Welke v The Provincial Court of Bydgoszcz Poland [2013] EWHC 320 (Admin)

Case No CO/12423/2012[2013] EWHC 320 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 6 February 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
ROBERT WELKEAppellantv
Between
THE PROVINCIAL COURT OF BYDGOSZCZ POLANDRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr M Hawkes (instructed by Edwards Hayes) appeared for AppellantMr D Sternberg (instructed by Crown Prosecution Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal against a decision of District Judge Zani given on 22 November 2012 directing the appellant's return to Poland to face two charges of offences allegedly committed in the course of 2001. The offences themselves, on the face of them, are serious in that it is said that he was acting in an organised criminal group of an armed character and there was obviously the supply of a considerable quantity of marijuana, amphetamines and ecstasy pills.[2]The investigations in Poland were not brought to an end, certainly so far as this appellant was concerned, until 2006. Indeed, it is said that evidence of his involvement was apparently not obtained until 2006. However, it was then in June 2006 that the authorities took the view that they wanted to investigate him. Whether at that stage there was sufficient to charge him is not entirely clear but his father, was who was then in Poland, was informed on 5 June 2006 that police wanted to speak to him, but his father informed them that the appellant was then in England. He said the appellant had travelled to England and had been there for about a year.[3]He says that he has no knowledge of these offences and certainly had no knowledge when he first came to this country. He says that during 2001 for at least 4 months he was not even in Poland, but he was working in Germany. He was in Poland in October, when he was the victim of an assault. Between the end of 2001 and 2002 he was caring for his mother who was terminally ill. In 2003, he went to France to work there, came back to Poland apparently in 2004 when he married his wife and he came to this country in December 2004, his wife and son coming to join him in January the following year. He travelled back to Poland in March 2005, using his Polish identity card, in order to get a passport for his son. He then returned to this country and has been here ever since. He has a daughter who was born here in 2006. In 2007, his mother-in-law arrived to live with them.[4]Sadly, in September 2010 his wife suffered a head injury in an accident at home, and in October she slipped on ice and suffered permanent spinal injury. The result of that is that she is not capable of looking after herself. She needs constant care and attention and she is in constant pain. Indeed, I am told that she has a supply of morphine which she is able to self-administer in order to deal with her pain, and she cannot undertake, for example, bodily functions without assistance from the appellant. In addition it seems that her mother has been diagnosed with lung cancer and has been, certainly during the course of last summer, undergoing chemotherapy and radiotherapy. Quite what her present condition is is not entirely clear but it is apparent that because of her own state of health she is not able to provide other than limited care for her daughter.[5]As a result of the injuries suffered by the appellant's wife, she suffers from depression, which is hardly surprising, and there are reports which suggest that there is at least the possibility of suicidal thoughts, which could be put into effect. Certainly it is apparent on the evidence that were the appellant to be extradited to face these charges, which are serious, and if he were convicted, he would face a custodial sentence of some length. Certainly judging by what the charges are, if he were tried in this country and convicted that would be the likely result. In those circumstances, the evidence is clear that her depression would be likely to increase and while it is possible, as Mr Sternberg points out, that there could be treatment which might ameliorate her condition, nonetheless there would be a deterioration, and, more importantly, as Mr Hawkes submits, the effect on her of the absence of her husband and the lack of care that he provides being able to be replicated, whether or not the State would be able to supply a degree of care, is an important factor.[6]In addition, there are the children. There is a son now 14, who has been in this country since 2005, and a daughter who was born in 2006 and is now coming up to 7 years old. She has spent all her life in this country. There is evidence that the effect on the son of the possibility of extradition has been damaging. He has been diagnosed as suffering from either post traumatic stress disorder or a condition which seems to be somewhat akin to that, and certainly there is a very damaging effect upon him. The same can be said to apply to the daughter. Indeed, if they have to be uprooted and go back to Poland, where the daughter has never been and the son has not been for now some 7 or 8 years, it would be an exceedingly hard position.[7]So far as someone to look after the family were they to go back to Poland, the latest evidence from the appellant's wife, which deals with what was suggested as a possibility in the state of the evidence before the District Judge, is that there is nowhere for her to live in Poland. Her grandmother, who is now 87, has a two-bedroom flat but she is living with two of her cousins (that is to say the appellant's wife's cousins) who take care of her, so there is no prospect of any assistance there. The appellant's father lives in a one-bedroom flat with his partner, so there is no possibility for her and the children to reside with them, and there is otherwise no-one available to look after them. Of course, there is the possibility of the State providing for care but that has not been directly gone into.[8]If this were not a serious offence I would regard this as a case where on balance it could be said that the circumstances (and this always depends upon its own facts) might have justified a refusal to return. The added factor which is of importance here is the length of time since the offences were allegedly committed. I have no evidence which suggests that there was any culpable failure by the authorities in Poland not to identify the appellant as having taken part in these offences until 2006 but that, of course, is now more than 6 years ago. They discovered from his father that he was not in Poland but was in England. So there is no question of an inability to trace him. However, it was not until 2008 that a domestic warrant was issued, presumably because it was not until then that the authorities were satisfied that this was a case where they had sufficient to charge, as opposed to mere suspicion.[9]The arrest warrant ("the EAW") was issued in October 2008. Unfortunately, it was not until some 3 years later that it was certified by the Serious and Organised Crime Agency. It is not entirely clear who was responsible for that 3-year delay. It is to be noted that the English translation of the EAW indicates at the end:
"I, the undersigned, sworn translator of the English language at the District Court in Lublin, hereby certify that the above is an exact and true translation of the original document drawn in the Polish language as presented to me. In witness whereof I have hereunto set my hand and seal of office this July 17th 2010. This translation consists of five pages."
But the date of the warrant was 24 October 2008. Quite what one reads into that is not entirely clear. It is unfortunate that that does not appear to have been spotted before the District Judge. Indeed, it is a matter, I was told by Mr Hawkes, that only occurred to him when looking at it in the course of the luncheon adjournment today. He notes too that the Polish original of the warrant appears to bear a date of June 2010 but it is not entirely clear what that date relates to because the date of the warrant itself is 2008. It is, of course, possible that the signature of the translator although dated July 2010 in fact is simply a confirmation that the English translation was correct and it may be that it was in the possession of the Serious and Organised Crime Agency before that. But it seems to me perhaps not to be of vital importance. The reality is that this is not a case where it is suggested that the appellant was a fugitive from justice. The District Judge did indicate that he would have found it surprising that his father did not inform him of the police interest in him when they visited him, the father, in 2006. That may be so but that does not of itself indicate that he was, or should have been, aware that the police interest extended to a charge. He says, and his evidence is, that he was not involved in the offending and was unaware, and would be unaware, of the matters which are alleged against him.[10]The submission essentially made is that the lapse, for which he was not responsible, puts this case the right side of the borderline, as it were, in favour of the appellant. When one adds together all the adverse effects upon not only the children but the wife as well, the break-up of the family which would be inevitable were he to be returned, because of the highly damaging effect and the absence of anyone else who can effectively care for the children and the wife in all the circumstances. Had this been dealt with earlier, before the accident to his wife, different considerations would undoubtedly have applied but one has to bear in mind her parlous condition resulting from the accident, not only physically but also mentally. The only problem is the seriousness of the offence and it is quite clear from the observations of, in particular, Lord Judge in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 that it would be rare indeed for this court to decide that return was not proportionate where one is concerned with a serious offence.[11]The District Judge considered carefully all the relevant circumstances and it cannot be suggested that he misdirected himself in any way in the decision that he reached. He said that he was satisfied in the end that, disappointing though it would be for the appellant and his family, he was left with no alternative but to find that it was proportionate and necessary that he be returned. It is to be noted that when dealing with the question of responsibility for delay, it was put on the basis of a delay by the Polish authority and he took the view that the delay until 2008 could not be regarded as culpable. He may well be right so far as that is concerned but, of course, there was a 3-year delay subsequent to that. As I have said, it seems to me not to be of real importance whether that was down to the Serious and Organised Crime Agency or whether it was down to the Polish authority, the fact is that it was not in any way the responsibility of the appellant.[12]I entirely recognise that the hurdle that has to be overcome by a requested person who seeks to rely on Article 8 and lack of proportionality as affecting him or his children or his wife, and, equally, oppression in terms of section 14 of the Act, is set at a very high level. The need to comply with our international obligations in terms of extradition is of fundamental importance. There are a number of authorities, both HH and following, where the courts have had to consider whether the hurdle has been overcome. Each of these cases depends entirely on its own facts and it is quite impossible, in my view, to refer to them as authorities in any particular regard. They simply indicate what individual judges on the facts of individual cases have considered to be the appropriate result. This case is particularly difficult, in my view.[13]As I say, what militates against the appellant is the seriousness of the offences which he faces. However, they were committed a long time ago. Furthermore, he has indicated clearly that he knows nothing of them and he was not involved. Of course, we do not know what evidence there is against him, although it is to be noted that apparently no evidence against him came to the notice of the authorities in Poland for some 5 years because it was not until 2006 that it is said that his involvement was identified. We do not, of course, know what led to that and we do not know what may have been held against him if he was involved in a criminal enterprise there. He certainly has not been involved in any criminal enterprise since, he was worked hard in this country and there is nothing against him here.[14]As I have said, this is very much a borderline case but having regard to the accident and the condition of his wife, having regard to the length of time the children have been here and the upset and harshness for them of the return, having regard to his adamant denial of any involvement in this offence throughout, having regard to the fact that the Polish authorities must be taken to have known from 2006 onwards that he was not in Poland but in this country, having regard to the delays in the execution of the arrest warrant, I am just persuaded that this is a case where it would be disproportionate to order his return.[15]In those circumstances I will allow this appeal.[16]Do you want you usual order?[17]MR HAWKES: I would be very grateful, my Lord.