District Court in Koszalin, Poland v Szpiec
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice William Davis |
| Judgment Date | 07 June 2018 |
| Neutral Citation | [2018] EWHC 1599 (Admin) |
| Docket Number | CO/5447/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 June 2018 |
[2018] EWHC 1599 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Singh
Mr Justice William Davis
CO/5447/2017
Ms H Hinton (instructed by the Crown Prosecution Service) appeared on behalf of the Appellant.
Mr G Hepburne-Scott (instructed by Birch & Co) appeared on behalf of the Respondent.
Introduction
This is an appeal under the Extradition Act 2003 (“the Act”). Permission to appeal was granted by Sir Stephen Silber on 19 February 2018. The appeal is against the decision of District Judge Inyundo on 16 November 2017 to discharge the respondent from extradition pursuant to a conviction European Arrest Warrant (“EAW”) issued by the District Court in Koszalin, Poland on 10 October 2016 which was certified by the National Crime Agency (“NCA”) on 13 October 2016.
Background
The EAW relates to two convictions in Poland. Conviction one dates from 9 October 2001. The respondent was sentenced in his presence to 8 months' imprisonment for an offence of joint enterprise assault committed on 4 March 2001. The assault is said to have caused the victim bruising and a cut lip. Further information from the requesting state dated 16 October 2017 states that this sentence was initially suspended but it was activated on 30 November 2004 because the respondent had committed a similar offence during the probation period. The respondent challenged this decision but having exhausted all avenues of challenge in 2005, he surrendered to serve his sentence on 12 January 2006. He was conditionally released on 6 September 2006, having served all but six days of that sentence. During the period of conditional release, he committed further offences, failed to surrender to prison and left his place of residence without notifying the authorities. Accordingly, on 20 February 2009, the remaining six days of the sentence were activated and remain to be served.
Conviction two dates from 17 June 2008. On that date the respondent was sentenced in his presence to 1 year, 4 months' immediate custody for four offences: (1) mental and physical harassment of the respondent's former partner between December 2006 and December 2007. This involved assaulting her on the night of 30 June and 1 July 2007 by hitting her with a wooden peg, causing injuries in the temple area, multiple bruising and skin abrasions of the upper limbs, bruises in the area of the right shoulder blade, a wide haematoma and abrasion of the skin. The respondent also assaulted her again between 7 and 9 July 2007 causing bruising. (2) Threatening to cause his partner “permanent disability” between 13 December 2007 and 8 January 2008. (3) Kicking and hitting his partner's dog on the night of 30 June and 1 July 2007 causing a cut to its head. (4) Kicking the dog on 8 January 2008, causing multiple bruises and significant pain when touching the surface of the entire body.
The further information received from the requesting state says that the respondent failed to surrender to prison on 22 December 2008 to serve his sentence for these offences. He had acknowledged receipt of the summons by his signature but he was not found at his address despite being under conditions in both sets of proceedings to notify the court of any change of his address. Accordingly, the respondent has been unlawfully at large in respect of the first conviction since 20 February 2009, when his sentence was activated. He has been unlawfully at large in respect of the second conviction since his failure to surrender to custody on 22 December 2008.
The further information also states that an EAW was issued in respect of both convictions on 8 December 2009. It was subsequently reissued on 10 October 2016, after the Polish Code of Criminal Procedure was amended. However, no explanation has been given of the reason for that delay since 2009. This was something which clearly concerned the district judge.
The judgment of the district judge
The district judge heard evidence from the respondent. He also took into account the proof of evidence from the respondent, to which he made reference at para.21 of his judgment. At para.20 the district judge identified the following issue as being the sole issue before him: whether there would be a breach of s.21 of the Act because extradition would lead to a violation of the rights set out in Art.8 of the European Convention on Human Rights. So far as relevant to the present case, the only right in Art.8 which is pertinent is the right to respect for private life. There is no question of the right to respect for family life, for example, arising in this case, since the respondent has no dependants or other family members who could be relevant for the purpose of that right.
From para.29 to para.40 of his judgment the district judge set out the reasons for his decision. He said at para.29 that the decision really revolved around the second conviction because if all that had been involved was the first conviction, it was highly unlikely that that extradition would have been sought or granted, not least because there would only have been 6 days of the sentence to serve. However, as the district judge acknowledged, the fact remained that the requested person had avoided approximately 16 months of immediate custody.
In para.30 of his judgment the district judge was satisfied that the respondent is a “fugitive” from justice. Indeed, he had not sought to argue otherwise. That remains common ground in this court. The district judge said at para.31 that the judicial authority was aware that the respondent had left Poland for the UK by 13 January 2009, which was almost 9 years earlier.
At para.33 the district judge said that he had regard to the principles in the well-known decisions of the Supreme Court in Norris [2010] UKSC 9, [2010] 2 AC 487, and HH [2012] UKSC 25, [2013] 1 AC 338. He also had regard to the decision of this court in Celinski [2015] EWHC 1274 (Admin). He proceeded to apply the “balance sheet” approach which was recommended by the then Lord Chief Justice in Celinski. He therefore set out the factors favouring extradition at paras.35 to 38 and then the factors against extradition at paras.39 to 40.
The district judge was well aware, as those parts of his judgment demonstrate, that there is a public interest in ensuring that extradition arrangements are honoured. This is a very high interest and the public interest is strong in discouraging persons seeing the UK as willing to accept fugitives from justice. He accepted that the initial EAW request was issued relatively promptly. He also found that the conduct underlying these convictions is not trivial. As he rightly said, “Domestic violence is abhorrent.” He noted that the conduct had led to a significant custodial sentence, none of which had been served. Finally, he acknowledged that it remains important to have regard to the decisions of the judicial authority of another European Union Member State in making a request, which should be afforded a proper degree of mutual confidence and respect.
That all said, he then set out the factors against extradition. He observed that the respondent has lived a “…useful and blameless life since arriving in the United Kingdom almost a decade ago.” He has been of good character in the UK and has been gainfully employed. He does have a network of friends. As the district judge put it, “He has clearly turned his life around.”
Paragraph 40 of the judgment needs to be set out in full because it lies at the heart of the present appeal.
“The real question about proportionality revolves around the many years that have passed since the offences were committed, the sentence(s) passed and the judicial authority becoming aware that the requested person was in the United Kingdom. The delay is obvious, highly relevant and unexplained. The FI [further information], which I specifically waited for before handing down the judgment having been told it would address this issue, is silent as to why nothing was done beyond issuing the EAW in January 2009 and the requested person's arrest on it — eight and a half years later. This, in light of the unchallenged fact that this requested person was living an open life here. Recent authority from the UKHC [by which I take the district judge to mean the High Court of England and Wales] has been less than sympathetic to such delays where no explanation is forthcoming. Whilst it is right that the requested person...
To continue reading
Request your trial