England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		1 March 2017

1. MR JUSTICE NICOL: This is an appeal against the decision of District Judge Inyundo, who on 4 November 2016 ordered the appellant's extradition to Poland pursuant to a conviction European Arrest Warrant and to serve a sentence of 18 months for an offence of burglary. The appeal is brought with the leave of Collins J.
2. The offence took place in 2001. On 27 August 2001 the appellant burgled a district office by breaking a lock on a side door and stealing a computer, a monitor, various other computer peripherals and a quantity of cash. In total the loss was about 10,450 Polish zlotys; I am told that is the equivalent of about £2,000.
3. The appellant was prosecuted and he was sentenced on 2 December 2003. The sentence was suspended for four years. During the period of suspension, the appellant committed other similar offences in 2005. That led to the suspended sentence being activated on 29 May 2007.
4. The activated sentence then was postponed on 30 November 2007 on the appellant's application. It was postponed a second time, on 16 July 2008, again on the application of the appellant. However, these postponements ran out in January 2009. The appellant was required then to surrender. He failed to do so. The Judicial Authority said he was unlawfully at large after that date.
5. The European Arrest Warrant was issued on 2 September 2011. It was received by the Serious Organised Crime Agency on 25 November 2011. At first SOCA, and then the NCA, were unable to find the appellant. The arrest EAW was finally certified in February 2016.
6. In the meantime, the appellant came to the United Kingdom in 2005. His mother remained in Poland and he used her address in his dealings with the Polish authorities. There was later evidence about what, if any, contact the appellant had with his mother. In his evidence, he agreed that he was told that if he changed his address he had to tell the authorities, but he said the Polish address (ie the address of his mother) never changed. He said that he had asked his Polish lawyer to intercede with the authorities in Poland, but he said he thought that the application had been for the suspended sentence to be further suspended.
7. By the time of the extradition proceedings, the appellant had a partner. Two older sons of his were in work, but they still lived at home. His youngest son was 10 years old and at primary school. His partner worked full time. Since 2007 they had lived in Reading. They have lived at their present house, 18 Donnington Road, since 2008.
8. The district judge heard evidence from the appellant and his partner. The district judge made findings as to the evidence he had heard from the appellant. He said this:

"67. In my judgment the evidence given on behalf of the requested person was far from satisfactory. Having considered the evidence, I have concluded that the requested person was fully aware that he would be required to serve the activated sentence and has sought to avoid doing so. He knew in 2005 that the suspended sentence was likely to be activated. In fact, it was in 2007 - the year he moved to the UK permanently. He instructed a lawyer to apply for two postponements of the sentence, successfully, in 2007 and 2008. Thereafter, he was aware that the sentence would need to be served. I do not accept the requested person's account that he thought the sentence had been further suspended. I do not accept that he was unaware of the summons to attend prison. The evidence of his contact (or lack of it) with his mother was contradictory and not persuasive. I conclude that at the very least he put his head in the sand. Whilst it is clear the Polish authorities in 2007 and 2008 were aware he was working in the UK, it appears to me that the requested person moved to his current address after the final postponement of the sentence which may also explain the difficulties in locating him after 2009.

68. I therefore conclude that the requested person has sought to evade serving the custodial sentence imposed in 2003 and activated in 2007."

9. The district judge rejected an objection to extradition based on section 14 of the Extradition Act 2003 and oppression due to the passage of time. That objection to extradition has not been pursued on this appeal.
10. The district judge also rejected an objection that the extradition would be contrary to Article 8 of the European Convention on Human Rights, and therefore extradition was barred by section 21 of the Extradition Act 2003. The district judge looked at the factors favouring extradition and those against, as recommended by this court in Celinski v Slovakia [2015] EWHC 1274 (Admin). In favour was the public interest in giving effect to extradition arrangements; the strong public interest in not allowing the UK to become a place of safety for fugitives, which is what the district judge said the appellant was; and the appellant's awareness for many years that he was obliged to serve this term. The offence of which he had been convicted was also serious.
11. Against extradition were the following: (1) the 15 years which had passed since the offence was committed, though, as the district judge put it, the appellant "must have known that the day would come when he would have to reckon with the sentence which had been passed"; (2) the appellant had lived a blameless life in the UK, he had a close and settled family life, and that included responsibility for a 10-year-old boy; (3) the appellant suffered from scoliosis, which he managed with pain relief. The district judge decided that extradition would not be disproportionate.
12. On the appellant's behalf, Miss Herbert argues first that the district judge was wrong to find that the appellant was a fugitive. There was no information that once the final sentence was made and activated, the appellant had been directed to attend prison. Second, it was not open to the district judge to find that the appellant had moved to his present premises, 18 Donnington Road, after July 2008, or that the appellant sought to evade serving the custodial sentence. Third, she relies on the great length of time since the index offence had been committed. Fourth, the appellant did commit another offence but he had been punished separately for that.
13. I take first Miss Herbert's argument that the district judge was wrong to find that the appellant was a fugitive. Miss Herbert recognises that this is a difficult task to succeed on because the district judge heard live evidence from the appellant and his partner and an appellate court will be slow to interfere with findings of fact that depend at least in part on oral evidence. Nonetheless, Miss Herbert says that that is the conclusion to which I should come. She argues that the district judge could not properly find that the appellant knew that in 2005 a suspended sentence was likely to be activated. She notes that the further offences were dealt with in 2005, but it was not for another two years that the suspended sentence was activated. That is as may be, but the district judge recorded the appellant's evidence in cross-examination that he knew that one of the conditions of suspension was that he commit no further offences, and "he said he knew if he committed further offences the suspended sentence would be activated". Later in his evidence, the appellant had said that he thought the 2005 offences would not activate the suspended sentence because they were offences under a different paragraph. But the district judge was entitled to prefer the appellant's earlier evidence. In any event, the appellant did become aware of the activation of the suspended sentence, not least because lawyers on his behalf applied for the suspended sentence to be postponed.
14. The appellant had given his mother's address in Poland as his address for service. The district judge was right to say that there had been contradictory evidence as to whether the appellant maintained contact with his mother. In his proof of evidence, the appellant had said his parents separated and he did not maintain contact with his father; he said nothing in his proof about his lack of contact with his mother. In answer to supplementary questions in his evidence-in-chief, he said he had had no contact with his mother and no knowledge of any correspondence from the Polish authorities to her address. In cross-examination, he accepted that he was aware that the Polish authorities would continue to use his mother's address because that was the only one they had for him.
15. The appellant's partner gave different evidence. She said the appellant "has a good relationship with his mother" and she, the partner, "has good contacts with her". Later in the appellant's partner's evidence, she said that there had been no contact with the appellant's mother since Christmas 2008. She said the appellant's mother was an alcoholic and may have been evicted from her home. It was not something the appellant said in his evidence. In these circumstances, the district judge was entitled to say that "the evidence of the appellant's contact (or lack of it) with his mother was contradictory and not persuasive".
16. Miss Farrent, for the respondent, notes that it was only in his oral evidence that the appellant said he thought his Polish representatives had applied for his sentence to be re-suspended. The district judge was entitled to reject that evidence.
17. Overall, and despite Miss Herbert's submissions to the contrary, I find that the district judge was entitled to conclude, as he did, that the appellant was aware of the summons to attend prison and start serving his suspended sentence. In those circumstances, the appellant was indeed a fugitive. I reject this part of Miss Herbert's challenge.
18. There was a considerable interval between the European Arrest Warrant being issued in September 2011 and the appellant's arrest in 2016. Miss Herbert notes that the appellant had been living in the UK since 2005, or possibly 2007. He had registered with the Home Office as a worker from one of the accession countries, and since some time in 2008 he had lived at his present home, 18 Donnington Road, Reading. There was an issue as to when precisely he had moved to 18 Donnington Road in 2008, but I am not sure this is of importance. Miss Herbert is entitled to say that he lived openly. His address was known to the Home Office and the delay in dealing with the European Arrest Warrant is, in part at least, unexplained.
19. That said, if, as I hold, the district judge was entitled to find the appellant was a fugitive, it significantly diminishes the significance of even culpable delay by the NCA. It does not eliminate the significance of the delay as I accept, but the district judge recognised that this was the case, and included delay and the length of time since the index offence in the balance weighing against extradition.
20. The district judge, as I have said, acknowledged other factors in the appellant's favour: his blameless life in the UK, his family life with his partner and sons, and the fact that his youngest son was only 10 years old. Unfortunately, as the district judge also recognised, the appellant suffers from scoliosis, or curvature of the spine, which he manages with painkillers. All that was recognised by the district judge, but it had to be set against the factors in favour of extradition, including the public interest in giving effect to extradition arrangements and not allowing the UK to be a safe haven for fugitives. Miss Farrent for the respondent also observes that what triggered the activation of the suspended sentence was not just one offence but further similar offences, in the plural. She submitted that the loss from the index offence was sufficiently great to justify the district judge referring to it as "serious".
21. In my judgment, it is not the case that the district judge's decision that the Article 8 balance came down in favour of giving effect to the EAW can be described as wrong. Accordingly, this appeal is dismissed.