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
		7 February 2017

1. MR JUSTICE GARNHAM: The Appellant Mr Adam Kwasniewski appeals against the order for his extradition to Poland made by District Judge Bayne on 18 August 2016. Permission to appeal was refused on the papers by Collins J but granted on the renewal hearing by King J.
2. The order for extradition was made pursuant to a conviction European arrest warrant issued on 30 July 2013 and certified by the NCA on 2 May 2015. The Appellant is requested in order to require him to serve the remaining 8 months or so of a two-year sentence for offences committed on 14 October 2004.
3. Those offences were serious. They are described in this way by the District Judge:

"On 17 April in Belchatow the Defendant... was part of a group which attacked the owner and two security guards at a nightclub. The defendant and three others punched and kicked one of the guards... causing him to sustain concussion, bruising to his head and chest, a fractured rib, a fractured finger and a fractured and displaced nose. Others in the group threw bottles and sticks and attacked the owner and the other guard, who sustained bruising. On the same occasion the group made threats to kill and to set fire to property and damaged the club owner's car."

4. Mr Grandison for the Appellant advances one ground of appeal, namely that pursuant to section 27(3) of the Act, the District Judge ought to have decided differently the question of whether extradition would be compatible with the Appellant's and his family's right under Article 8 of the Convention. Had she done so she would have been required to order the Appellant's discharge."
5. In addressing the Article 8 ground as it was advanced before her, the District Judge said this at paragraphs 31 to 33:

"31) The RP has lived in the United Kingdom for almost 5 years and he has not been arrested for any criminal offences. He has consistently worked and contributed to society. He has formed a family life with his partner and they have a newly born son. These factors militate towards discharge.

32) On the other hand, having evaluated the RP's evidence and the chronology of the proceedings in Poland, I am satisfied to the requisite standard that the RP was a fugitive when he arrived in the United Kingdom and any rights that he has established under Article 8 are diminished as a result.

33) The offence he was convicted of in 2004 was a serious offence."

6. The District Judge continued at paragraph 36:

"36) I find it inherently incredible that his probation officer would have given him permission to leave the jurisdiction in such circumstances, and in the absence of other evidence that such was the case, I do not believe this element of the RP's account.

37) Even if I am wrong to find that he was a fugitive when he arrived in the United Kingdom in 2011, there is absolutely no doubt that he became aware that he was wanted in Poland in 2013 — this is his own evidence[...]

38) Despite this, he went ahead and had a baby with his partner and he cannot now rely upon such a decision to further his claim that his Article 8 rights will be adversely affected by an order to extradite.

39) His partner and child will be adversely affected, both emotionally and financially by the RP's absence but there is no evidence to persuade me that the consequences for them will be anything beyond the hardship and upheaval that are sadly inherent in the extradition process. There will be no permanent severance of family ties and the family will not be left destitute in the event of the RP's return to Poland. Both the RP and his partner have family support both in the UK and in Poland.

40) All of these factors militate towards an order to extradite being proportionate."

7. The District Judge concluded at paragraph 41:

"41) I have weighed in the balance the Article 8 rights of the RP and his family, together with the constant and weighty public interest that exists in the lawful extradition process and I have come to the conclusion, for all of the reasons set out, that an order to extradite is both necessary and proportionate and entirely compatible with the Article 8 rights of the RP and his family."

8. Mr Grandison, on the Appellant's behalf, makes four points.
9. First, he says the District Judge omitted from the "balance sheet", which she set out at paragraph 31 of her judgment, the degree to which the Appellant had already been punished for the offence. He argues that notwithstanding the fact that the District Judge acknowledged the further information which clarified the period of time to be served, she made no mention of the fact that the Appellant had served a large portion of his sentence or that he would have been under the court's supervision as the subject of a suspended sentence for in excess of five years.
10. Second, he says the District Judge failed to take account of the age of the offence when assessing proportionality.
11. Third, it is argued that the District Judge "appears to have minimised" the risk that the Appellant's partner and child would be evicted upon the Appellant's extradition.
12. Fourth, he points to the delay from the issue of the EAW to the issue of the NCA certification.
13. Miss Farrant for the Respondent argues that it is clear that the District Judge had the background to the case well in mind when considering her decision. She said that she noted the reduction in the sentence remaining to be served at paragraph 9 of her judgment, and in assessing Article 8 her focus was on whether it was proportionate to order the Appellant's surrender to serve the reduced term of imprisonment. Furthermore, she says that the reduction in sentence was not a factor favouring refusal of extradition. It was simply the background to the case the District Judge was considering.
14. Second, Miss Farrant argues that the fact that the Appellant spent time in custody and was subject to a suspended sentence order were factors that have to be looked at in proper context. She says the procedural background demonstrates that the Appellant benefited from considerable leniency from the Polish court.
15. Third, Miss Farrant says that the passage of time since the offending was not a factor which supported the Appellant's case. The District Judge found him to be a fugitive and the agreed chronology proceedings in Poland demonstrated that the sentence had previously been postponed and suspended on his application.
16. Finally, it is submitted on behalf of the Respondent that the effect of extradition on the Appellant's partner and child was not underestimated by the District Judge. She considered the effect as a separate issue and made reference to the financial and emotional hardship which separation would cause.
17. In my judgment the fact that the sentence to be served had been reduced and only seven or eight months remain to be served was indeed a matter simply of background. That length of sentence exceeded the minimum required for extradition and in my view it is a factor which need appear on neither side of the balancing exercise. It is simply a matter of historical fact.
18. I am acutely conscious of the pressure under which district judges at Westminster Magistrates' Court are required to work but in my judgment the District Judge's decision in this case is vulnerable to legitimate criticism. First, the fact that elements of the sentence had been served, and by that I mean there had been a period of imprisonment served and the Appellant had been subject to probation for some five years or so, were relevant factors to the question of whether or not extradition should be ordered, and ought to have appeared in the balancing exercise in paragraph 32 of the judgment. Second, the time that has passed since the offence is relevant and should also have been referred to in the balance. As Lady Hale said in HH [2013] 1 AC 388:

"The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life."

19. Thus, those two criticisms of the decision are in my judgment well founded. However, I would reject the other two criticisms. It is plain from her decision that the District Judge had well in mind the circumstances of the Appellant's partner and child. She said at paragraph 31 that the Appellant, "... has formed a family life with his partner and they have a newly born son." She said at paragraph 39, "His partner and child would be adversely affected both emotionally and financially by the RP's absence."
20. Furthermore, she did not err in her approach to the significance of the recent birth of the Appellant's child. It is a factor which cannot avail the Appellant and his partner that, that as the District Judge found, "he went ahead and had a baby with his partner", knowing of his precarious position in this country. On the other hand, the District Judge is obliged to consider the Article 8 rights of the child. She did so, and that is apparent in particular from paragraph 49 of her judgment. Nor do I regard the failure to refer to the delay as significant. It is apparent that the District Judge was well aware of the history. The EAW did refer to the Appellant's presence in the United Kingdom, but as is properly conceded by Mr Grandison, it wrongly described him as being resident in London. In my judgment, the delay here was not so marked as to weigh significantly.
21. The result of my finding that there are legitimate grounds for criticism of the District Judge's approach means that the critical question is how this court should approach a case such as this where there are errors in the District Judge's approach on some relevant considerations. In Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) Aikens LJ said at paragraph 66:

"In our judgment, generally speaking and in cases where no 'fresh evidence' arises on an appeal on 'proportionality', a successful challenge can only be mounted if it is demonstrated, on review, that the judge below: (i) misapplied the well-established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse."

22. Where no error of that sort has been made, it is unlikely that a court will reverse the decision of the district judge. But where such a decision has been made, as here, it does not necessarily follow that the appeal would be allowed. As the Lord Chief Justice said at paragraph 24 in Celinski [2015] EWHC 1274 (Admin):

"The single question therefore for the appellate court is whether or not the district judge made the wrong decision ... In answering the question ... the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision of proportionality itself was wrong."

23. So here I must ask myself whether the District Judge's conclusion was wrong. In my view, there remain weighty factors in favour of extradition. Those factors include the matters identified in the District Judge's decision, including the finding that the Appellant was a fugitive, the fact that the offence of which he was convicted in 2004 was serious and the "constant and weighty public interest that exists in the lawful extradition process."
24. There is a danger in the fact that, because the public interest in the lawful extradition process is cited in every extradition case, its weight is not always given proper attention. Accordingly, I remind myself of what Lady Hale said in H

"There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no 'safe havens' to which either can flee in the belief that they will not be sent back."

Here, as in every case, these are very weighty considerations on the side of the scales pointing towards extradition.

25. In favour of the Appellant's discharge are the matters mentioned by the District Judge. In addition, I would take into account to the Appellant's benefit and I would accord significant weight to the fact that the length of the sentence still to be served is modest and the fact that the offence took place in 2004. Viewed collectively, the factors on the side of the scale favouring discharge are, in my judgment, weighty but not overwhelming.
26. In my view, the weight to be accorded to the public interest in the lawful extradition process, the seriousness of this offence and the fact that the Appellant was a fugitive of justice, substantially outweighs the interference that extradition will have on the family life of the Appellant and his partner and child. In those circumstances this appeal is dismissed.