Circuit Court in Nowy Sacz (Poland) v Wilk
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 14 March 2019 |
| Neutral Citation | [2019] EWHC 854 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/2924/2018 |
| Date | 14 March 2019 |
[2019] EWHC 854 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Elisabeth Laing
No. CO/2924/2018
Mr S. Allen (instructed by the Crown Prosecution Service) appeared on behalf of the Applicant.
Mr T. Mak (instructed by Lloyds PR) appeared on behalf of the Respondent.
This is an appeal under s.28 of the Extradition Act 2003 (“the 2003 Act”) against a decision of District Judge Tempia (“the DJ”) made on 17 July 2018 to order the respondent's discharge. Permission to appeal was granted on the papers by Sir Stephen Silber on 20 November 2018. The appellant judicial authority has been represented by Mr Allen and the respondent requested person by Mr Mak. I am grateful to both counsel for their very helpful oral and written submissions.
The respondent's extradition was sought on an accusation European Arrest Warrant (“EAW”) issued on 15 February 2018 and certified by the National Crime Agency on 23 April 2018. The respondent's extradition is sought to face allegations of 50 offences of fraud committed between 13 September 2007 and 31 December 2008. The respondent is said to have misled the complainant about his intention to pay invoices. The total value of the offences is about £20,000. The maximum sentence for the offences is 12 years' imprisonment.
In further information dated 15 June 2018, the judicial authority said that the respondent had not been arrested or questioned about the offences. A summons had been left at his address on 10 November 2008 and had been collected by his mother. It seems that his case is that this was never drawn to his attention by her. I will start with the EAW. Box F3 of the EAW says:
“According to the information obtained from the Polish police dated 16 February 2016, 26 August 2016, 4 October 2016 and 9 November 2017, the above listed person is probably staying in the territory of the United Kingdom in Grantham where his minor daughter attends [and then the address of her school is given].”
The further information dated 15 June 2018 sets out under heading “vi” the detailed account of various decisions and steps taken and made by the judicial authority. Under heading “vii” it says this:
“The period of time from the date the offences in question were committed to the date when the EAW was made results from the fact that the [the requested person] failed to appear voluntarily after questioning. Later, it was impossible to find out his whereabouts for the next several years. He was evading law enforcement agencies and was not staying at his residence address (see the response below in item ‘re viii’.) Therefore, he was circulated as wanted, the fact which was described in the EAW in Part ‘F’.
A judicial authority resorts to an instrument such as search under a European Arrest Warrant only if after certain conditions have been fulfilled, mainly when, on the basis of the tools available to law enforcement agencies, it is impossible to effectively arrest and question an accused person. Moreover, when it is found out that the accused person is staying in the territory of one of the European Union member states, it is only then that the court considers a possibility to conduct search for the accused person under a European Arrest Warrant.”
The heading “Re vi” records that on 24 February 2015 an application had been sent to the Embassy of the Republic of Poland and Oslo for granting legal assistance in a criminal matter. As Mr Allen points out, Norway is not a country in respect of which an EAW can be issued.
The ground of appeal
The appellant argues that the DJ was wrong to decide that the respondent's extradition was a disproportionate interference with the respondent's rights protected by Art.8 of the European Convention on Human Rights (“the ECHR”).
The law
The authorities on Art.8 are well known. They include Norris v Government of the USA (No.2) [2010] UKSC 9; [2010] 2 AC 487; H(H) v Deputy Public Prosecutor, Genoa [2012] UKSC 25; [2013] 1 AC 338 and Celinski v Polish Judicial Authority [2015] EWHC 1274 (Admin); [2016] 1 WLR 551.
The rights at issue in this case are the Art.8 rights of the requested person and his family. Those are rights to the respect for their private and family lives. Article 8.2 requires that there be no interference with the exercise of those rights by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The leading authorities show that the United Kingdom's interest in honouring its extradition obligations is one of the public interests on which a public authority may rely to justify an interference with Art.8 rights: see for example para.8 of H(H) in the judgment of Baroness Hale.
“Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”
Mr Mak submits that that proposition is a conclusion, first, and, second, it does not set out the only, but the likely, outcome from the proportionality balance between Art.8 rights and the public interest in extradition. He submits that it is wrong to require a decision-maker to look for exceptional circumstances in an Art.8 case. What is required rather is a balance between the Art.8 rights of the requested person and of his family, where relevant, and the public interest in extradition. If a decision maker is required to look for exceptional circumstances, that is to do things the wrong way round. I accept that submission about the Art.8 balance and about para.8 of the judgment of Baroness Hale in H(H).
It is also convenient here to refer to the relevance of delay to the Art.8 balance. Again in para.8 of her judgment Baroness Hale said:
“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.”
In para.46 she considered the overall length of the delay in one of the appeals. She said this:
“The delay in this case has been considerable. There was some delay between the offences themselves and the bringing of the Polish prosecutions; there was further delay between the appellant's failure to attend court in Poland and the issue of the domestic arrest warrants; even further delay between the issue of the domestic arrest warrants and the requests for the EAWs; and again between the issue of the EAWs and the appellant's arrest in March 2010. While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay is 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.”
Mr Mak submits, and I accept, that this passage makes it clear that in order for delay to be relevant to the Art.8 balance it is not required that the delay be culpable delay. However, I also accept Mr Allen's submission that whether or not the delay is culpable and whether or not the delay occurs in a situation where the judicial authority knows where the requested person is is relevant to the weight to be given to delay in an Art.8 case.
Mr Mak also referred to the decision in Oreszczynsi v Krakow District Court [2014] EWHC 4346 (Admin) and the analogy that was drawn in that case by Blake J with the relevance of delay in an Art.8 immigration case drawing on the judgment of Lord Bingham in EB Kosovo v Secretary of State for the Home Department [2008] UKHL 41.
Mr Allen submits that the authorities support five propositions. First, in conducting the balancing exercise which is required, it is important for the DJ to draw up a balance sheet; see para.15 to 17 of Celinski. Second, 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 and also in seeing that those who are accused of crimes should be extradited; see for example H(H) at para.8.
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 para.11 of H(H), and, echoing the point made by Mr Mak, delays since the crimes were committed may diminish the weight to be attached to the public interest in enforcing extradition arrangements and increase...
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