Falecki v District Court In Bydguszcz Poland [2013] EWHC 542 (Admin)

Case No CO/12586/2012[2013] EWHC 542 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 12 February 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
FALECKIAppellantv
Between
DISTRICT COURT IN BYDGUSZCZ 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 Lansbury Worthington) appeared for AppellantMS A NICE (instructed by CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Evans directing the appellant's return to Poland to serve a sentence of 15 months' imprisonment, imposed for a non-domestic burglary which was committed in June 2005. The circumstances of the offence were that he broke into a garden shed with another and stole various items from it to the total value of about £50. He had a number of convictions in Poland and the reason why the matter was treated more seriously was because the offence was committed within five years of the commission of a previous offence. Furthermore, he was in breach of a suspended sentence which had been imposed for a driving offence. He had also a serious offence for which he had been imprisoned for committing grievous bodily harm. So he had a number of previous convictions. He was then 24-year old. He appealed against the sentence but, before the appeal was determined, he being at liberty in the meantime, he decided to leave Poland and came to this country. That was in 2006. He has been here ever since.[2]It took considerable time for the arrest warrant to be issued, and it was not in fact issued until March 2012. It was certified by SOCA within a reasonably short period in June 2012 and he was arrested as a result, but there has been some seven and a half years' delay since the sentence was imposed. That is relied on by Mr Hawkes as a factor which can be taken into account in his favour when considering whether return would be proportionate because the matter relied on here is Article 8 of the European Convention on Human Rights. That relates to the situation of his partner and children, who will be deprived of the breadwinner, and it is clear that his partner has some medical difficulties but, apart from that, she has a real problem in being able to look after the children if he is not there, apart from anything else, because she is Polish and, if he is not there, as the individual upon whom she is dependent and he is working here, then she will not be entitled to benefits, other than perhaps child benefit. That would make it exceedingly difficult for her to live -- apart from anything else, there will be problems in relation to the premises in which she is living because she will not be able to pay the rent.[3]She and the appellant have been together for some three years and they have one child, now aged about two, but, in addition, she had children of her own, who are now his step-children, aged nine and six, respectively. She says that she came here from Poland, her marriage having broken down and she has nowhere that she could live there because her family home was, as she puts it, a small wooden house with two bedrooms where her parents and siblings live. The appellant's family cannot offer her any support as his parents and brother live in a one bedroom flat and only his mother is working. It would seem, although she does not say this, that, before she left Poland having separated from her husband, she and her husband and two children must have lived together in accommodation there. No doubt her then husband was looking after them. It is obvious that he would not be a possible source of looking after her, albeit one does not know whether the situation is the same in relation to the children. However, it is clear that there would be real hardship upon her and the children were the appellant to be extradited. He has served some time in custody here, before being released on bail, which included tagging, but he would still have to serve in Poland something certainly of at least 10 months, perhaps a little more, which is a not insignificant period.[4]The District Judge, in a substantial judgment, went into all these matters with considerable care. He decided that the appellant was clearly a fugitive from justice, and the contrary is not sought to be argued by Mr Hawkes. For that reason, section 14, lapse of time, was not and could not be relied on. Nonetheless, delay is undoubtedly a relevant factor, even if leaving the country was to avoid serving the sentence, when considering proportionality. However, the other side of the coin is that it is quite plain from the decision of the Supreme Court in HH that our obligations in complying with the European Arrest Warrant system mean that it would, certainly where considering service of a sentence is concerned, be rare for it to be considered to be disproportionate. One is entitled to have regard to the seriousness of the offending and to consider whether, were the offence to be committed within this jurisdiction, custody would have been a likely outcome.[5]So far as the offence itself is concerned, looked at in isolation, a non-domestic burglary, breaking into a garden shed and stealing property to the value of £50, would not have been an offence which would have crossed the custody threshold, certainly if committed by someone of good character. But this appellant was not someone of good character and it is perfectly possible that, having regard to his record, a court in this country could have well taken the view that custody was necessary, particularly as he was in breach of a suspended sentence at the time the offence was committed. The District Judge in the course of his judgment made some observations about the seriousness or otherwise of the offence. What he said was this:
"15. Notwithstanding that record [which he spells out] ... I stand by the view expressed in my paragraph 3 above [and that was that the offence would be regarded in this jurisdiction as being a minor offence not of great gravity and would not attract an immediate prison sentence unless there were very considerable aggravating circumstances], I consider, given the same broadly similar facts and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would be nevertheless be unlikely to impose an immediate custodial sentence. Even though the appellant had several previous convictions for burglary or theft, the last offence of dishonesty was five or six years earlier. More problematic was the fact that he committed the offence during the operational period of a suspended sentence. The court should activate a suspended sentence unless it would be unjust to do so. Nevertheless, in this hypothetical exercise, which presumably assumes the existence of independent children at the time of sentencing, it would be harsh in this jurisdiction to impose an immediate custodial sentence for a £50 burglary of a garden shed. Most courts would strive to avoid that outcome."
[6]While not dissenting entirely from that, it is important to recall that, albeit we know that the offence was breaking into a garden shed and stealing property to the value of some £50, we do not know the full circumstances of that offending -- we do not know whether there were indeed any aggravating features in the commission of that offence -- but, as I say, having regard to the fact that it was in breach of a suspended sentence and the appellant's record, I do not think custody was as unlikely as the District Judge appears to indicate. Nonetheless, it cannot be said that this was the most serious of offences.[7]So far as the effect on the family is concerned, and by that I mean the appellant and children, it clearly is indeed severe. There has been a long delay. It is not possible to say that there has been fault on the Polish authorities in failing to catch up with the appellant for so long, albeit Mr Hawkes makes the point that one of the purposes behind an Extradition Warrant is to alert other member states to the fact of a fugitive. However, it is clearly much more sensible, and saves the authorities in a requesting state from making unnecessary enquiries, to await knowledge of where he is likely to be and only to send a requesting warrant, which is after all what it is, to the state where it is believed he is likely to be. Accordingly, I do not think it is right for me to assume at all, and in fairness to Mr Hawkes he does not urge that I should, that the requesting state should be found to have been in any way negligent or culpable in the delay.[8]That leaves the harshness to the appellant's partner and children. That it is going to be harsh, I have no doubt, but harshness is not in itself, I am afraid, sufficient to justify the court saying that it would be disproportionate to return. The only matter that I would quarrel with the approach of the District Judge is in his saying that the time which he would be away for was not for very long and his actions would not have such an adverse effect because there is no indication that he would be likely to be spared any period of the 15 months, other than the period that he has spent in custody here, which he has to serve. The critical considerations that the District Judge set out are these: one, the starting point is to honour international commitments and return fugitives; two, the appellant is a classic fugitive; three, he has not led a blameless life since he has been here -- he has a number of matters against him, none of them of tremendous seriousness, but one for theft in 2007, a breach in 2010 and a conditional discharge for soliciting in July 2010, which perhaps does not say a lot for his relationship with his wife -- four, he has only recently entered into his current family relationship; five, he is not the sole or primary carer for his children and their mother can look after them whilst he is away; and six, he is not going to be away for very long and his absence will not therefore have such an adverse effect, other than in a financial sense, on the welfare of his children or be so damaging for them.[9]Having regard to the period for which he is likely to be away, and having regard to the factors which have to be taken into account, in my judgment, harsh though it is, and it may be that this is something of a borderline case, it does not, I am afraid, come down in favour of deciding that his return, in all the circumstances, would be disproportionate.[10]Accordingly, largely for the reasons given by the District Judge, I am afraid this appeal must be dismissed.[11]The usual order?[12]MR HAWKES: I am very grateful, my Lord.