Knaparek v District Court in Namestovo, Slovakia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 26 May 2022 |
| Neutral Citation | [2022] EWHC 1552 (Admin) |
| Docket Number | No. CO/2199/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1552 (Admin)
Mr Justice Cavanagh
No. CO/2199/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Ms R. Hill (instructed by HP Gower) appeared on behalf of the Appellant.
Ms C. Brown (instructed by CPS Extradition Unit) appeared on behalf of the Respondent.
This is the appellant's appeal against the decision of District Judge Magistrates' Court Leon dated 18 June 2021 to order the appellant's extradition to Slovakia pursuant to one conviction European Arrest Warrant (“EAW 2”) and one accusation European Arrest Warrant (“EAW 3”). By consent, a further European Arrest Warrant, (“EAW 1”) was discharged by the District Judge at the hearing.
Permission to appeal was refused on the papers by Jay J on 14 October 2021 and was granted by May J at a renewal hearing on 21 January 2022. The ground upon which permission to appeal has been granted is that the District Judge was wrong to order extradition in light of Article 8 on the European Convention on Human Rights and section 21/21A of the Extradition Act 2003. The appellant contends that extradition will breach the Article 8 family rights of himself and his partner and that, so far as the accusation warrant is concerned, extradition will be disproportionate for the purposes of section 21A.
The appellant has applied to file an addendum witness statement and a witness statement from his partner, both dated 20 October 2021. These statements deal with events that post-date the District Judge's ruling, namely that the appellant has re-established his relationship with his partner, and is living with her again.
The appellant has been represented by Ms Rebecca Hill of counsel, and the respondent by Ms Katherine Brown of counsel. I am grateful to both of them for their very helpful submissions, both written and oral.
The facts
EAW2
This is a conviction warrant seeking the appellant's return to serve a two-year sentence in respect of two felonies and one minor offence which are particularised as 20 burglary offences and a commercial burglary of a school, all committed on the same day, 14 March 2011. The appellant was aged 17 at the time at the time of these offences.
The following chronology was pieced together by the District Judge from the European Arrest Warrant and further information provided by the judicial review.
On 27 October 2011 shortly before he was tried for the offences covered by EAW 2, the appellant was convicted of a number of other offences and was sentenced to three and a half years' imprisonment. On 7 December 2011 the court imposed a further sentence of two years' imprisonment for the 21 incidents that comprised the three offences covered by EAW 2. The appellant was present at his trial. As the District Judge observed, the length of this sentence was probably connected with the fact that the appellant had previously been convicted of similar offences.
The appellant then served a sentence in custody for the sentences for which he had been convicted in October 2011. He was released from that sentence on 31 July 2014. On the same day, the sentence for the 21 offences in EAW2 was made final as a suspended sentence. Therefore the appellant was released immediately from custody on the same day. The conditions of the suspended sentence were that he had a probation period of five years including a three year period of probation suspension. Further conditions were imposed which were that he was to obtain employment and to report to the probation and mediation officer in accordance with the decision of the court. There is no evidence that he failed to comply with the terms of the supervision between 2014 and 2017.
In January 2017 the appellant met his probation officer who said that this would be their last meeting. He was made the subject of a continuing condition to seek employment. The appellant travelled to the UK the following month, in February 2017. At that time, the District Judge found that he believed that his supervision was complete.
The appellant did not inform probation that he was intending to leave the country. This was because he had been told that he no longer needed to see his probation officer. He had been told that he was no longer under any obligations to the authorities and he was free to leave the country.
On 6 July 2018 the suspended sentence was revoked and was converted into a custodial sentence. It is not entirely clear why the sentence was revoked in this way. As to that, the District Judge noted that the appellant's probation period was for a period of five years of which three of those were to be supervised. Thereafter he was still under an obligation to report to probation and to the mediation officer, which he did not do. The appellant said that he did not inform the probation officer that he intended to seek employment in the United Kingdom. This led the District Judge to infer that this may have been the reason for the suspended sentence to be activated — in other words, failure to report. On the other hand, Ms Hill posited that the suspended sentence order may have been activated because of the alleged offending in EAW 3. I am included to think that Ms Hill is probably right, but nothing ultimately rests on this.
On 12 February 2019 EAW 2 was issued and it was certified by the National Crime Agency on 2 February 2020. The appellant was arrested on EAW 2 at court on 4 March 2020, having previously been arrested on EAW 1. He has been on conditional bail since January 2020 when he first appeared in court. The District Judge was satisfied that the reason why it took time to arrest the appellant was due to both the police in Slovakia and in the United Kingdom not having information about his whereabouts.
EAW 3
This EAW seeks the surrender of the appellant in order to prosecute him for one offence of fraud by false representation through which he obtained a mobile phone contract using the identity of a different individual. This offence was allegedly committed on 10 April 2016 and caused monetary loss to the mobile phone company to the amount of €285. A maximum sentence of 2 years' imprisonment is set out in this EAW.
The criminal prosecution against the appellant for this offence commenced in November 2016 when he was still in Slovakia. This was seven months after the offence, but the prosecution was halted on 29 May 2017 as a result of the appellant's absence. By that stage, as I have said, the appellant had already left the United Kingdom in February 2017. It is right that in relation to this arrest warrant the appellant was not precluded from leaving Slovakia and nor was he obliged to provide his whereabouts the authorities.
On 17 June 2020 proceedings were reopened and on 14 September 2020, EAW 3 was issued. On 18 November 2020 it was certified by the National Crime Agency and the appellant was arrested at court on 19 November 2020.
In further information the judicial authority said that it had no information about whether the appellant had been arrested, bailed or notified of his prosecution for this offence. The appellant denies that he had any involvement in this offence.
Life in the UK
As I have said, the appellant came to the UK in February 2017. After his arrival he entered into a relationship with his partner, Nicola Marecakova. He gave evidence that he has a strong attachment to both of her daughters, Diana, now aged about 11, and Vanessa aged 6 or 7. The couple broke up in April 2020 and were still apart at the time of the hearing before District Judge Leon, although the appellant still had strong ties with Ms Marecakova and with her children. He still played an active role in their lives.
The District Judge found that the appellant was a single man living on his own. Although he provided some support to his ex-partner, she herself has a network of support consisting of a childminder, her sister and the father of her younger daughter Vanessa. Ms Marecakova is in employment and has the day-to-day care of her older daughter Diana. Her other daughter Vanessa lives with her biological father. Vanessa has contact with her mother every weekend. The appellant helps Ms Marecakova by taking her shopping, bringing Diana to school and taking Vanessa back to her father. The District Judge noted, as I have said, that Ms Marecakova is not without other assistance. The judge said that Vanessa's biological father has parental responsibility for his daughter and can be expected to take her to and from his mother's address instead of leaving it to the appellant. The appellant has worked solidly in the UK and has not been in any trouble with police.
The judgment of the District Judge
Fugitive status
The District Judge said that there was insufficient evidence to establish that the appellant was a fugitive in relation to EAW 2 and that...
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