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
		12 April 2017

Sir Wyn Williams:

1. This is an appeal against an order for the Appellant's extradition to Poland made by District Judge Rose on 6 April 2016. Her order requires the Appellant to be returned to Poland to serve 10 months and 10 days imprisonment which is the outstanding balance of a sentence of 12 months imprisonment imposed by the Polish court for an offence of theft on 18 February 2003. On that date the sentence was suspended; however, there is no dispute that on 21 January 2005, after the Appellant had come to the UK, the sentence was activated because the Appellant had failed to comply with a number of the conditions of his suspended sentence.
2. The Appellant's conviction and sentence related to an offence committed on 7 October 2002. At that date the Appellant was a single man aged 19.
3. The sole ground of appeal is that the District Judge was wrong to direct the Appellant's extradition because it would constitute a disproportionate interference with the rights of the Appellant and his family pursuant to Article 8 ECHR.
4. Before I consider the ground of appeal I should record that after the hearing before me had concluded Mr Payter, on behalf of the Respondent, sent me some further information which had been supplied to those who instruct him by the Respondent on or about 14 March 2017. He submitted that I should take that information into account in determining the appeal. Mr Cooper, for the Appellant, objects to this proposed course of action. He submits that the information which the Respondent seeks to put before me could and should have been available to District Judge Rose. He submits that it is now far too late for any reliance to be placed upon this information. I agree with Mr Cooper. I also agree that those instructing Mr Payter should have made a formal application to me (on notice to the Appellant's solicitors) to admit the information as evidence rather than simply send it on with an invitation to me to take it into account. In reaching my decision I have paid no regard to the information sent to me after the hearing had concluded.
5. Whether or not extradition constitutes a disproportionate interference with the Article 8 rights of an Appellant and his family is to be judged in accordance with a trilogy of cases, namely Norris v Government of the United States of America (No.2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, and Celinski and others v Polish Judicial Authorities [2015] EWHC 1274. 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 and, in any event, the principles and guidance which are particularly relevant to this case are referred to sufficiently in the skeleton arguments of the parties.
6. It is clear from the written judgment of the District Judge that she understood fully the relevant principles and guidance to be derived from the cases to which I have just referred. Mr Cooper's complaint is that she "placed too much weight on the Appellant's (admitted) fugitive status and failed to apply sufficient weight to the extensive unexplained delay that has occurred in this case…." – see his skeleton at page 4 paragraph 17.
7. Let me set out the relevant chronology in the light of this complaint. The offence was committed in October 2002. Conviction and sentence followed on 18 February 2003. On 27 May 2004 the Appellant left Poland for the UK. By that date he had not paid the compensation which he had been directed to pay as part of the suspended sentence order; upon arrival in the UK he did not inform his probation officer of his address and he did not keep in contact with the officer. On 21 January 2005 the sentence was activated. On 19 September 2006, a domestic warrant was issued; a period of 1 year and 8 months had elapsed between the activation of the sentence and the issue of the warrant. A European Arrest Warrant (EAW) was issued on 10 January 2009; that was 2 years and four months following the issue of the domestic warrant. This EAW was sent to the National Crime Agency on 21 April 2015; 6 years and 3 months had elapsed between the issue of the warrant and its onward transmission to the UK. On 27 January 2016 the Appellant was arrested pursuant to the warrant although subsequently the warrant was withdrawn. A second warrant was issued on 5 February 2016, certified by the NCA on 22 March 2016 and the Appellant's arrest pursuant to this warrant took place on 30 March 2016.
8. Before the District Judge there was no explanation for these very substantial periods of delay other than that the Appellant was a fugitive from justice. There was no evidence from the Respondent about the steps, if any, which had been taken to locate the Appellant following the activation of the suspended sentence.
9. Between 27 May 2004 and early 2016 the Appellant lived openly and lawfully in the UK. He committed no offences during this period of time. In 2005 he met his current partner. They have three children who are now aged 8, 7 and nearly 2. The Appellant's partner has a child aged 12 from a previous relationship and there is no dispute that the Appellant treats that child as a child of the family.
10. At the time of the hearing before the District Judge the Appellant and his partner were not living together. That was not because they were estranged. The Appellant had moved from the North West of England (Blackpool) to London to secure better paid employment. That said, the Appellant used modern means of communication (such as Skype) to keep in frequent contact with his family. On the evidence available to the District Judge at the time of the hearing it was unclear how long these living arrangements would continue. In her unchallenged evidence the Appellant said that "[the Appellant] and I are looking for him to return to working in Blackpool at some point" – see paragraph 9 of her witness statement. In a statement from the Appellant dated 6 March 2017 (admitted before me without demur on the part of Mr Payter) he informed me that he had returned to live and work in Blackpool in January 2017.
11. In her judgement the District Judge proceeded on the basis that the Appellant's working and living arrangements as described to her were settled at least for some time. In my judgment, she cannot be criticised for adopting that approach given the evidence before her.
12. As is obvious from the forgoing it was the Appellant's partner who had primary responsibility for the case of the 4 children at the time of the hearing before the District Judge. Further, there is no dispute about the fact that the Appellant's partner was in receipt of state benefits which supplemented the total income available to the family.
13. It is clear from the judgment of the District Judge that she treated the very substantial delays which have occurred in this case as a factor which militated against extradition - see page 9 point 1. In her view this factor attracted "some weight". Under the heading "Decision" the District Judge expressed the view that the delay was such that it "might have tipped the balance against extradition". However, she drew back from that conclusion because the Appellant was a fugitive "who did not maintain contact with his probation officer and [who] did not notify the Polish authorities of his address". In the view of the District Judge these circumstances meant that the Appellant should bear considerable responsibility for the delay.
14. The District Judge began her concluding paragraph by asserting that "this is a case where there is a fine balance". I have thought long and hard about that finding since, if it is "not wrong", the reality of this case is that it would be impossible to say that the ultimate conclusion of the District Judge was wrong. Persuasively as this case has been argued by Mr Cooper, I cannot but agree with the District Judge that this case is, indeed, finely balanced. On the one hand the unexplained delays are very substantial on any view and, in truth, given the lack of explanation for the delays, it is very difficult to avoid the conclusion that the Respondent bears a significant degree of responsibility for the delay overall. On the other hand, the Appellant is properly to be regarded as a fugitive and it is difficult to reach the conclusion that the impact of extradition upon the Appellant and his family is likely to reach the degree of severity which the case law demands before an order for extradition can properly be categorised as a disproportionate interference with the Article 8 rights of the Appellant and his family. Ultimately I have reached the conclusion that the weight which the District Judge attached to the relevant factors and her conclusion overall were well within the range open to a reasonable decision maker. In this circumstances, I cannot categorise the decision of the District Judge as wrong.
15. I have asked myself whether the fact that the family is now living together in Blackpool and that the Appellant is working in that town makes such a difference that I should now reach the conclusion that extradition would amount to a disproportionate interference with Article 8 rights. Obviously, the fact that the whole family is living together and that the Appellant is available to an extent to share in the everyday care of the children is a factor which further militates against the Appellant's extradition. However, this additional factor does not persuade me that the decision of the District Judge should now be regarded as wrong.
16. Accordingly, I have reached the conclusion that this appeal must be dismissed.