R Filipek-Kwasny v Polish Judicial Authority (No 2)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 19 January 2012 |
| Neutral Citation | [2012] EWHC 25 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10396/2010,Case No: CO/10396/2010 |
| Date | 19 January 2012 |
[2012] EWHC 25 (Admin)
Mr Justice Ouseley
Case No: CO/10396/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Edward Fitzgerald, QC and Mr Ben Cooper (instructed by G T Stewart Solicitors) for the Appellant
Mr Toby Cadman (instructed by Crown Prosecution Service) for the Defendant
This is an appeal by Mrs Filipek-Kwasny, a Polish national aged 43, from the decision of Senior District Judge Riddle. On 28 September 2010, he upheld the application by the Judicial Authority in Poland for her extradition to on two accusation EAWs relating to offences of fraud and theft. She appeals on the ground that it ought to have appeared to him that it would be oppressive to extradite her, by reason of the passage of time since the commission of the offences alleged against her; and he ought not to have found that she was a fugitive from justice, so as to prevent that bar under s14 Extradition Act 2003 operating in her favour. She also appeals on the ground that he ought to have found that her extradition would breach the rights of her and her family under Article 8 ECHR.
The facts
EAW1, certified on 14 April 2008, concerns three offences of fraud. The first in time was allegedly committed between late 1997 and early 1999, so probably in 1998: falsifying a customs document to evade duties on an imported car; no value is given. The second in time was a group of six alleged frauds committed between May and June 2000: defrauding six individuals over money to settle their bank debts; the loss totalled some £1160, varying between £29 and £255 per individual. The third was an alleged fraud involving £33 from an individual. The domestic warrants for these offences were issued in January and April 2003.
EAW2, certified on 2 September 2008, concerned a single offence of theft, allegedly committed in the summer of 2001 with her husband, whose extradition is nonetheless not sought. Over a couple of months, they allegedly stole clothing entrusted to her and worth about £4300, from a workplace for the disabled. The domestic warrant for this offence was issued in March 2004. The total value of the dishonesty, excluding the unknown customs duty, is thus some £5530.
The Appellant came to the UK on 29 June 2002, with her husband and their three children, then aged 11, 7 and The children were aged 6, 2 and about 1 when the first offence was alleged to have been committed, taking that as 1997. Since they came to the UK, she has had two more children. Her children are now aged 20, 16,12,7 and just 3.
There are no criminal convictions recorded against the Appellant since her arrival in the UK.
The District Judge heard evidence from the Appellant herself on the passage of time, and what she was aware of in relation to proceedings against her for these offences at the time she left Poland. She said that she had no knowledge of them or of being required to attend court at any stage in connection with them. She denied any obligation to inform the authorities if she left Poland, because she said there were no outstanding cases.
He set out the Respondent's evidence. The Appellant had had a number of criminal proceedings against her for other offences before she left Poland on 29 June 2002. She was convicted of an offence in 1999, she did not appeal and received a suspended sentence of 18 months, with five years on probation, a requirement to make redress, and to commit no other intentional crime. But she did not comply with the requirements, and she was ordered in her absence in 2003 to serve the term of imprisonment. She was convicted of another offence in October 2001: she appealed unsuccessfully; she was present, represented at both hearings; she was sentenced to 18 months imprisonment, which "was validated" on 28 March 2002. It is not clear whether this sentence was suspended. Her extradition is not sought on those matters.
A letter from the Circuit Court in Gliwice dated 25 June 2010 says:
"It should be also emphasized that Aneta Filipek-Kwasny was instructed about her rights and duties several times, among others about her duty to appear every time when summoned by the Court or the Public Prosecutor's Office and about her duty to inform the jurisdiction authority about changing the place of stay or residence (art.75 §1 of the Code of Criminal Procedure, art 138 and 139 §1 of the code of Criminal Procedure), and about the necessity of fulfilment of obligations imposed on her in judgments, however, the fugitive did not fulfil these obligations."
The letter continued that there had been no judgment against her, in relation to what it was agreed must be EAW2, as she did not appear at court despite the fact she was instructed about such a duty by the District Public Prosecutor in Raciborz on 10 June 2002, when the Appellant "personally became familiar with the files." As the District Judge pointed out, if that letter is accepted as correct, she left 19 days after that warning was given, 3 months after appealing unsuccessfully in respect of another matter when a suspended sentence was validated, and 5 months after a court appearance on other matters.
The District Judge concluded:
"I have had difficulty matching all the offences in the warrants with the information above. Some of that information apparently relates to cases not before me. Nevertheless, and at the very least, the requesting authority is stating clearly that the defendant failed to attend court on EAW [2 – as it is agreed he meant] despite being instructed to do so. It will be seen from the summary of evidence given by the defendant that she disputes she was a fugitive. She says, clearly enough, that the Polish authorities are not telling the truth. She accepts that as far as one of the matters is concerned she had been proceeded against, but thought it was over. For the other set of proceedings she categorically denies any knowledge of them. I found Mrs Kwarmy [Kwansky] to be an unreliable witness. For example I was doubtful about the evidence that she was told about article 8 of the Geneva Convention (see p1). Overall her evidence was unconvincing in content and manner. Faced with the clear statement from Poland that she is a fugitive, the fact that on her own account she left Poland within days of being required (on the Polish account) to attend court I have no hesitation or doubt in saying that she is a fugitive from Poland. She fled in June 2002 to avoid prosecution. She is not entitled to rely on this bar."
He then made this point, relevant to both oppression and the passage of time, and to Article 8:
"In the last eight years she, and more importantly her children, have built a life here. The children are in education. It will be seen later that throughout the relevant period this defendant has had young children. At any time during the last eight years extradition would have impacted, probably seriously, on a small child. From that point of view the position with a return to Poland is no more oppressive now than it would have been at any time since her arrival in the United Kingdom. In other words the passage of time has not significantly increased overall the hardship that this family would suffer if she were returned."
Dr Ruth Armstrong, a clinical psychologist, provided a report on the family for the hearing before the District Judge, and without objection, an updated report for the appeal. They were settled in the UK and now had no real links to Poland. The children were doing well; the mother, who spoke little English, was at the heart of a self-sufficient family; the father worked long hours to provide for them. Extradition would rupture the attachment the children had for their mother. The younger two would be "likely to be devastated" by the loss of their mother. There had been distress when she had been absent for two nights when arrested in March 2010. "A more prolonged loss of their mother would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories".
The father could cope with practical matters but would probably struggle to meet the children's emotional needs and especially those of the younger ones. He had certain limitations emotionally, apparently. Dr Armstrong was of the view that this potential emotional fragility could prevent him even fulfilling practical functions and lead to his becoming actively suicidal; he would have to give up his job to care for the children, and the loss of his job and wife could lead to "severe and crippling depression". The potential psychological damage to the five children and to the husband from the mother's extradition would be "extreme".
This could not be ameliorated by the family returning to Poland in view of the disruption which that would cause to the family home and the children's education, including the university aspirations of the eldest.
The District Judge commented, with some justification, that he wondered whether he needed an expert report to tell him that a family with young children may well be devastated if the mother is removed for whatever reason. He accepted the Respondent's submission that it revealed nothing which went beyond that inherent in the removal of a parent in extradition proceedings.
Dr Armstrong's updated report said that the family as a whole continued to function well, albeit that uncertainty over the Appellant's future was causing some strains....
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