Leszek Robert Gomulka v Poland
| Jurisdiction | England & Wales |
| Judge | Fordham J |
| Judgment Date | 05 March 2024 |
| Neutral Citation | [2024] EWHC 460 (Admin) |
| Year | 2024 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2022-LON-003399 |
[2024] EWHC 460 (Admin)
Fordham J
Case No: AC-2022-LON-003399
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Toby Cadman (instructed by Taylor Rose Solicitors) for the Appellant
Georgia Beatty (instructed by CPS) for the Respondent
Hearing date: 21.2.24
Draft judgment: 26.2.24
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Fordham J Fordham J Introduction
The Appellant is aged 46 and is wanted for extradition to Poland. That is in conjunction with a conviction Extradition Arrest Warrant issued on 29 December 2016 and certified by the National Crime Agency (“NCA”), 5 1/2 years later, on 8 July 2022. His extradition was ordered by District Judge McGarva (“the Judge”) on 24 November 2022 after a hearing at which the Appellant gave oral evidence and was cross-examined. The index offending which is the subject of the December 2016 conviction Extradition Arrest Warrant is as follows. There are four offences of which the Appellant has been convicted in Poland. The first three are offences of using a forged document to obtain a loan: on 27 November 2003; on 9 December 2003; and on 22 December 2003. The fourth is an offence of forging a signature on a loan agreement on a date before 14 February 2002. Those frauds were all perpetrated by the Appellant on the same bank. Their aggregate value is an equivalent of £2,650.
At the hearing before the Judge, the Appellant was also wanted for extradition on two accusation Extradition Arrest Warrants: (i) the first, issued on 28 July 2009 and certified by the NCA on 4 February 2015; (ii) the second, issued on 26 January 2015 and certified by the NCA on 2 March 2015. The index offences in those two accusation Extradition Arrest Warrants were, respectively: (i) an offence of alleged handling of stolen property in September 2004; and (ii) an offence of alleged fraud in July 2003. The Respondent accepted before the Judge, and the Judge found, that the Appellant was not a fugitive in relation to those accusation matters. The Judge went on to conclude, pursuant to section 14(1)(a) of the Extradition Act 2003, that the Appellant's extradition on those accusation Extradition Arrest Warrants was “unjust”, and also “oppressive”, by reason of the passage of time. The Appellant was accordingly discharged on the accusation matters. There is no appeal by the Respondent against that discharge.
The Judge made a series of unassailable findings, based on the Further Information from the Respondent and the other evidence which was adduced. The Judge's factual findings – which there is no basis to disturb – included the following. The Appellant was convicted of the four frauds on 23 May 2005 in Poland. He had been arrested on 30 December 2004 and released on 11 January 2005, prior to his trial. He was sentenced on 31 May 2005 to a two-year custodial sentence which was suspended. He committed a further criminal offence during his suspended sentence. Its consequence was that the suspended sentence was activated on 14 November 2006 (meaning he would now need to serve the two-year prison term). There was a hearing relating to that activation on 14 February 2007, at which hearing the Appellant was present, and at which the activation was upheld. The Appellant subsequently made two applications in Poland to postpone his having to serve the two-year sentence. There were hearings in 2007, both of which were attended by the Appellant. Both applications were unsuccessful. It was later in 2007 that the Appellant came to the UK. That timing coincided with him reaching the end of the road in terms of legal routes to avoid serving the sentence. When he left, he was under an ongoing obligation to notify the Polish authorities of any change of address. He was aware of that obligation. But neither at that stage, nor subsequently, did he notify the Polish authorities of his whereabouts or address. He left with the intention of placing himself beyond the reach of the Polish justice system. The Judge was satisfied, to the criminal standard, that the Appellant came to the UK on 30 July 2007 as a fugitive, in relation to the fraud offences which are the subject of the conviction Extradition Arrest Warrant. Mr Cadman accepts, rightly, that there is no basis to overturn that finding. The Judge also recorded the evidence that the Appellant has moved within the UK every two years or so, taking up employment in different locations. The Judge made clear that he was not finding that these moves were themselves acts of deliberate evasion. The Judge found, on the evidence, that the Appellant was “very much working openly” in the UK.
Section 14, Fugitivity and “the Most Exceptional Circumstances”
The Appellant had raised, as a ground of resistance to extradition on the conviction Extradition Arrest Warrant, section 14(1)(b) of the 2003 Act. That provision bars an extradition which would be unjust or oppressive by reason of the passage of time. The parallel argument (under s.14(1)(a)) had succeeded in relation to the accusation Extradition Arrest Warrants. But so far as the conviction Extradition Arrest Warrant was concerned, the Judge found that his conclusion on fugitivity was fatal to the attempted reliance on s.14. He said the Appellant “cannot rely on the delay as there are no exceptional circumstances”. Mr Cadman now argues – for the first time in oral submissions – that this was wrong. He says that the extensive passage of time in this case itself constitutes “exceptional circumstances”. On that basis, he says, the s.14(1)(b) “oppression” protection remains open. I am unable to accept this submission.
In Kakis v Cyprus [1978] 1 WLR 779, Lord Diplock said this of the statutory bar (then in s.8(3) of the Fugitive Offenders Act 1967) that returning the individual would be unjust or oppressive by reason of the passage of time (at 782H-783B, emphasis added):
“Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them .
It is a very well established rule: see eg. De Zorzi v France [2019] EWHC 2062 (Admin) [2019] 1 WLR 6249 at §46ii. It was endorsed in Gomes v Trinidad and Tobago [2009] UKHL 21 [2009] 1 WLR 1038, as a “rule” to be strictly adhered to” (at §§29–30), which exists for “sound reasons” (at §27). The room for its disapplication is very narrow: we have the phrase “the most exceptional”. A possible candidate given by the House of Lords, to illustrate “the most exceptional circumstances”, was an accusation case where the requested person “had become unfit to plead notwithstanding his responsibility for the relevant lapse of time” (at §29). Mr Cadman was able to cite no authority or commentary, from the 46 years since Kakis, in support of the submission that a long passage of time could – in and of itself – constitute “the most exceptional circumstances”, to allow access to the injustice or oppression test. The essential function of the fugitivity rule in s.14 cases is to exclude access to that test, where the injustice or oppression is being said to be based on “the passage of time”. Unfitness to plead – the example given – is an extreme species of why extradition, to face a criminal trial, would be “unjust” or “oppressive”. I wonder whether, in practice, the availability of Articles 3 and 8 ECHR are likely to cover any scenario so extreme as to constitute “the most exceptional circumstances”, where there is injustice or oppression despite fugitivity, by reason of the passage of time. Be that as it may, the circumstances of the present case – including the passage of time – fall very far short of being capable of characterisation as “the most exceptional” circumstances. The Judge was plainly right.
Article 8 and Private Life
That brings me to Article 8. The question in the present case is this: whether extradition would be a proportionate interference with the Appellant's Article 8 right to respect for private life. Stating the question correctly is important. I have said “private life”; not “family life”. I have also said “the Appellant's” Article 8 right. As the Judge recorded, the Appellant does not have family in England. He has no dependants. He does have family in Poland. No innocent family members are impacted. Extradition would not be an “interference” with any identifiable third party's Article 8 rights. But extradition plainly would be an “interference” with the Appellant's private life. As the Judge recorded, as at November 2022 the Appellant had lived openly in the UK for 15 years since July 2007. He has a sustained record of employment here during that period. He has established ties to the UK, in terms of his established life here during that period, with community ties and friendships. The question is whether the interference would be proportionate....
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