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
		6 April 2017

MR JUSTICE COLLINS:

1. This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Tempia given as long as ago as 1 October 2015 whereby she ordered that the Appellant be extradited to Poland in order to serve a sentence of 18 months' imprisonment which had been imposed for an offence of obtaining by deception, or fraud, committed as long as ago as 2001.
2. The offence in question was the obtaining of property worth just under 4,000 Zlotys, which is the equivalent of something like £650. Of course, it is by no means a trivial offence, but it is not the most serious of offending.
3. He was subjected, as is usual, it seems, in Poland, to a suspended sentence. That was activated because, according to the EAW, he had committed a further offence. This is one of the curious features of this case because it has nowhere been indicated either what that offence was in any detail or what sentence was imposed for it.

It was said in the EAW that the sentence of 18 months was conditionally suspended for a probation period of five years. Then this:

"The District Court in Sosnowiec under article 75 section 1 of the penal code ordered the execution of the said sentence because [the Appellant] during the probation period committed a similar intentional offence for which he was sentenced to the penalty of deprivation of liberty/judicial decision of the District Court in Sosnowiec on the 11th December 2006. The requested person did not appear to serve the sentence and consequently, the District Court in Sosnowiec ordered a search for him by wanted notice. It has been established that the requested person is staying in the territory of Great Britain."

4. It is clear from the warrant itself that what led to the bringing into effect of the original suspended sentence to be imposed, in fact, in 2004 for the offences committed in 2001 was the commission of a subsequent offence for which he had received the penalty of deprivation of liberty. What is exceedingly curious is that not only, as I said, do we have no details of that offence, but if he was sentenced to deprivation of liberty, it is extraordinary that it is not included in the EAW, which has only been executed in this country in 2014. We have no knowledge at all of what that subsequent offence was.
5. Since the hearing before the District Judge, further information has been obtained from the judicial authority. That clearly ought to have been obtained before the hearing. There were considerations as to whether it was admissible. Equally, there is some fresh evidence which has been put forward on behalf of the Appellant. Again, in relation to that, there were considerations as to its admissibility. But in the end, it has been accepted on each side that I can properly take account of the fresh evidence on each side.
6. It is not at all surprising that the Appellant is keen to rely on the fresh material produced by the judicial authority because in certain respects it runs against what is set out in the EAW. What is most important for the Appellant's case is that it states in terms that the Polish authorities established as long as ago as April 2007 that the Appellant was residing in this country.

What had been produced insofar as the Appellant is concerned are some Home Office documents which appear to confirm and indeed do confirm that he was certainly here in January 2007 and that he required confirmation, which was granted, that he had commenced work in this country in October 2006. That is before December 2006 when the custodial sentence for the subsequent offence was said to have been imposed.

7. I come to the fresh information from the judicial authority. It states that by a decision of the 11 December 2006, the court activated the custodial sentence in respect of the Appellant. He was then summoned to arrive at prison, but he did not, which is not surprising because, of course, by then he was out of the country.
8. What is said in the fresh information in relation to the subsequent offence is this in paragraph 11:

"By the judgment of the 29th March 2004, the court imposed a custodial sentence suspended for a probation period of five years. In the probation period, on 20th May 2005 he committed another offence against property for which he was validly sentenced (judgment of 20th March 2006). He grossly violated the suspension conditions by committing another offence in the probation period."

So we have a different date for the sentence for the subsequent offence, no information again as to the details of that offence and no information as to what the sentence imposed, it is now said, on 20 March 2006 was.

Then in paragraph 14, this is said:

"The Appellant was informed in writing. He personally collected the relevant instructions of the obligation to notify the agency conducting the proceedings of any change of address or place of stay lasting longer than seven days. He was also informed that in case he goes abroad, he was obliged to appoint a service agent in Poland and if he fails to do so, a writ sent to the last known address in Poland is deemed to have been served. He is under the obligation to notify the relevant agency of any change of address until the conclusion of the penal proceedings, i.e. until the end of probation period or until the penalty is executed in whole.

15. Given the fact that he was aware of the sentence imposed and the violation of the probation conditions and taking into consideration the fact that he went abroad, it must be stated that he can be regarded as a fugitive."

9. There is, by the additional information, added the assertion that he was in breach of the conditions by failing to notify of his going out of the country or change of address.
10. It seems clear that the EAW contained errors. That is not in itself fatal, but it is decidedly unfortunate. Those errors were not corrected, assuming the further information is indeed reliable, before the District Judge.

One of the issues is whether she was correct in regarding the Appellant as a fugitive. When she reached her decision, she was faced with two decisions of this court which were at odds, the two cases being Pinto v Judicial Authority of Portugal [2014] EWHC 1243 (Admin) and Salbut v Circuit Court Gliwice [2014] EWHC 4275. That issue has since been dealt with in favour of the case of Salbut by a Divisional Court in the case of Wisniewski v Poland [2016] 1 WLR 3750. The effect is that if an individual who is the subject of a suspended sentence chooses to leave the country in breach of obligations to notify, that means that he can properly be regarded as a fugitive.

11. When one looks at the decision of the District Judge, she refers to the evidence that was before her from the Appellant. This is in paragraph 8 of her decision. She says this:

"Mr Dziubek adopted his proofs of evidence dated 3 September and 1 October 2015. He came to the UK either on 18 October 2006 or 23 October 2006. He said he was under a suspended sentence for five years and one of the conditions was to keep in touch with his probation officer. He accepted that by coming to the UK he failed to comply with this condition, saying his probation officer did not contact him. He did not seek permission to leave Poland because he had no restriction on his movements. He was unaware that the sentence had been activated in 2006 until he was arrested on the EAW."

12. It was that evidence, namely that he accepted that he failed to comply with the conditions and had left without giving the necessary information, that led the District Judge to decide that he was a fugitive. That, of course, is not what was relied on in the EAW as the basis for the imposition of the sentence. On the other hand, it is, as it seems to me, perfectly proper for the District Judge to have relied on that evidence and to have taken the view that based on that evidence, which is now confirmed in the further information obtained from the judicial authority, that the Appellant could properly be regarded as a fugitive.
13. It follows that, as it seems to me, she was entitled in the circumstances to take that the view that he was not able to take advantage of section 14 of the Act on the basis, as I say, that he was properly regarded as a fugitive, but that is not the end of the story because there has been clearly a very considerable delay.
14. If one goes back to the further information, one sees this in paragraph 9:

"On 28th February 2007 the court ordered that the Appellant be brought to the penitentiary by the police. It appeared to be ineffective. On the 26th April 2007 the court ordered the search for the above named be conducted in the form of a wanted warrant. It was established that he was residing in Great Britain, but our domestic search continued. The police inspected the places in which he could have been staying and checked whether he used public healthcare services and social benefits."

With great respect to the Polish judicial authority, it does seem a little pointless to carry on investigating whether he was still staying in Poland and checking whether he was using any Polish systems when it was known that he was not residing in Poland but indeed was residing in Great Britain.

However, this led to the EAW being issued in 2008. It was not until 2014 that it was executed. There is no evidence of who was to blame for that; whether it was in any way the polish judicial authority or whether it was the NCA in this country. There was no evidence either before the District Judge nor is there any before me that can explain that delay.

15. There is an added factor. It is now the Appellant's case, and he has raised it in his subsequent statement, that he was required to and did pay money in order to reduce the amount of the debt, as it were, that he had in relation to the obtaining by deception. It is his case apparently that there is no more than about £100 worth outstanding of that. That has not been checked and there is no information one way or the other as to whether that is accepted, but obviously it is a material consideration if extradition is appropriate.
16. The fact that he is properly regarded as a fugitive weakens his Article 8 claim. He has not behaved himself since he has been in this country. He has committed in particular a serious offence of assault occasioning actual bodily harm for which he received a sentence of 20 weeks' imprisonment. However, he has been working and he has a partner here who was thought to be suffering from cancer. Fortunately, it has been discovered that it was a cervical cyst rather than cancer. Nonetheless, he has been here now for some 10 and a half years. He has the relationship. Obviously, there will be a damaging effect upon his partner who relies upon him in order to support her.
17. There is no question but that if one looked at the Article 8 claim without any question of delay, it is a claim that would not prevail. The District Judge properly went through the exercise in accordance with the case of Celinski in deciding what was in favour of and what was against extradition.
18. It seems to me that the delay in this case, unexplained, is such as provides a very weighty advantage to the Appellant. This was an offence, as I have said, by no means trivial, but not the most serious, committed now some 16 years ago.
19. It seems to me in all the circumstances, particularly having regard to the unexplained and excessive delay of six years in taking any steps to activate the warrant, that this is a case in which the Article 8 claim does prevail. It would, in the circumstances, not be proportionate for the Appellant to be extradited to serve the 18 months which is outstanding.

Accordingly, this appeal is allowed.

MS WESTCOTT: Your Lordship, if it would assist, we can draft the order, which would include the usual detailed assessment of the publicly funded party's costs.

MR JUSTICE COLLINS: Yes, of course. Thank you.