Debiec v District Court of Piotrkow Trybunalski (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 12 October 2017 |
| Neutral Citation | [2017] EWHC 2653 (Admin) |
| Date | 12 October 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3489/2016 |
[2017] EWHC 2653 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Julian Knowles
CO/3489/2016
APPEARANCES
Ms S Townshend (instructed by Wainwright and Cummins) appeared on behalf of the Appellant.
Ms F Iveson (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Defendant.
This is an appeal with the leave of Langstaff J. against the decision of District Judge Bayne dated 5 th July 2016 in which she ordered the Appellant's extradition to Poland. The principal ground of appeal that is pursued is that the judge was wrong to hold that extradition would not be disproportionate and would not violate the Appellant's rights under Article 8 of the European Convention on Human Rights (“the ECHR”). There was another ground of appeal for which leave was given by Green J. on 2 nd May 2017 concerning specialty. However, that has fallen by the wayside as a consequence of the decision of this court in Kortas v The Regional Court in Bydgoszcz [2017] EWHC 356 (Admin) and so I say no more about it.
Miss Townshend on behalf of the Appellant seeks leave to amend the grounds of appeal to add a further ground of appeal and for permission to appeal, that ground of appeal being that extradition is barred by s 25 of the Extradition Act 2003 (“the EA 2003”) because of medical evidence received yesterday from the Appellant's treating psychiatrist that his mental state is presently such that he is at high risk of suicide, and special arrangements for his transport to Poland will need to be made in the event that the appeal is dismissed. I give leave to amend and I grant permission to appeal. I am grateful to both counsel for their helpful written and oral submissions.
The offences for which extradition is sought
The Appellant's return is sought as a convicted person in respect of two European Arrest Warrants. The first European Arrest Warrant (“EAW 1”) was issued on 26 th May 2015 and certified by the National Crime Agency on 23 rd September 2015. This is a conviction European Arrest Warrant which relates to (a) case IIK383/04, an aggregate judgment for drugs offences in 2002 involving amphetamine, cannabis and ecstasy for which the Appellant was sentenced to two years and 10 months' imprisonment, and (b) a case IIK1002/03 involving offences of fraud in 2003 and 2003 for which he was sentenced to two years' imprisonment suspended conditionally for five years. That suspended sentence was activated when the Appellant failed to comply with the relevant conditions. In relation to both cases he is a fugitive having been present in case III K1002/03 and absent for the other case, was notified of the date and time of his trial.
The second EAW, EAW 2 was issued on 19 th October 2015 and certified by the National Crime Agency on 8 th December 2015. It is also a conviction warrant, this time relating to the supply of not less than 120g of amphetamine between July 2003 and September 2003. He was sentenced to 12 months' imprisonment for that offence. Case IIK383/04 involves two sub-cases which were aggregated together. One of these sub-cases IIK422/02 involved 2 counts: the supply of amphetamines and cannabis in one count, and the supply of amphetamines in another count. However, in respect of both offences the warrant states that “at the time of the commission of the act charged he was incapable of recognising its significance and of controlling his conduct because of his mental disorders.” Consequently, the district judge concluded that in respect of this alleged conduct it did not amount to an extradition offence as required by s10 of the EA 2003 because the Appellant lacked the necessary mens rea and so the requirement for dual criminality was not satisfied. Accordingly, she discharged the Appellant in respect of these offences but ordered extradition in relation to the other offences.
The arguments before the district judge on Article 8
As well as the s 10 argument which I have mentioned, the Appellant resisted extradition before the district judge on the grounds that it would violate his rights under Article 8 of the ECHR and thus that extradition was barred by s 21 of the EA 2003. The evidence before the district judge was as follows. The court had before it information in the form of a request for further information which revealed that the reason for the delay between the dates of the offences and the issuing of the European Arrest Warrants is that the judicial authorities were unaware until 2014 or thereabouts that the Appellant was living in the UK. It also confirmed that he left the jurisdiction without the permission of the court and that he therefore was a fugitive.
The defendant, now the Appellant, gave evidence before the judge and he adopted his proof of evidence. He accepted that he was present when he was sentenced to two years' imprisonment in February 2004 but he said his sentence was suspended because the court was satisfied he was attempting to deal with his drug addiction which he then had. He also accepted that he pleaded guilty to the offence in the second European Arrest Warrant because he was told he would receive a lesser sentence if he did so. He maintained that he complied with the conditions attached to the suspended sentence by addressing his drug addiction and maintaining contact with his probation officer. He said in evidence that when he was sentenced to immediate custody in respect of the offence in the EAW 2 he “panicked” because he knew he would be placed in an environment where he might relapse into drugs, and so it was, he said, that he decided to leave Poland in November of 2004.
He said he was not present when the two years five months' sentence was imposed in December 2004 but he did know about the proceedings. He told the judge that he had worked ever since he arrived in the United Kingdom. He told her that he had lived openly in this country, and I have seen documents confirming that he is employed as a concierge by Harrods Estates and I have also seen evidence of National Insurance contributions and the like and other documents that show that he was living openly here in the United Kingdom. And, he said, and this is a fact, he has had no convictions in the years since he has been in the United Kingdom. He also told the judge that he had remained drug free since leaving Poland. He was joined by his partner in 2005 and both of them have lived together ever since, and she works as well.
The judge considered the Article 8 issue at para 38 and following in her judgment. Criticism is made in the Appellant's Skeleton Argument that the judge did not adopt the Celinski checklist approach by listing all the factors in favour of extradition and then all the factors again against, and then making a decision ( Polish Judicial Authorities v. Celinski [2016] 1 WLR 551). I do not accept that that criticism is entirely fair. The judge did first identify the relevant factors in favour of extradition and those against and she reached a reasoned conclusion and it is plain why she reached the conclusion that she did. In favour of extradition she noted that the court had to weigh in the balance the rights of the defendant under Article 8 and also the substantial public interest that exists in a lawful extradition process. She noted that it had been held in the relevant cases – including those which I will mention shortly – that it is of great importance that the United Kingdom honours its treaty obligations, and that those seeking to escape punishment for criminal behaviour in the jurisdiction of other foreign states do not find an unwarranted safe haven in the United Kingdom. I would also add there is particular resonance to that public policy consideration in relation to the EU Framework Decision which established the European arrest warrant scheme of surrender within the EU. The Framework Decision is not a treaty, rather, it is a piece of EU legislation, but it arises out of the fact that there is free movement of persons within the EU, and as a quid pro quo for that right there has to be a speedy and simple mechanism to ensure that criminals or suspected criminals in one EU member state are swiftly and easily returned to another member state for trial or imprisonment. The EAW Framework Decision was drafted and implemented in order to facilitate that very desirable public policy goal which this court needs to have well in in mind in its approach to Article 8.
The judge recognised that each case has to be considered on a fact specific basis and that there have to be “strong counterbalancing factors” before extradition can be considered to be disproportionate. She noted that the offences in question in this case were quite old, being committed between 1999 and September 2003. She also noted that there was no record of any criminal offending on the part of the defendant in Poland or in the United Kingdom...
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