Wielgus v District Court In Krakow (Poland) [2012] EWHC 3975 (Admin)

Case No CO/8820/2012[2012] EWHC 3975 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 18th December 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
WIELGUSClaimantv
Between
DISTRICT COURT IN KRAKOW (POLAND)Defendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss B Jung (instructed by Hodg Jones Allen LLP) appeared for ClaimantMIss M Westcott (instructed by CPS) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is an appeal against an order made by District Judge Snow in August that the appellant be extradited. He was requested under a European Arrest Warrant to serve a sentence of 1 year and 6 months. That sentence was imposed for an offence of fraud where apparently the result of the fraud was that the appellant obtained a computer and a computer screen.[2]In July 2003 the Regional Court in Krakow imposed that sentence. It became enforceable later that month. It is uncertain when the sentence was activated but, apparently it was as a result of road traffic offences, which the appellant committed at some point. The appellant then moved to this country when he obtained a job offer in July 2007. The arrest warrant was issued in May 2009 and SOCA certified that the warrant in April 2012. Pursuant to the warrant the appellant was arrested.[3]The matter, as I say, came before District Judge Snow. He heard evidence in particular relating to an Article 8 issue which the appellant raised. That concerned the health of his wife and the condition of his son who had been born in 2009. The judge said that no formal medical reports had been produced and there was no evidence to corroborate the appellant's assertions. In fact the judge said that documents contradicted some of the appellant's evidence and he found that the medical evidence, to an extent, had been exaggerated. The medical notes before him led him to conclude that his partner's depression was improving and nothing in the notes supported the contention that she was able to look after the son.[4]The judge made findings of fact that the appellant was a fugitive, that the partner's health issues were not so significant as to prevent her from fully caring for the son, and that the son had one leg shorter than the other but there was no reliable evidence to suggest that he suffered from any other emotional or health issue. The judge also found that the son did have a strong bond with the appellant and he would find separation distressing. The judge said this:
"The offence which is the subject of this EAW merited a sentence of 1 year 6-months' imprisonment. It was clearly a serious offence. The delay in this case was caused by the requested person who is a fugitive. I am satisfied that his partner and child will not be destitute if his extradition is ordered. I am satisfied that his partner is capable of caring for their son albeit both will be distressed by the temporary absence of the appellant."
The judge then went on to recognise that great weight which attaches to honouring extradition requests. He was satisfied, he said, that it was entirely proportionate that the appellate and his son's Article 8 rights would be -- quoting from the decision held that he was satisfied that the appellant's and his son's Article 8 rights would be properly recognised.[5]Subsequent to the decision of the judge there have been a number of events appertaining both to his partner and his son. First of all, his partner, whose history of depression was acknowledged by the judge, attempted suicide in early September. There is a letter from the medical centre dated 20th November which says that most of the stress she was suffering was caused by social factors because of the appellant's possible extradition. She did not feel that the medication prescribed was making any difference. On that basis she was not prescribed further medication but was referred to the Mental Health Service for assessment and further management. That letter is backed by the medical records themselves and by a discharge notification from the hospital where she was treated, following the suicide attempt. There are also letters dated 20th November and the 13th December from the local Mental Health Services. These describe how the partner has attended five of six sessions. She was tested on admission and after the course of treatment that she had undertaken. The letter of 13th December says that the partner had reported that the therapy had helped to improve her mood but, significantly, that the evidence did not demonstrate moving to recovery over the course of treatment."[6]Evidence subsequent to the extradition hearing in relation to the child describes his condition. He had been referred to the Mental Health Services. They have not been able to identify mental health difficulties, however, it is evident from the letter of 20th November that the doctor, recognising that the son had not been diagnosed with mental health difficulties, nonetheless advised the family to attend the local children's centre to seek further support. There is a letter dated 30th November which records that the son's admission to a nursery place has now been deferred until September 2013, so that he can access certain services to address his difficulties. In my view all that evidence is fresh evidence and meets the high threshold required by this court in Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin).[7]In cogent submissions before me Ms Westcott candidly asserts that there is a certain amount of uncertainty over some of the background to this case. For understandable reasons the requesting judicial authority has not provided as much information as possibly would have been helpful to the court in making an assessment. Nonetheless, by reference to the case-law she submits that the appeal should be dismissed. She refers me to the strong public interest in giving effect to extradition arrangements. She also refers to the fact that this appellant is a fugitive, in that he left Poland knowing that he was subject to a sentence which he had not served. She refers me to JP & Anor v The District Court at Usti nad Labem, Czech Republic & Anor [2012] EWHC 2603 (Admin), paragraph 32, in which Sir John Thomas P (with whom Globe J agreed) said that a delay since the time the sentence was activated - in that case it was 6 years - could in the circumstances of that case carry no weight.[8]Ms Westcott also refers me to a point which arose in the context of that case: albeit that there may be a serious impact on children, this court has dismissed appeals in cases of sole or primary carers. In her submission this is an a fortiori case, since the appellant's partner will still remain in the jurisdiction. In her submission, there was no direct evidence as to how the partner would react to the extradition, no evidence that there was a risk of continued deterioration in her mental health and no clear evidence that she would not be able to continue to care for the child, especially since now the family has the services of a health visitor. In her written submissions she also points to the fact that there was no direct evidence that the partner would not be able to invoke assistance from other family members or friends. Finally, by reference to the case-law Ms Westcott cautions me against imposing any views on the seriousness of the offending in this case.[9]In my view, this is one of those exceptional types of case which Ouseley J dealt with the Nikitins v Prosecutor Generals Office Republic of Latvia [2012] EWHC 2621. In that case there was psychiatric evidence which addressed the capacity of the partner who would be left by the extradited person. There is no such evidence in this case. There had been an application by the appellant's solicitors for that evidence to be provided but that was refused. Notwithstanding the absence of that psychiatric evidence, it seems to me that in this case the situation has moved on significantly from that considered by the District Judge, and not for the better. The letter from the Mental Health Services dated 13 December says that notwithstanding the course of treatment which the partner had undertaken, she was not able to recovery. That is coupled with the fact that she did attempt suicide in September. Moreover, there is the position of the appellant's son. He does not have mental health problems but the evidence demonstrates that he is anxious and hyperactive. His admission to the nursery has been postponed so that he can receive further assistance. The evidence in relation to both the partner and the son in this case suggest that there is a substantial risk to both should the appellant be removed to Poland. It seems to me this conclusion does not require psychiatric evidence. I accept that there is a public interest in maintaining extradition arrangements with Poland. I accept that I can made no assessment of the offence albeit that on the surface the offence stated in the warrant is not especially serious. There is delay, although Ms Westcott properly cautions me against taking that into account because of the question marks over the sequence of events.[10]Notwithstanding those caveats, this is, in my view, one of those rare cases where extradition of the appellant would be disproportionate. On that basis I allow the appeal and discharge the warrant.