment as regards oppression, one aspect is the gravity of the offending: Mariotti v. Italy  EWHC 2745 (Admin) , ; Pesut v. Republic of Croatia  EWHC 46 (Admin) , . 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  EWHC 1138 (Admin), . 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."
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.
- Przybysz v. Regional Court in Szczecin, Poland  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: . In doing so he said that every case turns on its own facts: .
- Nowak v. Circuit Law Court in Swidnica, Poland  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: .
- Korzonek v. District Court in Praga, Warsaw, Poland  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:
"… 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  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  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  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  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: -. Taking all matters into account with both warrants, Irwin J dismissed the appeals.
"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."
"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.""
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