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
		20/12/2017

Mr Justice Nicol :

1. This is an appeal against the decision of District Judge Vanessa Baraitser on 28^th April 2017 to order the Appellant's extradition to Poland pursuant to a European Arrest Warrant ('EAW') issued by the Circuit Court of Katowice, Poland for the Appellant to serve the remainder of a 2 year sentence of imprisonment imposed on him for importing into Poland a total of some 5 kilos of marijuana from Holland.
2. The sole ground of appeal is that the District Judge was wrong not to find that the Appellant's extradition was incompatible with Article 8 of the European Convention on Human Rights and that she was therefore wrong not to order his discharge pursuant to Extradition Act 2003 ('EA 2003') s.21. Particularly in view of delay at various stages of the process, it is said that extradition would now be a disproportionate interference with the rights of the Appellant and his family to private and family life.
3. The offences were committed between August and September 2005. The Appellant was convicted in the Circuit Court of Katowice in March 2007 and sentenced (in his presence) to 4 years imprisonment. His counsel appealed. On 18^th October 2007 the appeal court reduced his sentence to one of 2 years imprisonment. Of this, 1 year, 11 months and 29 days remains to be served.
4. As the Further Information dated 17^th March 2017 from the Judicial Authority explained, the judgment became enforceable from 18^th October 2007. The Appellant was summoned to serve the penalty and, on 5^th December 2007, the Appellant confirmed in person receipt of the summons. He did not appear in answer to the summons and, on 14^th July 2008 a national wanted notice was issued for him. The Polish police did not know where he was and on 27^th July 2009 a decision was taken to suspend enforcement proceedings.
5. In May 2012 the police informed the Court that the Appellant could be staying in Great Britain. In 2013 they had information that he was probably staying in Warrington, Cheshire and this information was repeated in Box A of the EAW in response to the question 'residence and/or known address'.
6. The EAW was issued on 14^th October 2013. It was not certified by the National Crime Agency until 19^th January 2017. The Further Information, to which I have already referred, explained the lapse of time between the EAW being issued and it being certified as follows:

'from the information sent by the XXI Criminal Division of this court, which issued the EAW in respect of the convict, and which made the entry in the SIS system it shows that the delay between the issue of the EAW in the matter of [the Appellant] – that is 14.10.2013 and the date of disclosing the entry in the SIS arose due to the fact that the Great Britain only on 13.04.2015 was given access to the Schengen Information System, the reason that Great Britain was not earlier the party to the Regulation of the European Parliament and the Council of the European Union of 20.12.2006 (EC No 1987/2006) on the establishment of SIS II. On the Polish side - the organisational and technical activities designed to the adjustment of the entries in the SIS to the standards of SIS II were taken after 9.04.2016. This required, among others, obtaining detailed information on the sought person from the relevant, by the last place of residence, police units if the convict is violent, armed and the like. Having gathered all the required information, on 10.01.2017 there was the migration of entry to the SIS done of [the Appellant], which the data meet the requirements of the SIS II, and thus they are visible to the British side.'

7. The Appellant was arrested and brought before the Westminster Magistrates' Court on 1^st February 2017.
8. The Appellant gave evidence before the District Judge who found as follows:

i) He was present at the trial and aware of the sentence passed by the trial court. He instructed his lawyer to appeal.

ii) He came to the UK in 2007 while the appeal process was ongoing. He did not tell the Polish authorities. He knew he had a sentence to serve but wanted to start a new life here.

iii) He has been employed by the same employer for 5 years. At the time of his arrest, he worked full-time in a warehouse.

iv) The Appellant had a daughter, Victoria, (aged 7 at the time of the District Judge's decision). The Appellant and Victoria's mother are separated and Victoria lives with her mother. Victoria is collected from school by the Appellant on some days and she sometimes stays over with him on the weekend. He makes informal contributions to her maintenance.

v) The Appellant's present partner is Ms Wesowoski with whom he had been living between January- December 2016. The Appellant moved out in December when he became aware that the police were looking for him.

vi) Ms Wesowoski has a daughter, Susanna (aged 9 at the time of the judgment). Susanna had been living in Poland but moved to the UK in August/September 2016. Susanna attends the same school as Victoria and the Appellant used to collect Susanna from school sometimes.

vii) Since the Appellant has been in custody, Ms Wesowoski's mother came to live with her to help look after Susanna.

viii) Ms Wesowoski did not provide a statement or give oral evidence.

9. The District Judge had no doubt that the Appellant was a fugitive:

i) He was present at court during his trial. He was aware that the trial judge sentenced him to 4 years imprisonment.

ii) When he left Poland he was aware that appeal proceedings were on-going and that his sentence had not then been overturned.

iii) He was also aware that the outcome of the appeal was that his sentence was reduced but remained outstanding.

iv) On 5^th December 2007 he confirmed in person the receipt of the summons requiring him to surrender himself to custody.

v) He left Poland in breach of his conditions of bail that obliged him to report to a police station, surrender his passport and prohibited him from leaving that jurisdiction. He did not inform the authorities of his departure, nor provide an address in the UK

vi) A summons to attend prison was sent to his last known address.

10. Because the Appellant was a fugitive, he was unable to rely on the passage of time for the purposes of the bar to extradition in EA 2003 s.14.
11. So far as EA 2003 s.21 and Article 8 ECHR were concerned, the District Judge appropriately referred to the guidance in Norris v USA (No.2) [2010] 2 AC 487, HH [2012] UKSC 25 and Celinski v Poland [2015] EWHC 1274 (Admin). In accordance with the recommendation in Celinski, she drew up a balance sheet.
12. In favour of extradition, she listed the following at [46] of her judgment;

'- The weighty requirement in the UK to fulfil obligations under the EAW scheme.

Mutual confidence and respect for the decisions of the judicial authority.

There is a significant public interest in people convicted of crimes serving their sentences.

Whilst [the Appellant] assists with the care of young children, neither of them lives with him at his address and neither is financially dependent on him.

His daughter lives with her mother and her mother's new partner.

His partner's daughter is cared for by her mother and grandmother.

[the Appellant] is a fugitive from justice.

The Judicial Authority were unaware of Mr Sobczyk's whereabouts between 2007 and 2012.

The offences are serious.

A significant sentence of imprisonment remains to be served.'

13. At [47] she listed the factors tending against extradition which were as follows:

'- [the Appellant] has lived in the UK for nearly 10 years.

He has led a law-abiding life.

He works full-time and has been with the same employer for nearly 5 years.

His daughter, with whom he has regular contact, lives in the UK.

He provides financially for her on an ad hoc basis.

The daughter of his current partner lives in the UK. Before his remand into custody he regularly assisted with her child care.

The offences are 12 years old, having been committed in 2005.

Some delay (between October 2013 and January 2017) seems to have been caused by a change in system requirements in the Schengen Information System.'

14. The District Judge had earlier in her judgment elaborated on delay in [44] when she said,

'Regarding delay, my starting point is that Mr. Sobczyk is a fugitive and has been since 5 December 2007. His absence from the jurisdiction has been the cause of the delay in serving this sentence. The Further Information makes it abundantly clear that his whereabouts were unknown to the Judicial Authority between December 2007 and May 2012. There may have been delay between the issue of the EAW (13^th October 2013) and its certification (19 January 2017). This seems to have been caused by a change in system requirements in the Schengen Information System. This delay carries some weight in the balancing exercise. However, in the context of a conviction case, in relation to serious offences and where the requested person has been fugitive since leaving Poland in 2007, there are significant counterbalancing factors.'

15. Permission to bring this appeal was refused on the papers, but granted at a renewed hearing by Sir Ross Cranston who said,

'The Divisional Court needs to decide whether any significant weight should be attached to delay by the authorities in seeking extradition when the Requested Person is a fugitive. Particularly, on the apparent conflict between the four cases of Oreszczynksi v Poland [2014] EWHC 4346 (Admin); Marchewka v Poland [2016] EWHC 998 (Admin), Miller v Poland [2016] EWHC 2568 (Admin) and Juchniewicz v Poland [2013] EWHC 1529 (Admin) and the decision in CO/137/2017 Sibilski v Regional Court and the Circuit Court in Warsaw (Poland) [2016] EWHC 998 (Admin).'

16. For category 1 territories the provision which deals expressly with the effect of the passage of time is EA 2003 s.14. So far as a conviction EAW is concerned, this provides,

'A person's extradition to a category 1 territory is barred by reason of 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… (b) become unlawfully at large…'

17. As the District Judge rightly recognised, if a requested person is a fugitive then it is only in the 'most exceptional circumstances' that he would be able to invoke this bar to extradition – see Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 and Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779. No such exceptional circumstances are relied upon here.
18. The structure of decision-making in relation to EA 2003 s.21 and Article 8 ECHR is different. If, as will very frequently be the case, extradition will constitute an interference with the Appellant's private or family life (and where it may also amount to an interference with the private and / or family lives of members of his family) the issue is whether such interference is proportionate.
19. The leading authorities are Norris v Government of United States of America (No.2) [2010] 2 AC 487, H(H) v Deputy Prosecutor of the Italian Republic , Genoa (Official Solicitor Intervening) [2013] 1 AC 338 and Polish Judicial Authority v Celinski [2016] 1 WLR 551. It would be superfluous for me to repeat what has been said in those decisions, but of particular importance to the present case are the following points,

i) In conducting the balancing exercise which is required in deciding whether extradition would be proportionate, it is important for a District Judge to draw up a balance sheet - see Celinski at [15] – [17], as Judge Baraister did in this case.

ii) There is a constant and weighty public interest in seeing that extradition treaties are honoured and that those convicted of crimes should serve their sentences - see for instance HH at [8(4)].

iii) There is also a public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice – see for instance HH ibid and Celinski at [9].

iv) The best interests of any children involved are a primary consideration in the balancing exercise, although not the primary consideration and not always a paramount consideration - see for instance HH at [11].

v) Delay since the crimes were committed may diminish the weight to be attached to the public interest in enforcing extradition arrangements and increase the adverse impact of extradition on public and family life - see for instance HH at [8(6)].

vi) If the requested person is a fugitive from justice, that is still relevant for the purposes of conducting the Article 8 balance – see for instance Celinski at [9] and [48]. However, notwithstanding the requested person's fugitive status, extradition may still be disproportionate – see for instance the case of F-K whose appeal to the Supreme Court was successful where, as Lady Hale said in HH at [46]

'While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon the passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay was relevant to the article 8 question. Whatever the reasons, it does not suggest any urgency about bringing the appellant to justice, which is also some indication of the importance attached to her offending.'

Lord Judge CJ said of the same case at [133],

'We must proceed on the basis that the appellant fled Poland knowing of the criminal charges she was due to face. The offences were not trivial, but nor were they of the utmost seriousness. The most recent occurred over a decade ago. The prosecuting authorities have been dilatory in the extreme.'

vii) All of these Article 8 cases are intensely fact sensitive. The value in citing decisions from earlier cases is therefore very limited – see Celinski [14(iii)] and Kortas v Regional Court in Bydgoszcz (Poland) [2017] EWHC 1356 (Admin) at [37].

20. On the Appellant's behalf, Ms Malcolm QC advances her arguments under two heads:

i) She submits that the District Judge failed to give proper weight to delay in the present case. There was the background of 4 – 5 years between the conviction and appeal and any action. There was then culpable delay of some 18 months between the Polish authorities being informed that the Appellant was probably in the UK and the issue of the EAW. There was further culpable delay of some 3 years and 3 months between the EAW being issue in October 2013 and certified by the NCA in January 2017.

ii) She further submits that the District Judge did not take into account the uncertainty as a result of Brexit on whether the Appellant would have any right to return to the UK following completion of his sentence and whether his relationship with Victoria and Susanna could then be permanently severed.

21. It is convenient to take Ms Malcolm's second argument first. I accept that there was a passing reference to uncertainty post-Brexit in Ms Bostock's perfected grounds of appeal and the point was therefore before Sir Ross Cranston when he gave permission to appeal on 17^th August 2017, although his order did not allude to it.
22. But, in any case, the argument has no merit. What may be the outcome of the Brexit process is highly uncertain. It would be quite wrong for this Court to speculate as to what transitional or final arrangements would apply to someone in the Appellant's position.
23. I return to Ms Malcolm's first ground. She submits first that the District Judge failed to take account of the period prior to the issue of the EAW in October 2013. She submits that this was culpable delay because the Appellant, during that time was registered with the Home Office, and with HMRC and was actively using his UK bank accounts.
24. The first difficulty with this submission is that the evidence on which Ms Malcolm relies was not adduced before the District Judge. This Court can entertain evidence that is produced for the first time – see EA 2003 s.29, but the requirements which must be satisfied were analysed in the well-known case of Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin). There is no explanation before us as to why this evidence was not adduced before the District Judge. Furthermore, Ms Malcolm relies on this evidence as material to the period prior to the Polish authorities receiving information in October 2013 that the Appellant was probably in Warrington. Before then, there was no evidence as to why the Judicial Authority should have had the UK in mind as to the Appellant's new home. I would not give permission for this additional information to be adduced.
25. Next Ms Malcolm criticises the District Judge for ignoring the period of delay between May 2012 and the issue of the EAW in October 2013. As to this period, the Further Information from Poland said,

'In May 2012 the Komeda Policji [Police Headquarters] in Sosnowiec forwarded to the court the information that the convict can stay on the territory of Great Britain, and in 2013 there was given the probable name of the locality where the convict can be staying.'

It is a reasonable inference from this that it was only in October 2013 that the Polish authorities narrowed the Appellant's likely location from 'Great Britain' to what was specified in the EAW viz. probably Warrington, Cheshire. I would not regard inactivity in that interval as culpable delay.

26. As to the final period (between the issue of the EAW) and its certification by the NCA, Ms Malcolm is not right to say this delay is unexplained. The Further Information did give the explanation which I have quoted above and which was to do with the arrangements that needed to be put in place for the Schengen Information System. Ms Malcolm submits that the District Judge should have been sceptical of this explanation. She said in her skeleton argument

'As is notable from the vast quantity of Polish EAWs dealt with prior to 2015/2016, the accessibility of the Schengen Information System has no impact on the execution of a live EAW from 2013.'

However, so far as we are aware, the reliability of this answer was not questioned before the District Judge. It may sometimes be the case that the further information provided by a Judicial Authority is opaque or, superficially, at least, in conflict with other information in the District Judge's possession, but where that is so, the matter should be explored in the Magistrates' Court and the Judicial Authority be given the opportunity to clarify matters. As it stands, Ms Malcolm's argument implies that the District Judge should have disbelieved the explanation given by the Judicial Authority, despite the mutual trust and respect which our courts are required to extend to the Judicial Authorities of other Member States. I do not accept that the District Judge can be criticised because she did not take that course. In any case, the District Judge did take into account that there had been some delay between the issue of the EAW and the Appellant's arrest: that was one of the factors she listed as tending against extradition.

27. Two further matters are argued by Ms Malcolm. First she submits that matters have now moved on since the District Judge made her decision in the sense that the Appellant has been in custody in the UK for a longer period (about 9 months) and is only 11 weeks short of the half way point of his sentence when he would be able to apply for discretionary release. Secondly, she argues, the Appellant has an outstanding application in Poland for his sentence to be transferred.
28. We thought it right to find out what the position was in relation to the first of these points. On our behalf, the CPS posed the following questions to Eurojust and obtained the following answers;

i) Question: Please confirm how Article 26 of the Framework Decision 2002/584/JHA is applied in Poland. For each day spent in custody in the executing authority (UK), what period of time is counted against a requested person's sentence in Poland? EG if he spent 9 months in custody in UK does that count as 9 months of his sentence in Poland? Or some other period, and if so, what?

Answer: The period of time spent in custody is counted on a day by day basis, i.e. if 9 months are spent in custody that would count as 9 months of the sentence in Poland.

ii) Question: If someone has been sentenced to 2 years imprisonment and has 1 year 11 months and 29 days left to serve, at what point during that sentence is he eligible for release? Is the release automatic (and, if so, at what point of the sentence) or discretionary? E.g. will he automatically be released after serving half the sentence? Or at some other point? Or is it discretionary? And if so, at what point during the sentence can the discretion be exercised.

Answer: After half of the sentence is served in Poland, the subject can apply to the court to have the sentence reduced or the remainder suspended but this is not automatic and is a decision for the court. There are some cases (such as organised crime) where the sentence will specify that such an application can be made until two thirds of the sentence has been served.

29. On the basis of these answers it would seem that (i) the time which the Appellant has spent on remand in the UK will count against the remainder of the sentence which he has left to serve, but (ii) even taking account of that period on remand in the UK, the Appellant will still by some margin be short of the half way point in his sentence, and (iii) even at the half way point it will be a matter for the discretion of the Polish court as to whether the remainder is reduced or suspended. It is not for us to anticipate how any such discretion may be exercised. Nor is it for us to forejudge how the Polish court might respond to his application to be allowed to serve the remainder of his sentence in the UK. For the time being, we must deal with the request, as embodied in the EAW for his return to Poland.
30. I stand back from the individual points made by Ms Malcolm to consider whether it can be said that DJ Baraitser's decision as to the proportionality of this extradition request was wrong. In my judgment, the firm answer is that it was not. The offence was serious – importation of 5 kilos of marijuana into Poland; the sentence of the court was significant – 2 years immediate imprisonment; the Appellant is a fugitive; the two children, whose best interests are a primary concern of the Court, each have a primary carer who is not the Appellant; there has been some delay, but it is not of such a degree as to counter-balance the strong considerations that reinforce on the facts of the case, the generally strong public interest in favour of upholding extradition arrangements.
31. In granting permission to appeal, Sir Ross Cranston invited the Divisional Court to address the apparent conflict between the series of cases which he listed. On reflection and after hearing the full and careful arguments of Ms Malcolm and Mr Swain, I am not persuaded that this case lends itself to that exercise. I have summarised above the principles which I see as relevant to the disposal of the present appeal. One of those is that each case requires an intense focus on its particular facts. Comparing one set of facts with another has limited utility.
32. It follows that, despite the skilful and very helpful arguments advanced by Ms Malcolm, I would dismiss the appeal.

Lord Justice Gross:

33. I agree.