Daniel Zengota v The Circuit Court of Zielona Gora, Poland and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 10 February 2017 |
| Neutral Citation | [2017] EWHC 191 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 February 2017 |
| Docket Number | Case Numbers: CO/5520/2015 and CO/5764/2016 |
[2017] EWHC 191 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr. Justice Cranston
Case Numbers: CO/5520/2015 and CO/5764/2016
Mr Myles Grandison (instructed by McMillan Williams) for the Appellant
Ms Julia Farrant (instructed by Crown Prosecution Service) for the Respondents
Hearing date: 27 January 2017
Approved Judgment
Introduction
These are appeals with permission of Ouseley J against two orders of District Judge Goldspring for the appellant's extradition to Poland. The orders were made on 6 November 2015 and 9 November 2016. The order on 6 November 2015 was in relation to four European Arrest Warrants ("EAWs"); that of 9 November 2016 was in relation to two EAWs.
The appellant advances a single ground of appeal: the District Judge erred in finding that extradition in respect of each warrant was not barred under section 14 of the Extradition Act 2003 ("the 2003 Act") by reason of the passage of time making it oppressive. The appeals raise the issue of whether findings of oppression as a result of delay must be differentiated as regards each offence in a warrant or warrants.
The EAWs
There were six EAWs in all although one (called EAW 2 below) has since been withdrawn by order of this court dated 3 November 2016. Those warrants are as follows:
EAW 1 was issued by the Circuit Court of Zielona Gora on 22 September 2011 and certified on 25 November 2011. It is an accusation warrant based on a domestic warrant issued on 21 July 2010. The appellant's address is given at a number in Woodford Road, Watford. The appellant is wanted for trial for one offence of fraud in relation to the online sale of a tractor worth 4,000 zlotys (approximately £760) on 4 February 2009. The maximum sentence for the offence is 8 years' imprisonment.
EAW 2 was issued by the Regional Court in Szczecin on 8 March 2012 and certified on 27 November 2012. It was a conviction warrant in respect of a sentence of 10 months' imprisonment imposed on 11 August 2009 for one offence of fraud. A Polish address is given for the appellant. Box F of the EAW states that the sentence was initially suspended but the appellant did not comply with the condition that he repay the damage caused and comply with the requirements imposed by the probation officer. As a result his sentence was activated on an unspecified date.
EAW 3 was issued by the Regional Court in Szczecin on 18 June 2013 and certified on 26 July 2013. It is a conviction warrant in respect of one offence of attempted commercial burglary committed on 17 August 2008. The appellant was convicted of this offence in his presence on 5 March 2009 and a one year sentence was imposed. Box F of the EAW states that he was sentenced to a suspended sentence but this was activated on 3 February 2010 because he had failed to comply with the probation requirements. Thereafter the appellant failed to surrender to prison when required to do so. In the EAW the Polish authorities provide a possible address for the appellant, the same address as in EAW 1.
EAW 4 was issued by the Regional Court in Kielce on 23 October 2013 and certified on 29 April 2014. It is an accusation warrant in respect of nine offences of fraud committed in February and May 2009. The first allegation in the EAW is that the appellant obtained property worth 10,497.37 zlotys (approximately £2083) by fraud on 11 May 2009. The second allegation involves 8 individual offences of fraud committed between 5 February 2009 and 19 May 2009. It is said that the appellant misled individuals as to his intention to pay for services involving the transport of goods and caused losses amounting to 73,690.89 zlotys (approximately £14,650). The maximum sentence for the offence is 8 years' imprisonment.
Following the making of the first extradition order and the lodging of an appeal, the appellant was arrested on two further EAWs on 6 September 2016. As I have said the appellant's extradition was ordered pursuant to both on 9 November 2016.
EAW 5 was issued by the District Court in Krakow on 27 January 2015 and certified on 6 April 2016. It is an accusation warrant based on a domestic warrant issued on 17 September 2014. The appellant is sought to stand trial for an offence equivalent to fraud by false representation. It is said that he obtained 7,000 zlotys (£1380) by fraud on 23 March 2009. The maximum sentence for the offence is 8 years' imprisonment. The Watford address for the appellant is given.
EAW 6 was issued by the Regional Court in Szczecin on 11 July 2016 and certified on 8 August 2016. It is an accusation warrant in respect of 21 allegations of advance fee fraud in connection with the sale of agricultural machinery committed between February and June 2009. The total loss caused was 103,730 zlotys (approximately £20,000). The maximum sentence for the offence is 8 years' imprisonment.
The appellant was arrested on EAWs 1–4 on 4 May 2015. After his extradition was ordered on 6 November 2015, he lodged an appeal. The appeal was stayed behind a case which concerned another of the appellant's grounds of appeal until judgment on it was given by the Supreme Court. Once that occurred the stay was lifted and permission to appeal was considered and granted on 8 November 2016.
The appellant was arrested on EAWs 5 and 6 on 6 September 2016. After his extradition was ordered on those warrants he appealed on 9 November 2016. Permission to appeal was granted on 17 January 2017.
FIRST JUDGMENT OF THE DISTRICT JUDGE
In his judgment on EAWs 1–4, the District Judge referred to the legal principles relevant to a challenge pursuant to section 14 of the 2003 Act. He said:
"36. It is for the [Judicial Authority] to prove to the criminal standard that the [requested person] is a fugitive. He certainly left Poland in breach and aware of the fact but was not aware of the date fixed for any hearing to activate. I have been urged by the [Judicial Authority] to follow the authority in Salbut v. Poland, a case that I decided and was upheld. I agree that he was in breach of his obligations and is a fugitive under the same test as in Salbut and as a fugitive he cannot rely on this bar and I therefore reject it in relation to all EAWs."
The District Judge also considered the application of Article 8 of the European Convention on Human Rights ("ECHR" or "the Convention"). He said that "[t]here is no delay in extradition terms." He then said this about the evidence he had heard:
"44. The RP is not a sole or primary carer.
…
46. The [appellant's] Article 8 rights and those of his partner and clearly engaged. They are in a steady relationship and I have no doubt separation will cause them both emotional hardship and her some but limited financial hardship. She works and will be able to support herself in his absence. There is no evidence that he cares for her as she is fit and well. There may well be issues with visitation rights but they are a matter for the Polish courts/ authorities to administer, significantly there are no children."
SECOND JUDGMENT OF THE DISTRICT JUDGE
In his judgment in respect of EAWs 5 and 6, the District Judge firstly corrected what he had said in his previous judgment: the appellant was, in fact, of good character in the UK. He then recorded the appellant's evidence that he was only 18 or 19 at the time of the offending; that he came to the UK in summer 2009; and that he registered with the Home Office under the Accession State Worker Registration Scheme in 2010.
The District Judge recalled that the Judicial Authority did not ask that he make a finding that the appellant was a fugitive as regards the offending in these warrants, and the District Judge agreed that he was not. The District Judge reminded himself of the principles relevant to challenges under section 14 of the 2003 Act. He accepted that the evidence of the appellant and his partner given about their private and family life was truthful.
Having considered the matter, the District Judge said that he was not satisfied that extradition would be oppressive. His reasoning was as follows:
"70. The IJA have not provided an explanation as to the delay and that is exacerbated by the fact that they were aware of the situation from the first set of proceedings. The lack of an explanation does not necessarily mean it is culpable but in this case the combined fact of the lack of an explanation and the existence of the previous proceedings it seems to me to be capable of being culpable.
71. The delay is not the longest by extradition standards but the length is a factor that is capable of supporting a submission that it amounts to oppression, providing of course that there is a causal link between delay and oppression.
72. No false sense of security has been engendered, nor have his circumstances changed significantly. He has now met a partner and settled down but they do not have children together, otherwise there are no significant changes to his life.
73. He is not a fugitive in these proceedings BUT he is in relation to the first set of proceedings, he can of course rely on the bar, but this court cannot ignore his fugitive status in relation to the previous matters when considering the circumstances in which he left Poland, the assessment of oppression requires the court to look at the overall picture.
74. There will be an effect on his fiancée and mother but nothing before me justifies an assertion that hardship will be greater than that inevitably inherent in the act of extradition when facing what is...
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