Case No: CO/4292/2016
Neutral Citation Number: [2017] EWHC 322 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/02/2017

Before :

THE HONOURABLE MR JUSTICE BLAKE

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Between:

	GRZEGORZ PIOTR ZAPALA	Appellant	
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	THE CIRCUIT COURT, WARSAW, POLAND	Respondent	

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Gemma Lindfield (instructed by CPS Extradition Unit) for the Appellant
Saoirse Townshend (instructed by Kaim Todner Solicitors Ltd) for the Respondent

Hearing dates: 15 February, 2017

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Judgment
The Honourable Mr Justice Blake: 
1.	On 18 August 2016 District Judge Zani sitting at the City of Westminster Magistrates Court (CWMC) ordered this appellant’s extradition to Poland on an European Arrest Warrant (EAW) to serve a one year sentence for an offence of driving while disqualified that was committed in December 2006. He had admitted the offence during a police investigation but was absent from the sentencing hearing in August 2007.
2.	The appellant was unrepresented at the hearing before the District Judge that began on 12 July and was adjourned to 4 August 2016 for further inquiries. He gave evidence on his own behalf and told the judge that he came to the United Kingdom in June 2007 after proceedings for this offence were pending and he had been told to await a summons. He was therefore a fugitive within the meaning of the term given in Gomes v Government of Trinidad [2009] UKHL 21; [2009] 1 WLR 1038 and Wisniewski v Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750.
3.	He has committed no offences in the UK although had a bad record of offending in Poland before 2008 including previous convictions for excess alcohol and driving while disqualified.  He has a stable relationship with a partner here and a child born in 2011. He is the principal breadwinner for the family.
4.	The judge conducted an Article 8 ECHR balance in accordance with the guidance given in Celinksi [2015] EWHC 1274 [2016] 1 WLR 551, DC and held that the public interest in extradition under the EAW outweighed the hardship caused to the appellant’s partner and child.
5.	There was, however, one unusual feature of this case relevant to the assessment of the Article 8 balance that led Collins J to grant permission to appeal against this decision. It seems that in 2013 the appellant and his family resident in the UK went on holiday to Croatia. They were on their way back to the UK when they were stopped at the border. The appellant was detained by the Croatian authorities and returned to Poland on 5 June 2013 on an EAW issued for an offence of theft committed in Poland on 24 December 2007 (Case K290/05) that was being prosecuted at the Sad Rejonowy District Court. He was remanded in custody and convicted of that offence in November 2013 and served his sentence until 14 April 2014 when he went back to the United Kingdom.
6.	Whilst the appellant was held on remand, the Director of the Remand Centre inquired whether he could be required to serve his sentence for the present offences (K 124/07 also before the Sad Rejonowy District Court). The District Court informed the Director that the punishment of twelve months imprisonment was not enforceable because it was not covered in the EAW that was directed to Croatia and the court had not asked for an extension of that EAW because it had no knowledge of it when it was enforced.
7.	On 18 September 2013 the Sad Rejonwy Court also informed the appellant of this and asked him whether he consented to serve the penalty in K 1245/07 as it could not be executed. The appellant did not reply and the court assumed that he refused consent and did not waive his rights under the principle of speciality.
8.	The appellant then engaged a lawyer to request that his sentence on K 290/05 be part suspended and that he be subjected to electronic monitoring.  This application was refused in February 2014. 
9.	Although some of this information was before the DJ in a letter dated 21 July 2016 sent from Poland after the first hearing, a more detailed and informative account was provided in a letter of 30 January 2017, issued in response to inquiries that Collins J requested should be made following the grant of permission to appeal. This same letter stated that as the appellant was only serving an 8 months sentence there was not enough time to apply for an extension of the EAW to case K 124/07 and the efficient conduct of all relevant procedures. I admit the letter as fresh evidence in this appeal.
10.	There was some delay in Poland until an EAW for the present offence was asked  for  and issued on 12 May 2016, when it was promptly certified and he was brought before the CWMC.
11.	Before this court, unlike the court below, the appellant has had the advantage of the services of Ms Lindfield.  On the basis of what is now known about the extradition from Croatia  she submits that the position is as follows:
i)	On his return to Poland from Croatia he was informed that he could not be dealt with for K 124/07 without his consent and that consent was withheld.
ii)	In fact, his lack of consent was not conclusive of whether the offence could be dealt with during that period of incarceration. The Polish authorities could have sought the consent of the Croatian authorities pursuant to Article 27(3)(g) and (4) of the Council Framework Agreement (2002/584/JHA). Consent was required to be given if it was an offence itself subject to surrender under the Agreement and a decision from Croatia had to be taken no later than 30 days after receipt of the request. 
iii)	The fact that the appellant was a serving a sentence until April 2014 gave sufficient opportunity for Poland to make the request and for Croatia to respond to it before he was released. The failure to make a request resulted in culpable delay on the part of the Polish state that means that this stale offence, now 10 years old, was enforced against the appellant in 2016 despite the fact that there was a reasonable opportunity for Poland to have it enforced in 2013. 
iv)	The extra three years’ delay in clearing up enforcement, and the fact that the appellant had already had his family life interfered with for one period of compulsory return to Poland from June 2013 to April 2014 operates more harshly on his family that one stay in prison.
v)	Further, as a result of what the appellant was told by the Polish authorities and the operation of Article 27 (2) of the Framework Agreement, contrary to the finding of the DJ below, he was not a fugitive when he returned to his family on release from custody in April 2014.
12.	Article 27 of the Framework Agreement is in the following terms:
‘1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to carrying out of a custodial sentence or detention with a view to the carrying out of a custodial sentence or detention order for the offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
(a) When the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) The offence is not punishable by a custodial sentence or detention order;
(c) The criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d)	 When the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e)	 When the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f)	When the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with the State’s domestic law.  The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences.  To that end, the person shall have the right to legal counsel;
(g)	Where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2).  Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision.  Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.’

13.	No UK authority on the application of Article 27 has been found by Ms Lindfield or Ms Townshend for the requesting state. This is probably because effect has been given to it by s.17 Extradition Act 2003 that provides for standing arrangements between the United Kingdom and Category One territories. It is nevertheless clear that the general principle stated in Article 27 (2) is that a surrendered person may not be prosecuted,  sentenced or otherwise deprived of his liberty for an offence committed prior to his sentence otherwise than for the one on which he was surrendered unless the exceptions paragraph 1 or 3 applied. 
14.	Paragraph 1 provides for standing arrangements consent by the surrendering state. Paragraph 3 (f) provides for specific requests for consent. Paragraph 4 deals with the procedure for seeking and obtaining such consent under Paragraph 3 (g). Paragraphs 3 (b) to (d) deal with cases where there is a non-custodial penalty when the speciality rule in not infringed. Paragraphs (e) and (f) deal with the express consent of the surrendered person.  Paragraph (a) applies where a person has had an opportunity to leave the requesting state and has not exercised that opportunity after 45 days or has returned to the territory after leaving it.  Both paragraphs refer to the voluntary acts of the appellant.  There is no reason to believe that he has returned voluntarily to Poland since he last left it in 2014. 
15.	The precise date of the appellant’s departure after release from sentence is not known. He appears not to have been asked about this at the hearing and it is not mentioned in his witness statement prepared for this appeal. The information from the requesting state is that he went abroad after completing the sentence. If he was known to be still in Poland after 45 days he could have been re-arrested on the domestic warrant for this offence without breach of the principle of specialty. The tenor of what he told the District Judge was that he was anxious to have his sentence suspended so he could return to his family, employment and settled life in the UK as soon as possible. He had a Polish lawyer acting for him in Poland and he had been informed of his rights under the speciality principle by the Polish state. Article 27 (3) (f) requires that a requested person who is considering renouncing his rights is made fully aware of the consequences and has a right to counsel for this purpose. In my judgment the overwhelming inference is that he returned to the UK promptly after his release and did not remain in Poland after 45 days.
16.	In the case of Gomes at [26] Lord Brown observed that:
	“If an accused ..deliberately flees the jurisdiction … it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this may be.. losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation….Only a deliberate decision by the requesting state communicated to the accused not to pursue a 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 the further delay were not of his own making”.
	(my emphasis)
17.	Ms Townshend points out that the Polish authorities have never told the appellant that the twelve month sentence would no longer be imposed. I agree. Despite the broad wording of Article 27 (2) it is improbable that it is an indefinite bar to enforcement as opposed to a bar during presence in the state under an enforced EAW. 
18.	What the Polish court  has done is summarised in the 30 January 2017 letter:
“By letter dated 18.09.2013, Sad Rejonowy District Court.. informed Gregorz Zapala that considering the fact that the European Arrest Warrant  was issued in another case, the penalty imposed in the case number K124/07 cannot be executed. Therefore it asked the subject if he agreed to its execution…The subject has not responded to the above letter. In my view of the above, the Court held that the subject does not agree to his surrender and does not waive the principle of speciality”.
19.	Although we do not know the precise terms of the 18 September letter and what its impact was on the appellant, it would be reasonable to suppose that he believed that his sentence for the 2006 offence could not be imposed without his consent. This was inaccurate as it could have been imposed with the consent of the Croatian state but that consent was not sought. If his lawyer had explained Article 27 (3) (a) to him the appellant would have understood that he had the right to leave Poland after release on his sentence for the 2007 offence. There is nothing to indicate that the letter explained that a fresh request would be made if he exercised his rights to return to the UK.
20.	It seems to me that in these circumstances the inference can be drawn that the representation would have engendered a sense of security that he would not have to serve the 12 month sentence, inaccurate as that representation may have been. I conclude that this is a circumstance similar to the express representations discussed by Lord Brown.  I am conscious that the DJ did not have the benefit of the argument before me, but I accept Ms Lindfield’s submission that in these special circumstances he was wrong to conclude that the appellant was a fugitive when he left Poland in 2014.
21.	This formed a significant part of the DJ’s reasoning on the Article 8 balance as Ms Townshend helpful written submissions responding to this appeal make clear. In the circumstances, I conclude that it is necessary to perform the balancing exercise once more in the light of the facts and the appellant’s status as I have found them to be.
22.	In support of extradition to Poland are:
i)	He deliberately left Poland in 2007 without providing an address where he could be communicated with despite knowing there was a prosecution likely to be forthcoming. He was a fugitive who cannot complain of the passage of time taken between 2007 and 2013 to find out where he was.
ii)	Although the offence of driving while disqualified is generally in the lower range of criminality, the offence is here aggravated by his previous offending history and it is understandable why the Polish court should seek to punish him for it with a custodial term.
iii)	There is an invariable and strong public interest in upholding the principle of return under the mutual arrangements under the Framework Agreement to which member states are party.
23.	Against extradition are:
i)	He seems to have established himself in remunerative employment in the UK, and he has changed his life by not re-offending during his residence of some 9 years here.
ii)	He has a new family including a child of tender years for whom he is the sole financial support and towards whom he is a joint carer.
iii)	The requested person is entitled to refuse consent to being dealt with on a matter not contained in an EAW and leave the country on completion of the sentence.  Article 27 (3) (f) requires the state to explain the consequences of consent and to provide legal advice for that purpose. A purposive reading of the Article suggests that the consequences should be both what happens if consent is given and refused.  There is no information that the appellant was informed what would happen in the latter case.
iv)	Although he is unable to raise a s.14 delay bar to his return in respect of the period when he was a fugitive from June 2007 to June 2013, I have reached the conclusion that he was no longer a fugitive after he was returned to Poland on the EAW issued to Croatia and it was realised that he had a sentence to serve for the present offences. The Polish authorities could and should have sought the consent of Croatia so he could have been dealt with for all outstanding matters on one occasion. I reject the proposition that there was insufficient time to have made such a request when the court became aware of the existence of the two matters. It is puzzling why the same court dealing with both cases was unaware of the outstanding domestic warrants for the two offences in the first place.
v)	The events of 2013 are likely to have left a subjective impression of a false sense of security. The family that had lived together from 2008 until the end of their Croatian holiday. There was then a forcible return to Poland and a period of 10 months detention for the appellant for an offence committed in December 2007.  It would be reasonable if they concluded that the appellant’s past offending in Poland had now been addressed and they could return to their stable law-abiding life in the UK, with the appellant in employment and as the bread winner. 
vi)	The period of delay before that expectation was disappointed was not a long one. Ms Townshend asks rhetorically what has changed by reason of the delay from September 2013?  In my judgment, the experience in 2013 gave a false sense of security that the troubled history was concluded. It is more disturbing and disruptive for a family to have to endure two periods of the appellant’s incarceration in Poland separated by two years residence than a longer single period.
vii)	In the case of CO/2139/2016 Glowinski 1 February 2016 (unreported) I considered a relevant factor against return was that the conduct of the Polish authorities in that case had led to two successive applications for an EAW, when administrative efficiency could and should resulted in a single application for two distinct offences.  The oppressive nature of a second return weighed in the Article 8 private life balance, even where the claimant was a fugitive and there were no welfare of the child considerations in play. I also concluded that the additional delay caused by the inefficiency in having two successive EAW requests for offences of considerable vintage, need to be added to the total period since the offending in the overall balance where Article 8 issues were raised. Similar considerations apply here in light of the fact that this is a second extradition for an elderly offence.
viii)	Although the appellant is not the sole carer for his child, and although his economic responsibility has ensured that family had capital savings to tide them over for a few months in the event of loss of the breadwinner, the family and the child would face undoubted hardship by a second twelve month period of absence. Apart from financial issues, the evidence given to the DJ suggests that the anxiety generated by a second loss of the emotional support of his father already has had some adverse impact on his child. The appellant’s earnings also support his ex-wife and children (10 and 20) now all living in Canada others who would also be financially adversely affected by a second period of detention in Poland.
ix)	Judges considering these cases generally assess the impact of a return to serve a short sentence abroad where the crimes are not of the gravest kind on the basis that family life in the United Kingdom will only be interrupted for the limited period of  service of the sentence. They cannot be expected to second guess what the response of the UK Home Office will be to re-admission or deportation and in any event there is a right of appeal against any exclusion decision based on public policy grounds. However, I recognise that the present time is one of political and legal uncertainty as to what the rights of EU nationals will be in 2018 and what public policy practice there might be applied to those, like the appellant, who have a number of previous convictions for offences committed prior to entry to the UK. This uncertainty as to the future is likely to cause greater anguish to the appellant’s partner and child than in the normal case and add to the financial and emotional security that they presently feel. 
24. DJ Zani is a highly experienced judge and I would entirely have agreed with his conclusions on the Article 8 balance but for the implications of the 2013 return to Poland and the missed opportunity available to the Polish court to have sorted out all outstanding matters going back to 2006 in one combined sentence. I have had the benefit of argument he did not have.  In my judgment that tips the balance against a second return and the different kinds of hardship it will cause to the partner and child. Accordingly after some anxious consideration, I have concluded that this appeal should be allowed.