Marek Vajdik v Bratislava District Court (Slovakia)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 14 January 2022 |
| Neutral Citation | [2022] EWHC 55 (Admin) |
| Docket Number | Case No: CO/3955/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 55 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/3955/2020
Graeme Hall (instructed by National Legal Services Solicitors) for the Appellant
Jonathan Swain (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 9 November 2021
Approved Judgment
Introduction
The appellant, Marek Vajdik, renews his application for permission to appeal against the decision of District Judge Zani (“the judge”) on 22 October 2020. The judge ordered the appellant's extradition to Slovakia pursuant to a European arrest warrant (“EAW”) seeking his surrender for trial in relation to an offence of street robbery.
The application for permission to appeal came before Lane J on the papers on 16 February 2021. He granted permission to appeal on ground 1, which alleged that the EAW represented a wholesale failure to comply with the requirements of s. 2 of the Extradition Act 2003 (“the 2003 Act”) and/or was an abuse in the sense identified in Zakrzewski v Poland [2013] UKSC 2, [2013] 1 WLR 324. He refused permission on ground 2, which alleged oppression contrary to section 14 of the 2003 Act and ground 3, which was that extradition would be a disproportionate interference with Mr Vajdik's rights under Article 8 of the European Convention on Human Rights and so contrary to s. 21A of the 2003 Act.
The application for permission to appeal on grounds 2 and 3 was renewed. It was due to be heard together with the appeal on ground 1. The hearing was listed on 11 June 2021 before Jay J. He gave a reserved judgement dismissing ground 1 and directed that the renewed application for permission to appeal be considered at a separate hearing, with the appeal to take place immediately if permission were granted.
The appellant now proceeds with his renewed application for permission to appeal on ground 3 only, noting that the test of proportionality under Article 8 is less stringent than the test for oppression/injustice under s. 14.
It follows that the only issues before me today are the application for permission to appeal and, if permission is granted, the appeal on ground 3 (Article 8).
The facts
The offence for which the appellant is sought is a street robbery carried out with another. The EAW alleges that on 5 August 2012 the victim was assaulted, a mobile phone worth EUR 360 stolen and spectacles worth EUR 60 broken.
The relevant chronology is as follows. In March 2013 the appellant moved to the UK. On 9 May 2013 he was, in the terminology of the further information supplied by the judicial authority, “accused” of the criminal offence. On 25 January 2014, his co-defendant was convicted and sentenced to 1 year and 8 months' imprisonment. In February 2016, the appellant met his current partner. In June 2017 they had a daughter. On 5 March 2019 a domestic arrest warrant was issued in Slovakia. On 13 February 2020 the EAW was issued. It was certified by the National Crime Agency on 28 February 2020. The appellant was arrested under the EAW on 18 April 2020. The extradition hearing took place on 19 August 2020. The judge gave his written reasons for ordering extradition on 22 October 2020.
The judge's judgment
The judge considered s. 21A of the 2003 Act between [69] and [86] of his judgment. At [70], he noted that the allegations against the appellant were “serious” and that if the appellant were to be convicted of like conduct in the UK, a prison sentence may result. This meant that extradition would not be disproportionate in terms of s. 21A(1)(b).
At [72]–[81], the judge set out the relevant law on Article 8 in the extradition context. He referred to Norris v Government of the USA (No. 2) [2010] UKSC 9, [2010] 2 AC 487, HH v Italy [2012] UKSC 25, [2013] 1 AC 338 and Celinski v Poland [2015] EWHC 1274 (Admin), [2016] 1 WLR 551.
Applying the balance-sheet approach approved in Celinski, the judge identified the following factors in favour of extradition at [84]:
“(i) There is a strong and continuing important public interest in the UK abiding by its international extradition obligations.
(ii) The seriousness of the offence that the requested person faces. It appears to be a very unpleasant joint enterprise robbery where violence was used, injuries inflicted and property stolen.”
At [85], the judge identified the following factors against extradition:
“(i) MV says that he has been settled in the UK since 2013.
(ii) He states that until the Coronavirus pandemic took hold he had been in regular employment, and indeed has produced documents by way of corroboration. He has fixed rented accommodation where he resides with his wife and their child. He has concerns as to the adverse effect that extradite will have on his family emotionally and financially.
(iii) MV states that he has led a law-abiding life since settling in the UK.
(v) He asserts that he is not a fugitive from justice.”
There was no (iv).
At [86], the judge recorded his finding that extradition would not be disproportionate. He gave the following reasons:
(i) It is very important for the UK to be seen to be upholding its international extradition obligations. The UK is not to be considered a ‘safe haven’ for those sought by other Convention countries either to stand trial or to serve a prison sentence.
(ii) In my opinion, the offence details as set out in the EAW are serious and unpleasant and, in the event of a conviction in the UK for like criminal conduct, a prison sentence of some length may well be imposed.
(iv) MV is not currently in paid employment and is in receipt of UK state benefits.
(v) It is appreciated that there will be hardship caused to the requested person and to his wife and their child. However, that of itself is insufficient to prevent an order for extradition from being made.
(vi) This court has weighed in the balance and borne in mind the period of time that has passed since the alleged criminal conduct is said to have occurred but does not accept that the IJA has been guilty of any culpable delay in seeking his return. In all the circumstances, the time period involved, does not tip the balance in favour of extradition being Article 8 disproportionate.”
There was no (iii).
The appellant's criticisms of the judgment
Graeme Hall, for the appellant, submits that the crucial error was the judge's treatment of the delay on the part of the prosecuting authority. In particular, it is said that the judge: (i) under-analysed the impact of the delay; (ii) failed to identify that the appellant was not at fault for it; and (iii) failed to conclude that the delay was culpable.
Mr Hall relies on a number of authorities. In Dabrowski v Poland [2017] EWHC 179 (Admin), the Divisional Court allowed an appeal against the decision of a judge ordering the requested person's extradition for a street robbery committed in 2008. Charges were laid in 2008 but no European arrested warrant was issued until 2014. At [37], Treacy LJ (with whom Nicol J agreed) said the judge's approach to delay had involved “a degree of under-analysis”. Whilst he had identified the period involved, he had done little more than that. He had failed to analyse delay in the context of its impact upon the appellant and his family.
At [44], Treacy LJ continued as follows:
“It seems to me that the undoubted very significant weight which should be attached to the public interest considerations of extradition can properly be said to be somewhat lessened by the delay of 6 years. Whilst I would be prepared to accept it would not immediately have been apparent to the Polish authorities that the appellant had left the country, there ought to have been an earlier point at which this was apparent. In the absence of explanation, notwithstanding ample opportunity for doing so, I consider that a fair conclusion to reach. The consequence of this is that I would regard it as some indication of a lesser degree of importance attached to the offending, with a concomitant diminution in the weight to be attached to the public interest.”
In Lysiak v Poland [2015] EWHC 3098 (Admin), the appellant was sought to serve a sentence of imprisonment for a fraud committed between 2000 and 2001. There was a very significant delay of more than nine years before the trial at first instance and then a further period of more than two years until the appeals' process was concluded. Burnett LJ (with whom Hickinbottom J agreed) said this at [31]:
“The important feature is that none of that delay can be laid at the door of the appellant. Furthermore, there is nothing about the circumstances of the proceedings as disclosed in the papers before us which suggests that they were especially complicated.”
At [32], Burnett LJ held that the judge had misdirected himself as to the relevance of the long delay. This meant that the balance had to be struck afresh. Taking into account the appellant's age at the time of the offending (25), the fact that he had committed no further offences, had been in gainful employment and the “financially parlous situation” of his wife and the impact on a child who had been at school in England since the age of 5, extradition was disproportionate.
Lysiak was cited with approval by Lord Lloyd-Jones, giving the judgment of the Supreme Court in Konecny v Czech Republic [2019] UKSC 8, [2019] 1 WLR 1586, at [57].
In Rybak v Poland [2021] EWHC 2021 (Admin), the requested person was sought to serve a sentence imposed in 2015 for offences committed in 2006. Sir Ross Cranston, sitting as a High Court Judge, said this at [26]:
“The focus of this court, under the leading case of Polish Judicial Authorities v...
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...delay in the context of Article 8. I have also been referred to Stryecki v Poland [2016] EWHC 3309 (Admin) and Vajdik v Slovakia [2022] EWHC 55 (Admin) at §§14 to 20. From these authorities the following propositions can be derived: (1) The delay since the crimes were committed (i.e. over......