Robert Chodorek v District Court of Kielce, Poland
| Jurisdiction | England & Wales |
| Judge | Sir Wyn Williams |
| Judgment Date | 03 May 2017 |
| Neutral Citation | [2017] EWHC 995 (Admin) |
| Date | 03 May 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3408/2016 |
[2017] EWHC 995 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Wyn Williams
Sitting as a Judge of the High Court
Case No: CO/3408/2016
Ms Emilie Pottle (instructed by Aneta Maziarz Solicitors) for the Appellant
Ms Saoirse Townshend (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 22 March 2017
Approved Judgment
This is an appeal against an order for the appellant's extradition to Poland made by District Judge Baraitser on 29 June 2016. The order of the District Judge requires the appellant to be returned to Poland to serve 6 months and 27 days imprisonment which is the outstanding balance of a sentence of 1 year and 3 months imprisonment imposed on 28 November 2000. It is common ground that the appellant was conditionally released from his sentence on 20 December 2001. On 27 June 2003 a decision was taken that the appellant should serve the remainder of his sentence; this was because he had committed a further offence following his release on 20 December 2001.
The hearing before the District Judge was uncontested. It seems clear that the duty solicitor who represented the appellant before the District Judge failed to take points which were properly arguable on behalf of the appellant and which, if made out, would have been a bar to his extradition. Fortunately for the appellant, he obtained appropriate legal advice in time to issue a notice of appeal to this court. Permission to appeal was granted by Ouseley J. I am satisfied that permission was granted in respect of both grounds which are set out in the grounds of appeal. For the avoidance of any doubt, however, I make it clear that I consider both grounds of appeal to be properly arguable so that if Ouseley J intended to confine the permission which he granted to ground 2, as the Respondent was disposed to argue at least in the skeleton argument of Ms Townshend, I would grant permission in respect of the first ground.
Ms Pottle for the appellant and Ms Townshend agree that although this appeal can succeed only if I conclude that the decision of the District Judge was wrong, I must assess the grounds of appeal as if I was the primary decision maker. So much is obvious since the grounds were not advanced before the District Judge.
The appellant raises two bars to his extradition. First, it is submitted on his behalf that the offences committed in Poland, as described in the European Arrest Warrant ("EAW") and further explained by additional information provided by the respondent, are not "extradition offences". If that is correct, the appellant must be discharged under section 10 of the Extradition Act 2003 ("the 2003 Act"). Second, it is submitted that the appellant's extradition would be a disproportionate infringement of the rights of the appellant and his family pursuant to Article 8 of the European Convention on Human Rights (ECHR). I deal with each potential bar to extradition in turn.
An offence committed in a Category 1 territory such as Poland will be an extradition offence if it satisfies the provisions of section 65 of the 2003 Act. In this case the crucial issue is whether the conduct of the appellant in Poland "would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom" (see section 65(3) of the 2003 Act). It is for the respondent to prove to the criminal standard that the conduct set out in the EAW as amplified by the further information provided by the respondent constitutes an extradition offence.
The conduct in question is set out in Part E of the EAW in the following terms:-
"1. This warrant relates in total to 25 offences which are within the sequence of offences defined in Article 91 [1] of the Criminal Code
2. The circumstances of committing the offence(s)
In the period from 23April 1999 to 15 July 1999 in [a specified place], acting in a similar way, at short periods of time, in order to achieve the benefits of property by deception as to the amount of funds deposited in his bank account no… and money withdrawal with the ATM card, bank…to the unbeneficial management of property at the amount of PLN for 4700 as follows."
The EAW then continues by specifying 25 separate occasions between 23 April 1999 and 15 July 1999 when the appellant withdrew money from an ATM using his card. The amounts withdrawn were of varying sums ranging from, at the lowest, PLN 20 at the highest PLN 500.
Following the hearing before the District Judge but after the appellant had issued a Notice of Appeal, further information was sought from the respondent about the nature of the appellant's offence. The request for information was not in the appeal bundle but Ms Townshend provided me with a copy shortly after the hearing had concluded. The respondent was asked to specify what "was the deception in the offence", how the offence was committed, "who did the money belong to" and whether the money was in the appellant's bank account. The appellant was also asked to provide more details of "exactly what [he] did to commit the offence".
It is necessary to set out, in full, the respondent's response.
"In response to a letter of British authorities sent in with a cover letter of 27 July 2016, please be advised that [the appellant] had an account with a bank. The bank gave him an ATM card with an overdraft facility. He was authorised to overdraw his account, but a debit could not be higher than monthly payments into the account in a period of 3 months before a withdrawal. In the period before the commission of an offence, the defendant's account was credited with amounts of his pay in the range of PLN 799.78 to PLN 1106.49. On 23 April 1999 [the appellant's] account was overdrawn by PLN 810.37. On 22 May 1999 [the appellant] was called on to pay off his overdraft. Then the account was credited with his pay, and yet he withdrew an amount higher than his pay. On 10 June 1999 [the appellant] was called on to pay off an amount of PLN 1101.87, his overdraft rose. He did not make any payments to pay off his debt. On 26 August 1999 his overdraft rose to PLN 4453.83. On 12 August 1999 the bank cancelled his ATM card. [The appellant] made 2 payments to settle his debt; in total he paid an amount of PLN 800. Being aware of his debt that he failed to pay off, [the appellant] made successive withdrawals, thus creating a higher debt that was an actual loss on the part of the bank. To date, he has not paid off the amount owed by him to the bank. [The appellant] was aware that he was unable to pay off his debt, even though he deliberately and premeditatedly made successive withdrawals from an ATM, whilst obtaining financial gain and acting to the detriment of the bank. There were no sufficient funds on [the appellant's] account to cover the withdrawals he made. Successive withdrawals resulted in an overdraft which [the appellant] had no intention to pay off. By the same token he defrauded the bank, gaining a certain amount of money by false pretences."
Ms Townshend submits that the conduct set out above amounts to the offence of theft in this jurisdiction. At the material time, i.e. in 1999 a person was guilty of theft if he dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it. (The offence of theft is defined in identical terms at the present time). Ms Townshend submits that I can properly infer from the information provided by the respondent that the appellant acted dishonestly and with the intention of permanently depriving the bank of its money. She also submits that the money "belonged" to the bank at the time it was appropriated by the appellant.
In support of her submission that the appellant's conduct amounted to the offence of theft Ms Townshend relies particularly upon the decision of Roderick Evans J in Dansk Regional Court v Ulatowski [2010] EWHC 2673 (Admin). In that case Mr Ulatowski and his wife had opened a bank account in Poland and the bank and they had agreed overdraft facilities in respect of the account. As in the instant case, Mr Ulatowski used a debit card issued to him by the bank in respect of the account in order to obtain money from ATMs with the consequence that the agreed overdraft limit was exceeded. He was charged with and convicted of offences contrary to Article 278 (1) of the Polish Penal Code and sentenced totalling 3 years and 6 months imprisonment.
Roderick Evans J accepted the submission on behalf of the Polish authorities that the conducted complained of constituted the offence theft in England and Wales. He found that dishonesty and an intention permanently to deprive was properly to be inferred from the information set out in the EAWs in that case; further, he held that Mr Ulatowski had appropriated property belonging to another.
Ms Townshend submits that for all practical purposes the factual circumstances in Ulatowski are identical to the circumstances in the instant case and that I should follow both the reasoning and decision of Roderick Evans J.
Ms Pottle contends that I should not follow the decision in Ulatowski nor should I follow its reasoning. She submits that the decision of Robert Goff J (as he then was) in Barclays Bank Limited v WJ Simms Son & Cooke (Southern) Limited [1980] 1 QB 677 completely undermines the reasoning of Roderick Evans J. This decision was, apparently, not cited in Ulatowski; Ms Pottle submits that had Roderick Evans J been aware of it he would have decided Ulatowski differently.
The Barclays Bank case was not concerned with the definition of theft in any way. However, it is of relevance to the instant case, submits Ms...
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