Kruk v Judicial Authority of Poland
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 26 February 2020 |
| Neutral Citation | [2020] EWHC 620 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/904/2019 |
| Date | 26 February 2020 |
[2020] EWHC 620 (Admin)
Mrs Justice Steyn DBE
No. CO/904/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Ms S. Townsend (instructed by Macmillan Williams) appeared on behalf of the Applicant.
Mr D. Ball (instructed by Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent.
This is an appeal against the decision of District Judge Griffiths, made on 1 March 2019, to order the appellant's extradition to Poland. Permission to appeal was granted on the papers by Sir Wyn Williams on 8 August 2019. Poland is of course a Category 1 territory, and so Part 1 of the Extradition Act 2003 (“the 2003 Act”) applies. The appeal is brought pursuant to s.26 of the 2003 Act.
The basis of the application for the appellant's extradition is a conviction European Arrest Warrant (“the EAW”) issued on 31 July 2018 by the Regional Court of Lublin, Poland and certified by the National Crime Agency on 28 August 2018. It is based on an enforceable judgment of the District Court in Chelm dated 27 March 2014.
As the District Judge explained at para.6(d) of her judgment, the EAW relates to two offences as follows:
“a. Offence 1 — Burglary — Between 1 October 2009 and 30 November 2009 in Okuninka, Wlodawa commune, the RP and another person, acting in complicity and in conspiracy, burgled a holiday cottage and an outhouse, by forcing the entrance door and stealing two loudspeakers, two mountain bikes, two extension cables, a set of keys and 10 locks to total value of PLN 1133.10 (around £235);
b. Offence 2 — Burglary — Between 20 November 2009 to 30 November 2009, in Okuninka, the RP broke into a holiday cottage and an outhouse and stole and [sic] extension cable and two electric cables to a total value of PLN 60 (around £12);
Between 1 November 2009 and 30 November 2009, in Okuninka, the RP attempted to break into summer cottage. He got inside but did not steal anything; and
Between 1 February 2010 to 15 March 2010, in Wlodawa, the RP broke into a warehouse and stole pipe stops, three pairs of scissors for cheese from cheese pots and 8 tub covers with intent to appropriate them, to total value of PLN 2356 (around £488).”
The appellant was sentenced to two years' imprisonment. The sentence of two years was suspended for five years. It was suspended on the condition that the appellant paid compensation to three of the complainants and complied with the requirements of probation. He signed the document relating to these requirements on 29 April 2014. The appellant breached the terms of his suspended sentence; he did not pay the compensation or keep in touch with probation as required. Active attempts were made between January 2017 and March 2018 to search for the appellant, but they were unsuccessful. Ultimately, information came to light that the appellant might be staying in the UK and the EAW was issued on 31 July 2018. The EAW states that the entire sentence of two years' imprisonment remains to be served. However, the appellant was arrested pursuant to the EAW on 23 November 2018 when he handed himself in at Yeovil Police Station, and he has been in custody in the UK since then. Accordingly, he has served over 15 months of his two-year sentence.
Ms Townsend, counsel for the appellant, submits that the District Judge ought to have decided two questions before her differently and, had she done so, she would have been required to order the appellant's discharge, namely:
a) whether the mental health of the appellant is such that it would be unjust or oppressive to extradite him pursuant to s.25 of the 2003 Act; and
b) whether extradition was a proportionate interference with the appellant's private and family life pursuant to s.21 of the 2003 Act and Art.8 of the European Convention on Human Rights.
In oral submissions, both Ms Townsend and Mr Ball have addressed s.21/Art.8 first and I shall take the grounds in that order, too. Before I turn to consider the two grounds, I need to address an oral application to admit fresh evidence in the form of a brief witness statement of the appellant dated 12 February 2020. This is updating evidence in circumstances where the hearing before the District Judge took place almost a year ago, so I accept that it did not exist and could not with reasonable diligence have been obtained. But I also need to consider whether, if the evidence had been adduced, the result would have been different, resulting in the appellant's discharge.
The witness statement is unsigned. No written application to adduce fresh evidence has been made. The appellant states in the unsigned witness statement that he is currently taking medication for depression and that it helps with his sleep. At the time of the extradition hearing, the appellant had been taking medication to help with his sleep. The evidence does not indicate whether the medication now being taken is different to that which he was taking before, nor how long he has been taking it, or the dose. Overall, the evidence does not suggest that the appellant's mental health condition has worsened from the position described by the psychiatrist, Dr Forrester, in the evidence that was before District Judge Griffiths.
I consider that the test in Hungary v Fenyvesi [2009] EWHC 231 (Admin) is not met. I cannot put any weight on an unsigned witness statement and, even if it were signed, it does not take the case any further. Insofar as the appellant refers to the fact that he has been in custody for 15 months, that is of course something which I can take into account in any event.
Article 8
In Polish Judicial Authority v Celinski [2016] 1 WLR 551, Lord Thomas of Cwmgiedd CJ, in a judgment of the court, said at para.24:
“The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger PSC said, as set out above, that the appeal could be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”
The Lord Chief Justice had cited the following observations of Lord Neuberger at para.21 of Celinski:
“‘There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which he considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) view on which she has doubts, but on balance considers was wrong, (vi) a view which he considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).’”
I accept that this is the approach that I should take. The question is whether or not the District Judge made the wrong decision and, if not, whether the decision to extradite is now disproportionate having regard to the 15 months that the appellant has served in custody in the UK. First, the appellant contends that the District Judge erred in her assessment of the gravity of the offences. The District Judge said that the offences were “not insignificant”. Ms Townsend submits that, although not trivial, the Judge should have found that they were “not serious” and should have addressed them in more detail. There is nothing in this criticism. The District Judge set out the nature of the offending, as I have already outlined, including the nature of the properties burgled and the low value of the items stolen. A two-year sentence of imprisonment, initially suspended, was imposed for these burglary offences. The Judge made no error in describing the offences as “not insignificant”.
Secondly, the appellant contends that the Judge made a factual error in para.61(f) when she said that ‘all of the two-year sentence remains to be served’. Although it was accurate to say that that was what the EAW said, by the time of the hearing the appellant had served four months in custody. I accept that it would have been better if the judgment had recognised that a lesser term remained to be served, but at the time, when only four months of the two-year sentence had been served, this was not a particularly weighty factor.
The third point concerns the question of the impact of the additional time...
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