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
		14 December 2017

Sir Wyn Williams:

Introduction

1. This is an appeal against the decision of District Judge Ikram made on 16 March 2017 whereby he directed that the Appellant should be extradited to Poland pursuant to a European Arrest Warrant ("the EAW") issued on 14 July 2016 and certified by the National Crime Agency on 1 August 2016. The EAW specifies that it relates to the judgment of the Regional Court in Bielsko-Biala made on 29 April 2014 having a file reference number IIIK116/13. Boxes C and E of the EAW show that on that date the Court imposed a cumulative sentence of 5 years and 3 months' imprisonment upon the Appellant in respect of nine offences for which he had been sentenced, on previous occasions, on an individual basis. The Court also directed that the time which the Appellant had served in custody prior to 29 April 2014 should count towards the cumulative sentence. That meant that the Appellant was required to serve 2 years in prison.
2. The offences specified in box E of the EAW occurred over a timescale beginning April 1999 and ending May 2004. The periods of time spent by the Appellant in custody, following the commission of these offences, were:

(i) 27 November 1999 to 6 January 2000,

(ii) 23 January 2002 to 12 December 2002,

(iii) 27 December 2002 to 8 December 2003, and

(iv) 8 December 2003 to 7 April 2005.

3. It is common ground that the cumulative sentence to which I have referred came about by virtue of an application made on behalf of the Appellant by his lawyer in Poland. There have been attempts, in Poland, at the behest of the Appellant, to appeal against the cumulative sentence and to postpone execution of the sentence, but these attempts have failed.
4. The EAW is not the first arrest warrant to be issued against the Appellant.  There was an earlier EAW reference XXI KOP59/09 issued by the Circuit Court in Katowice on 19 December 2009 (hereinafter referred to as "the earlier EAW") and certified by the National Crime Agency on 10 August 2012. This warrant required the surrender of the Appellant to face prosecution for an offence which in English law would be regarded as obtaining by deception; it also required his surrender to serve the balance of a 2 year sentence of imprisonment, namely 1 year 10 months and 20 days, which had been imposed for an offence of burglary The first offence in time was the offence of burglary which was committed during the night of 6/7 April 1999.
5. It is common ground that the Appellant was extradited to Poland pursuant to the earlier EAW in October 2012.  He began serving the sentence imposed for the offence of burglary but within a short period of time and long before he had completed his sentence the Appellant was released from prison. This appears to have happened shortly after the Appellant had been interviewed by a prosecutor about the alleged offence of obtaining by deception. Following his release, the Appellant came to the UK.
6. The offence of burglary specified in the earlier EAW is one of the nine offences which are specified in the EAW upon which the Appellant's extradition is now sought.

Grounds of appeal

7. In his skeleton argument Mr Henley identifies two strands upon which this appeal is constituted. He submits that the Appellant's extradition would constitute a disproportionate interference with the rights of the Appellant and his family under Article 8 of the European Convention on Human Rights. He submits, too, that the Appellant's extradition would constitute an abuse of process in this jurisdiction.
8. With respect to Mr Henley, I was left in some doubt about whether he was pursuing abuse of process as a separate and distinct ground of appeal or whether he was confining himself to the submission that the circumstances giving rise to the alleged abuse of process were important matters to be taken into account when assessing whether the rights of the Appellant and his family under Article 8 had been infringed. Given this state of affairs it is as well if I set out, immediately, my understanding of the circumstances in which abuse of process can constitute a free-standing bar to extradition.
9. The relevant principles are sufficiently explained in the decision of the Divisional Court in Camaras v Baia Mare Local Court, Romania [2016] EWHC 1766 (Admin). In 2014 Mr Camaras was the subject of EAWs which sought his extradition to Romania in respect of various offences of which he had been convicted. The EAWs in question specified four offences upon which, following a contested hearing at the Westminster Magistrates Court, DJ McPhee discharged Mr Camaras. The District Judge found that Mr Camaras had not been present at his trials in Romania, he had not deliberately absented himself from them and it had not been established that he was entitled to a re-trial in respect of the offences. Accordingly, extradition was barred pursuant to section 20 of the Extradition Act 2003 ("the Act or the "2003 Act"). In fact, by the date of the decision of the District Judge the law in Romania had changed with the consequence that Mr Camaras would have been entitled to a re-trial in respect of the four offences upon his return to Romania. Notwithstanding his discharge, the Judicial Authority did not let the matter lie. It issued another EAW ("EAW 2") which sought the return of Mr Camaras in respect of the four offences. Following a contested hearing at the Magistrates' Court, DJ Blake directed the appellant's extradition.
10. One of the points taken on appeal was that it was an abuse of process for the Judicial Authority to seek extradition pursuant to EAW 2 having failed to place all its arguments and evidence before DJ McPhee when it could and should have done so.
11. In a judgment with which McCombe LJ agreed, Ouseley J dealt with the concept of abuse of process at paragraphs 13 to 34 of his judgment. He found that abuse of process could be relied upon to defeat a request for extradition where the English court had cause to suspect that a prosecutor might be manipulating or using the procedures of the court in order to oppress or unfairly prejudice the requested person – see, in particular, paragraph 17 of the judgment. Ouseley J described this as "the residual abuse of process jurisdiction". He went on to hold that the residual jurisdiction could not be invoked to prevent the extradition of Mr Camaras because the facts before him, as summarised above, did not give rise to a suspicion that the prosecutor was or might be manipulating or using the procedures of the court in order to oppress or unfairly prejudice him.
12. At paragraph 20 Ouseley J explained that the issue confronting the court in Camaras was not whether the residual jurisdiction relating to abuse could be invoked but rather a different issue which he explained thus:-

"20. The circumstances here give rise to a different sort of issue, which in English legal parlance may be described as an abuse of process, but is not the sort of abuse of process at which the language of the cases on the residual abuse jurisdiction is directed. This case involves a breach of the rule of public policy embodied in the principle in Henderson v Henderson (1843) 3 Hare 100. This principle requires parties to litigation to bring their whole case before the court so that all aspects of it may be finally decided. They cannot, absent special circumstances, return to the court to put forward arguments or claims which they could have raised on the first occasion but did not do so, whether through negligence or accident. If that principle applied without qualification to extradition cases, this appeal would be bound to succeed.

At paragraph 27, Ouseley J continued:

"27. I am in fact satisfied that it is neither principled nor practical to apply the principle in Henderson v Henderson in a straightforward manner to extradition warrant decisions. Extradition involves the issuing of a warrant by a foreign authority which engages the UK's international obligations as well as its domestic legislation. Statutory bars have been enacted which reflect those arrangements, whether Treaty or Framework Decision. There is no scope for more than a residual jurisdiction to preclude the extradition of someone who falls outside the scope of the statutory bars. That is the residual jurisdiction envisaged in the line of cases leading to Belbin, where the contention is that the prosecutor or judicial authority has acted in bad faith, deliberately manipulating proceedings, undermining the statutory regime to the unfair prejudice of the defendant. Such a jurisdiction is consistent with those international obligations only because it is obvious that no prosecutor or issuing authority should behave in the manner described in Belbin as an abuse of the court's process; it is necessarily implicit in the arrangements, and accepted by all participants, that they would not be allowed to do so."

13. In the light of this reasoning, Ouseley J held that abuse of process could amount to a free-standing "bar" to extradition only if the English court had reason to suspect that the prosecutor might be manipulating or using the procedures of the court in order to oppress or unfairly prejudice the requested person. In all other circumstances, the factors said to be relevant to the abuse argument were to be assessed and evaluated in the context of an appropriate statutory bar under the 2003 Act. In Camaras, itself, the circumstances said to have given rise to the alleged abuse of process were assessed in the context of the bars to extradition under sections 14 and 21 of Act.
14. The approach laid down by the Divisional Court in Camaras is the approach which was adopted by DJ Ikram in the instant case. He considered the factual issues surrounding the Appellant's earlier extradition in respect of the burglary offence and his release from prison by the Respondent prior to the completion of his sentence in the context section 21 of the Act and Article 8 ECHR. He did so because, correctly in my judgment, he concluded that there was no evidence to support a conclusion that the Respondent was manipulating or using the procedures of the court in order to oppress or unfairly prejudice the Appellant. I do not understand Mr Henley to argue that such evidence exists but, if I am wrong in that understanding, I am completely satisfied that there is no evidence in this case to support the conclusion that the Respondent might be manipulating or using the procedures of the court to oppress or unfairly prejudice the Appellant.
15. In his judgment, District Judge Ikram records that Mr Henley conceded this to be the correct approach. Whether or not that is precisely what occurred below matters not since, as I have said, I am satisfied that in relation to the abuse argument the approach taken by the District Judge was correct.
16. I turn to deal with the contention that DJ Ikram was wrong to conclude that the Appellant's extradition was not barred by section 21 of the Act. Whether or not extradition is barred because it would constitute a disproportionate interference with the rights of the Appellant and his family pursuant to Article 8 ECHR is to be judged in accordance with a trilogy of cases, namely Norris v Government of United States of America (No. 2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Celinski & Others v Polish Judicial Authorities [2013] EWHC 1274 (Admin). No useful purpose would be served by citation from those authorities. The principles and guidance laid down in those cases are extremely well known to everyone concerned with this area of law. Further, it is clear from the judgment of DJ Ikram that he was purporting to follow and apply those principles since they are set out in some detail in his judgment.
17. The issue for me on appeal is whether DJ Ikram was wrong to conclude that the extradition of the Appellant was not a disproportionate interference with his Article 8 rights and those of his family. That is the central question in every appeal of this type as emerges, clearly, from Celinski. I stress that point at the outset because it is common ground in this appeal that DJ Ikram did fall into error when considering a part of the evidence relevant to the Article 8 issue. However, before considering the significance of this error on the part of the District Judge let me record some relevant but uncontroversial facts.
18. The offending for which the Appellant's return is sought began in 1999 and ended in 2004. Most of the offending occurred in 2000 and 2001. The Appellant spent time in custody as I have described in paragraph 2 above. In 2006 the Appellant left Poland and came to the United Kingdom. His motivation for so doing was in order to search for employment; however, he accepts that by coming to the UK in 2006 he was then a fugitive from justice. Until his extradition in 2012 the Appellant remained in the UK; he worked and made a reasonable living for himself. At some stage he became divorced from his wife who remained in Poland.
19. The Appellant gave some evidence before the District Judge as to the circumstances of his release from prison in Poland following his extradition in 2012. He told the District Judge that he was released by a "lady prosecutor", but he did not provide any detailed evidence as to why that course was adopted.
20. Following the Appellant's release in 2012, he came back to this country. However, within weeks, the Respondent made contact with him with a view to him returning to Poland to serve his sentence.
21. It is worth pausing at this point to observe that the Respondent has never provided an explanation of why the Appellant was released within weeks of his extradition in 2012. The District Judge inferred that the most likely explanation was that an administrative error had occurred. In my judgment, that was a conclusion which was open to him particularly given that within weeks of the Appellant's release, the Respondent was contacting him with a view to his returning to Poland to continue serving his sentence.
22. In his judgment (page 4 paragraph k), DJ Ikram records the Appellant as accepting, in cross-examination, that as of a date in 2012/2013 he was aware that he had a sentence to serve in Poland. On 20 May 2013 the Appellant requested the court in Poland to impose a cumulative judgment. In April 2014 the court acceded to that request. Thereafter, as I have said, the Appellant applied to appeal against the length of the cumulative judgment and applied to postpone execution of the judgment, but his applications have been unsuccessful.
23. In 2013 the Appellant met the woman with whom he now lives, Ms Poczontek. They have a young child (approximately 2 years old). Self-evidently, the Appellant formed the relationship with his partner at a time when he knew that it was at least possible that he would have to return to Poland to serve a sentence of imprisonment.
24. At page 8 of his judgment, the District Judge records as follows:-

"The JA say the RP was a fugitive as of 2012 when he came to the UK upon release from prison. They say that he did not notify change of address per Art 75. That is in relation to IIK118/06 which is EAW offence 8 (fraud offence). They say the RP became a fugitive at that stage. …"

Later on the same page the Judge records:-

"The JA are clear in stating that the RP was under an obligation to notify change of address in 2012 and was banned from leaving the country. I am satisfied that he signed a letter confirming the same. I find that he was then so notified of the obligation and left without notifying his new address in the UK."

25. These findings are at the heart of the conclusion reached by the District Judge that the Appellant became a fugitive from justice when he returned to the UK from Poland in late 2012.
26. Without doubt, the Judge's conclusions, as set out immediately above, were based upon an opening note which had been provided to him by Counsel for the Respondent at the beginning of the hearing. However, during the course of the proceedings below and before judgment Counsel corrected the position. He informed DJ Ikram that the Respondent was not asserting that the Appellant had been prohibited from changing his address in Poland and/or from leaving Poland. The Respondent accepts that the District Judge's reliance upon the contents of Counsel's opening note in his judgment was erroneous. He should not have proceeded on the basis that the Appellant was prohibited from changing his Polish address without notifying the relevant authorities and he should not have proceeded on the basis that the Appellant was prohibited from leaving Poland.
27. That said, it was still the case for the Respondent that the Appellant was a fugitive from justice as from a time shortly after the Appellant had left Poland in 2012/2103. That issue was debated before me between Mr Henley and Mr Swain with some enthusiasm. With respect to them both, it does not seem to me to be fruitful to lengthen this judgment by analysing their various arguments and reaching conclusions upon them. I say that because the District Judge considered whether the Article 8 rights of the Appellant and his family were a bar to extradition, not just upon the basis that he was a fugitive as from late 2012, but also on the basis that he was not – see the last paragraph on page 9 of the judgment.
28. The plain fact is that the District Judge identified many very powerful reasons why the Appellant's extradition to Poland to serve the balance of his cumulative sentence was justified. They are, in summary, the public interest in honouring extradition requests, the length of the sentence still to be served, the nature and the seriousness of the offending, the fact that the delay between the Appellant's erroneous release in 2012 and the issue of the EAW was primarily the consequence of the Appellant applying to the Respondent to make a cumulative sentence and then seeking to appeal that sentence and/or postpone its execution and the fact that the Appellant has committed offences in the UK since his return in 2102. As DJ Ikram correctly observed there would need to be "very strong counter-balancing factors before extradition could be disproportionate".
29. At pages 10 and 11 of his judgment the District Judge identified all the possible counter-balancing factors. He attached considerable weight to the fact that the Appellant's return was being sought in respect of an offence for which he had previously been extradited. He recognised that the previous extradition and the administrative error which led to the Appellant's release from prison significantly lessened the public interest in the Appellant being extradited in respect of this offence. Self-evidently, however, the offence of burglary was only one of the nine offences specified in the EAW. Additionally, the District Judge paid proper regard to the circumstances of the Appellant's family and the impact extradition would have upon them – especially in terms of the loss of income they would suffer.
30. Notwithstanding the admitted error of the District Judge as identified in paragraphs 24 to 26 above I have reached the clear conclusion that the District Judge was not wrong to conclude that extradition would not constitute a disproportionate interference with the Article 8 rights of the Appellant and his family and that, accordingly, extradition was not barred by section 21 of the 2003 Act. He was fully entitled to conclude, as he did, that even if the Appellant was not a fugitive from justice between 2012 and 2016, his extradition was justified and not barred under section 21.
31. Given my conclusions, I have no option but to dismiss the appeal.
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