Baksalry, R (on the application of) v Regional Court Warsaw, Poland [2013] EWHC 372 (Admin)

Case No CO/12118/2012[2013] EWHC 372 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 31 January 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE WYN WILLIAMS
Between
THE QUEEN ON THE APPLICATION OF BAKSALRYClaimantv
Between
REGIONAL COURT WARSAW, POLANDDefendant
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 7831 8838(Official Shorthand Writers to the Court)
Mr Atlee appeared for ClaimantMiss Hinton appeared for Defendant
J U D G M E N T
[1]MR JUSTICE WYN WILLIAMS: The appellant is a Polish national, born on 9 March 1973. His extradition is sought by the judicial authority in Poland for the purpose of conducting a criminal prosecution of offences of theft from his employer, allegedly committed on 19 and 24 September 2003. It is clear from the evidence that domestic proceedings were commenced against the appellant in February 2004, a comparatively short time after a complaint was first filed by the employer on 17 October 2003.[2]Following the complaint by the employer, the police in Poland appeared to investigate quite swiftly. By 11 January 2004 there had been a decision made to charge the appellant. Attempts were then made, so it is said, to locate the appellant but that was unsuccessful. So it was that on 19 April 2007 a warrant was issued domestically - that is in Poland - for his arrest. It was still not possible to locate the appellant. It appears from the evidence accepted by the district judge that attempts were made to locate him by the relevant authorities in Poland by placing his photograph on a police internet page. At some point after 19 April 2007 information was received that the appellant was wanted on an arrest warrant issued in Jarocin. In any event, a European arrest warrant which is the subject of these proceedings was issued on 1 June 2011 and certified by the Serious Organised Crime Agency (SOCA) on 7 May 2012.[3]The appellant was arrested in this country on 25 June 2012. He was taken before the Westminster magistrates and granted bail in these proceedings. The substantive extradition hearing took place before District Judge Snow on 8 November 2012 when the district judge directed extradition. It is against that order that the appellant now appeals to this court.[4]Before the district judge the appellant relied upon two grounds of opposition: they were whether his extradition would be unjust or oppressive due to the passage of time under Section 14 of the Extradition Act 2003, and whether to order his extradition was disproportionate to the Article 8 rights of the appellant and his family. The district judge found that the extradition would not be unjust or oppressive. He also found that it would not be disproportionate to the Article 8 rights of the appellant and his family.[5]In this court the appellant does not pursue the contention that the ordering of extradition would be a disproportionate interference with the Article 8 rights of his family and himself. The issue for my determination is whether the district judge was wrong in his conclusion that extradition would not be unjust or oppressive due to the passage of time under Section 14 of the Act.[6]In the detailed and careful judgment of the district judge he first considered whether or not the appellant was a fugitive from justice in Poland. Upon the assumption that he was such a fugitive, the Section 14 argument could not avail him. The district judge concluded that the appellant was a fugitive and, in consequence, was not entitled to rely upon Section 14.[7]In this court, in written submissions, Mr Atlee challenges that conclusion. The oral submissions have not focused on that conclusion for the obvious reason that even if it can be established that the district judge was wrong in his conclusion that the appellant was a fugitive it would still be necessary for the appellant to demonstrate that due to the passage of time his extradition would be unjust or oppressive.[8]I have some doubts about whether the conclusion that the appellant was a fugitive was justified on all the facts of the case. However I make no definitive ruling upon that point since the district judge heard the evidence of the appellant and was in a much better position than I to judge whether or not the appellant was properly to be regarded as a fugitive. To repeat, that does not seem to me to be at the heart of this case. What is at the heart of this case is whether or not the district judge was wrong to conclude that extradition would not be unjust or oppressive due to the passage of time.[9]Mr Atlee, with his customary frankness, concedes that the district judge was correct to conclude that extradition would not be unjust. He does not suggest that he could establish that any injustice - in the way that that word has been interpreted - would occur if extradition were to take place to Poland. His focus therefore is upon the issue of whether or not oppression can be established.[10]The first prong to Mr Atlee's argument is that the judicial authority was here guilty of culpable delay. He submits that a very long period of time expired between the date when a complaint of theft was first made in October 2003 and when the arrest warrant was issued which was in 2011. Obviously a period of very nearly eight years went by. He submits that on the whole of the evidence, including a letter dated 17 September 2012 in which the judicial authority sought to explain that delay, culpable delay is established. The district judge dealt with that argument shortly but succinctly. He said:
"I asked whether it would be oppressive to order his extradition. The RP [appellant] relies on the alleged 'inertia' of the JA in pursuing this matter which he claims amounts to culpable delay. He also relies on the strong roots that he and his family have laid in the UK, the life that he has built here and the disruption to his family life. I reject the assertion that the JA have been guilty of culpable delay. I am quite satisfied that, to the contrary, the JA has been active in trying to locate the RP. I am satisfied that the JA pursued their inquiry expeditiously in 2003. Further this is not a borderline case of oppression."
[11]Miss Hinton, on behalf of the judicial authority, urges me to adopt the same stance as was adopted by District Judge Snow.[12]I have already recited the facts which are pertinent in terms of the alleged delay in this case. By way of summary repetition, the alleged offence took place in October 2003. There was an immediate complaint to the police in Poland. A reasonably prompt decision was made to charge the appellant. Thereafter attempts were made to locate him albeit that those attempts appear to have spanned a number of years. The reason why the appellant was not located is now easy to express. The authorities thought that he was living with his father when he was in Poland prior to 2003 and during 2003. In fact, he was living with his wife and his in-laws. Mr Atlee makes the point that a diligent and efficient search for the appellant would or should have located the appellant in his proper address. The reality is that the appellant left the home of his parents-in-law within a few months of the alleged offence. Whether or not that was because he was fleeing justice, at present matters not.[13]I am not satisfied that it would be proper to conclude that the judicial authority was guilty of culpable delay in failing to locate the appellant in his parents-in-law's home for the few months that he was residing there between the commission of the alleged offence and his decision to leave Poland for the United Kingdom.[14]Was there culpable delay in locating the appellant thereafter? In my judgment there is no substantial evidence to point to that conclusion. I have already explained the steps which the judicial authority took to ascertain the whereabouts of the appellant after 2004. Although it might be said that they could have proceeded with greater vigour, the reality is that the appellant was in this country and the means by which the authorities could have discovered that were comparatively limited. I would be inclined to agree with District Judge Snow that Mr Atlee has failed to establish on behalf of the appellant that there was here culpable delay. Even if he had, the ultimate issue for this court is whether or not it would be oppressive for the appellant to be extradited.[15]Mr Atlee relied upon the decision in La Torre v Republic of Italy [2007] EWHC 1370 for the proposition that there may be cases in which culpable delay, if established, would be a highly material factor in considering whether or not it was oppressive to extradite the appellant. I assume for these purposes that there are cases in which culpable delay could be a material factor and, indeed, a very significant factor depending on the circumstances of the case. However there is no decision of which I am aware which unequivocally determines as a matter of principle that culpable delay "per se" - Mr Atlee's phrase - could constitute oppression for the purposes of Section 14. In my judgment the issue of oppression has to be looked at in the round, taking account of all the relevant factors in a case of this type.[16]In summary, the matters to which the appellant refers in his proof of evidence - as emphasised by Mr Atlee orally - demonstrates a degree of hardship should extradition occur but falls far short of the high threshold for establishing oppression.[17]Accordingly, on a proper analysis of all the facts in this case, my conclusion is that the district judge was correct in his finding that there was no culpable delay and no oppression. Even if I had been persuaded that some part of the delay in this case was capable of being categorised as culpable, I would have still reached the conclusion that the high threshold for establishing oppression was not met in this case. That high threshold is referred to in Miss Hinton's skeleton argument by reference to Republic of South Africa v Dewani [2012] EWCA 842. At paragraph 73, Sir John Thomas (President) said:
"73 In our view, the words in Section 91 and Section 25 set out the relevant test and little help is gained by reference to the facts of other cases. We would add it is not likely to be helpful to refer a court to observations that the threshold is high or that the graver the charge the higher the bar, as this inevitably risks taking the eye of the parties and the court off the statutory test by drawing the court into the consideration of the facts of the other cases. The term 'unjust or oppressive' requires regard to be had to all the relevant circumstances, including the fact that extradition is ordinarily likely to cause stress and hardship; neither of those is sufficient."
[18]In reaching my conclusion on oppression, I have applied the test as laid down by the President. To repeat, in my view the district judge was correct to conclude that it would not be oppressive to extradite the appellant to Poland on account of the passage of time in this case. Accordingly, I dismiss this appeal.[19]MR ATLEE: May I make the usual application for assessment of legal aid costs?

MR JUSTICE WYN WILLIAMS: So I grant it.