JK v District Court of Lublin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles,Lord Justice Singh |
| Judgment Date | 19 January 2018 |
| Neutral Citation | [2018] EWHC 197 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3456/2017 |
| Date | 19 January 2018 |
[2018] EWHC 197 (Admin)
Lord Justice Singh
and
Mr Justice Julian Knowles
CO/3456/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
APPEARANCES
Ms M Westcott (instructed by Dalton Holmes Gray) appeared on behalf of the Appellant.
Ms A Bostock (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent.
Introduction
This is an appeal under s.26 of the Extradition Act 2003 (“the Act”) against the decision of District Judge Rose dated 20 th July 2017 by which the appellant's extradition was ordered to Poland pursuant to a European Arrest Warrant (“EAW”). There is also before the court an application made on behalf of the appellant to adduce fresh evidence.
This court has made an anonymity order so as to protect the identity of three young children, one of whom has only just turned three and has serious health issues. I will therefore refer to the appellant as “JK”, his wife as “MK” and their children as “M”, “A” and “P”.
We have had the advantage of detailed written submissions and also oral submissions from Ms Mary Westcott on behalf of the appellant and from Ms Amanda Bostock on behalf of the respondent. We are grateful to them both.
Factual background
The appellant came to the United Kingdom in October 2012 with his wife. She returned to Poland to be with her children (the appellant's daughter and step-daughter) from February to June 2013. The appellant himself returned to Poland in June 2013 for his step-daughter's first communion in Poland. The whole family then came back to the UK in June 2013. Another child, P, was born in the UK in January 2015 and is now aged three.
The present EAW is a conviction warrant. It relates to one offence that was committed on 12 th January 2010 in Leczna, Poland. The appellant forged an employment certificate for a man called Marek Lipiec. That certificate enabled Lipiec to “conclude the cash credit contract” that was signed on the same day and to “swindle money in the amount of 18,966 PLN” to the detriment of a bank. That has been calculated to be the equivalent of £3,785.
For present purposes, the relevant EAW was issued in the District Court in Lublin, Poland on 31 st March 2017. It was certified by the National Crime Agency on 6 th April 2017. It is a conviction warrant that is based on the judgment of the Provisional Court of Lublin-Wschod on 4 th November 2015. The appellant was given a one-year sentence of imprisonment. The file reference is III K1119/12. It is common ground that the conduct occurred in a category 1 territory and that the offence is an extradition offence within the meaning of s.65(5) of the Act.
The factual position is complicated by the fact that there were two other sets of proceedings in Poland which form part of the background. One concerned another conviction against this appellant on 6 th September 2012, when a sentence of two years was imposed and suspended for five years. There were conditions attached to that suspended sentence which the appellant has not always complied with. The reference number for that case was III K733/12. There was at one time an EAW which covered both that conviction and the present matter.
The other matter was a prosecution of a man called Marcin Herok, in which this appellant was to be a prosecution witness because the charge concerned threats which had been made against him and his family. That case had the reference number III K746/11.
While he was still in Poland, the appellant was interviewed as a suspect in relation to the present matter on 23 rd August 2012. There is before this court a suspect interview report of that date which notes that the suspect said that he understood the allegations which had been read out to him on that day and that he confessed to committing the alleged offences. However, the note in the report goes on to state that he said that “the money from the loan was divided among Marek Lipiec, Robert Lipiec and Marcin Herok. I signed the certificate because I was scared of them”. Although, therefore, the appellant appeared to admit the offence, he also raised an issue which might have provided a defence, or at least mitigation, because he said that he had been threatened and he was scared.
The appellant was first arrested on the original EAW on 9 th January 2017. That warrant was discharged on 6 th April, and he then appeared in court on the new EAW which covers only the matter with which we are now concerned. He was granted conditional bail. Further information was provided by the respondent authorities in documents dated 26 th January 2017 and 20 th March 2017.
The hearing before the district judge took place at Westminster Magistrates' Court on 15 th June 2017. Judgment was reserved. There were three grounds raised in opposition to extradition: (1) under s.14 of the Act, that extradition should be barred because it would be oppressive by reason of the passage of time; (2) under s.20 of the Act that the appellant did not “deliberately absent himself from his trial,” and would not be entitled to a retrial. It is common ground that he would not indeed be entitled to a retrial; (3) under s.21, that extradition would not be compatible with his right to respect for private and family life under Art.8 of the Convention rights as set out in sch.1 to the Human Rights Act 1998 (“ HRA”).
Material legislation
Sections 14, 20 and 21 of the Act are relevant to the substantive issues in this case. Section 14 provides that:
“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
[…]
(b) become unlawfully at large (where he is alleged to have been convicted of it).”
Section 20 provides, so far as material:
“(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
[…]
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.”
I should also note ss.(5) and (6) if the judge decides that question in the negative, because he must then decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. If the judge decides that question in the affirmative, he must proceed under s.21 again.
Section 21, so far as material, provides:
“(1) If the judge is required to proceed under this section (by virtue of section 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the [HRA].”
This appeal, as I have mentioned, arises under s.26. It is unnecessary to set out the terms of that section, which are well known to the parties, but I would observe that under ss.(3) an appeal under s.26 may be brought on both a question of law and a question of fact.
Section 27 governs the court's powers on an appeal of that type and is also relevant to the application to adduce fresh evidence. Again, it is very familiar to the parties and need not be set out in detail here.
The judgment of the district judge
The district judge heard evidence from both the appellant and his wife. She had their statements before her. She also had a letter from the appellant's lawyer in Poland who had produced a number of documents from the court file there.
After setting out the factual background, the district judge noted that the appellant has been in employment in the UK and is currently self-employed. She noted that the two girls are at school in this country. It is unnecessary to set out the details of what is said at para.11 relating to the family's circumstances, including various medical problems; they are familiar to the parties. The appellant's mother is still living in the family home in Poland. His wife's parents are also still there. Sadly, the appellant's father died in October 2016.
The district judge dealt with the relevant proceedings at para.14 of her judgment under the reference number 1119/12. She also dealt with the suspended sentence proceedings (reference 733/12) at para.15, and his participation in proceedings as a witness (reference 746/11) at paras.16 to 18. The district judge outlined the suggested bars to extradition from para. of her judgment. She considered first the passage of time in s.14 of the Act (see paras.20 to 25). She concluded that the appellant is a “fugitive” and was thus not able to rely upon this bar “save in the most exceptional circumstances” by reference to the well-known decision in Gomes v Government of Trinidad and Tobago [2009] UKHL 21 (see para.22 of the district judge's...
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