Lysiak v District Court Torun Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom,Lord Justice Burnett |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] EWHC 3098 (Admin) |
| Docket Number | CO/2112/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 October 2015 |
[2015] EWHC 3098 (Admin)
Lord Justice Burnett
Mr Justice Hickinbottom
CO/2112/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Ms K O'Raghallaigh (instructed by Lansbury Worthington) appeared on behalf of the Appellant
Mr R Evans (instructed by the Crown Prosecution Service) appeared On behalf of the Respondent
(As approved)
On 5 May 2015, District Judge Goldspring ordered the appellant's extradition to Poland, pursuant to a conviction European Arrest Warrant issued by the District Court Torun, Poland, on 15 July 2014. The warrant was certified on 3 December 2014 and the appellant arrested on 3 February 2015. He has been on bail since then, subject to reporting conditions three times a week and a curfew that applies in the middle of the night.
This is his appeal, brought with permission, pursuant to section 26 of the Extradition Act 2003. There are two grounds of appeal:
First, that the appellant's extradition would violate his rights and those of his immediate family (as guaranteed by Article 8 of the European Convention on Human Rights).
Secondly, that his extradition would be oppressive for the purposes of section 14 of the 2003 Act. In respect of that second ground, which was not raised before the District Judge, we gave the appellant leave to amend his grounds.
Underlying both grounds is the reality that the criminal proceedings against him in Poland took nine years to come to trial and about a further two and a half years for the conviction to be confirmed in appeal proceedings. He prays in aid that long delay, for which there has been no suggestion that he was responsible.
The European Arrest Warrant relates to a conviction which occurred on an unspecified date at the first instance court in 2010. The appellant's appeal against conviction was dismissed on 14 September 2011, and the judgment became final on 18 November 2012. The period of offending was between June 2000 and February 2001. The offence was conspiracy to obtain satellite television dishes fraudulently. In sterling terms, the value was about £130,000. The appellant was sentenced to two years' imprisonment. In 2001, following his arrest, he served 6 months on remand. It follows that there is a period of 18 months' imprisonment due to be served subject, of course, to the application of appropriate Polish law as to early release.
The appellant's circumstances (which were accepted by the District Judge) are essentially these. He was 25 years old at the time of the offending. He took a full part in the criminal proceedings, including attending a large number of preliminary hearings.
In 2008, he left Poland to come to the United Kingdom. He did so with the permission of the Polish court. He was represented by Polish lawyers throughout the proceedings. We have been told that he returned to Poland in 2010 for his trial. By the time the appellant came to the United Kingdom he had married and had a young son who was nine years old at the time of the extradition hearing and is now ten years old. Additionally, the appellant and his wife have a daughter who was born in October last year.
The evidence accepted by the District Judge included that the appellant and his wife have no family in this country. The significance of that is simply that there would not be anybody readily available to assist the appellant's wife in looking after the children and, more generally, in assisting her should the appellant be extradited to Poland. The family is financially dependent upon him. The appellant has worked consistently in the United Kingdom as a painter and decorator. The appellant's wife has worked in the past as a shop assistant. However, the reality is that the age of their daughter makes any possibility of her working at present extremely unlikely.
There is no realistic prospect of the appellant's wife and children following him to Poland for the duration of any incarceration he suffers there. It follows that both emotionally and financially his extradition would cause significant problems.
Mr Hawkes, who appears on behalf of the appellant this morning, prays in aid the fact that were he to be extradited, the appellant would not be in England for the transition between primary and secondary education that his son will undergo next year. Furthermore, the age of his daughter is such that it is an important time for parental bonding.
The District Judge concluded that the appellant had been a fugitive since 14 November 2012, when he knew that he should return to Poland to serve his sentence. So much had been admitted by the appellant in the course of the extradition proceedings, and Mr Hawkes readily accepts that this morning.
He submits that whatever may have been the position after November 2012, the appellant was not a fugitive for any of the period between early 2001 and the confirmation of his conviction on appeal. The respondent it would not be appropriate to consider the appellant to be a fugitive up until that time,.
Section 14 of the 2003 Act provides:
"Passage of Time
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 —
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
Section 14 was not explicitly argued before the District Judge. He considered the question of delay in the context of Article 8 of the European Convention of Human Rights.
He directed himself in particular by reference to the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. At paragraph 8 of her judgment, Lady Hale identified a series of now well known factors which should weigh in any Article 8 consideration in an extradition case including:
"8(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life."
The public interest she was referring to was the:
"[…] constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences […]"
Additionally, "the UK should honour its treaty obligations."
The District Judge dealt with the question of delay in his written ruling in this way:
"As to delay, no explanation has been provided by either party regarding the need for 3 goes at the trial. Any explanation proffered by either party is speculation and I will ignore. What we do know is that the final judgment [is] given on 14 November 2012. It therefore follows that the EAW was issued a short time after and there is therefore no relevant delay for the purposes of looking at culpability. However, I accept that the age of both the offences and the requested person at the time is relevant to the Article 8 challenge."
Later in his written determination at paragraph 33, he added:
"Merely because it is unexplained does not make delay culpable: where delay is not culpable it weighs only slightly in the requested person's favour in the proportionality assessment."
Having then returned to the point that the appellant was a fugitive at the end of the period, the District Judge added:
" There cannot sensibly be said to be any culpable delay on the part of the Issuing Judicial Authority, such delay as there is, is insufficient to weigh in his favour in any balancing act […]"
It appears that the District Judge was focusing...
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