Grewling v Circuit Court of Gorzow Wielkopowski, Poland [2013] EWHC 558 (Admin)

Case No CO/12522/2012[2013] EWHC 558 (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
SEBASTIAN GREWLINGAppellantv
Between
CIRCUIT COURT OF GORZOW WIELKOPOWSKI, 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 B Cooper (instructed by EBR Attridge LLP) appeared for AppellantMiss H Hinton (instructed by Crown Prosecution Service) 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 a decision of District Judge Evans given on 20 November 2012 directing the appellant's return to Poland to serve a 2 year sentence which had been imposed for a number of offences of supplying mainly cannabis but some quantities of amphetamine. The amounts involved in the various supplies are not that great. On the other hand, there were some 17 and the wraps in question were in the form of 50 or 70 grams each, and at least one of the supplies involved 120 wraps of cannabis and another 50. So the quantities were by no means small. The sentence of 2 years, which was a sentence reduced on appeal from one of two and a half years, is on the face of it not at all excessive. Indeed, were the offending to have taken place in this country there would be no question but that the custody threshold would have been passed and a sentence such as was imposed is not one which is in any way out of the realm of reasonable so far as this country is concerned. Not that that is in itself a matter into which it is appropriate for this court to go into in any detail. As I say, suffice it to say that this was a series of offences which quite plainly passed the custody threshold.[2]The offences themselves were committed between September 2003 and February 2004. The original sentence, as I say, was one of two and a half years but on 21 May 2006 the Court of Appeal reduced the sentence to one of 2 years overall. The appellant, having learnt of his partial success on appeal, because he had hoped that the sentence would be suspended, left Poland in order to avoid serving the sentence. He admitted before the District Judge that he left because he was scared of going to prison. The District Judge decided that he was a classic fugitive and he left in order to avoid having to serve his prison sentence. That is undoubtedly correct.[3]He came to this country, he has lived here ever since and there is no suggestion that he has in any way misbehaved, and certainly there is no question of offences having been committed. He met the lady whom he has now married in 2009. They married in March 2011. In fact, she was already pregnant by that time. They now have two children. One is now some 21 months or thereabouts old, the other was born on 18 October 2012 and so is now some 3 months or so old. In addition, he has bought his home on mortgage. He lives in north Wales, and has a mortgage which involves £645 a month, and a loan from his bank which he was repaying at the rate of £135 a month. He has, obviously, financial commitments. His wife was working when she was here, she is Polish too, but because of the children it is obvious that if she has to look after the children she cannot work full time.[4]In addition to those commitments, his grandparents in Poland are elderly and the grandmother suffered a stroke in June 2012 and she now requires the full-time assistance of a carer. His grandfather (who is 86) and his father (who is 57), live with them and his father, unfortunately, suffers from multiple sclerosis and so he has problems of his own. The appellant contributes some £200 a month to the costs of looking after his grandmother and his father. Accordingly, were he to be extradited and unable to work, the effect upon his grandmother and father and the effect upon his wife and child are obviously going to be serious. There is a real risk that the mortgage and loan will not be able to serviced and that may lead to the loss of the present accommodation. In addition, the children are, albeit very young still, becoming of an age when, particularly with the elder child, the presence of a father is important.[5]There is no question but that to return the appellant would create considerable hardship. The question is whether in all the circumstances that hardship makes it disproportionate to return him, having regard to the effect not only on him but also on his wife and his children, and to an extent his parent and grandparents in Poland. The court therefore has to consider, and the District Judge had to consider, whether it was proportionate within the term of Article 8 to return this appellant, having regard to what has transpired since he left Poland to avoid the sentence of imprisonment.[6]The District Judge considered the relevant authorities. The main authority is the decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (in fact now reported in [2012] 3 WLR at page 90). That case focused on the effect on children of extradition of a parent, or indeed parents, and the point there made was that the rights of children were "a" primary consideration. I note that in Stafford v District Public Prosecutor's Office, Dordrecht [2012] EWHC 2869 (Admin) I am recorded as having said that it was "the" primary concern. That was an error in that judgment and the "the" should be replaced by an "a".[7]It clearly is an important, and indeed a very important, consideration but one has to consider the purpose behind, and the obligation upon, the requested State in relation to extradition. That has been made clear as a highly relevant consideration in the judgment of Lord Judge (Chief Justice) in HH at paragraph 132, in which he made the point that the "fulfilment of our international obligations remains an imperative", and he said that:
"it should only be in very rare cases that extradition may properly be avoided if, 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 nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity."
Despite the gallant attempts of counsel to suggest that this series of offences would not merit custody here, I have no doubt that they would, and so what Lord Judge there says is a matter that must be taken well into account.[8]Having considered the matter and the evidence before him, the District Judge summarised, in my view correctly, what he described as the critical considerations. He set them out thus:
"(1) The starting point is to honour international commitments and return fugitives. (2) The RP [requested person] is a classic fugitive. (3) The RP has led a blameless life since he has been here. (4) He has only relatively recently entered into his current family relationship. (5) He is not the sole or primary carer for his children and their mother (his wife since March 2011) can look after them whilst he is away. (6) He is lucky that his mother (48), his uncles Paul (52) and Ted (55) and his aunt Helena (60) all live quite close to his family home and between them they can provide practical support for his wife and children. (7) He is not going to be away for very long [well, 2 years is perhaps quite a substantial period] and his absence will not therefore have such an adverse effect (other than in a financial sense) on the welfare of the children or be so damaging for them."
Hardship, yes, but damage that crosses the threshold in the circumstances to justify a finding that return would be disproportionate is not such a clear matter. Reliance is placed on the delay, some 6 years or more now, since the 2 year sentence was imposed on appeal, and it is suggested that there has been dilatoriness in the Polish authorities in pursuing this matter. There is no direct evidence before me, nor was there before the District Judge, to indicate how it came about that there was not an earlier EAW. However, it is, of course, highly material that the appellant had left Poland in order to avoid being sent to prison, and there is no indication that the authorities knew where he had decided to go. Certainly there is no suggestion that he informed the authorities where he was. Indeed, he undoubtedly would not want that information to be obtained because he must have been aware of the possibly of a request for his extradition.[9]I have no doubt, as I say, that there is hardship. These children are very young. He will no doubt be able to apply to the Polish court, relying on the lapse of time, for them to consider that the time that he needs to serve may not be all of 2 years. I appreciate that there is a real risk that the home may not be able to be kept for the time being. However, he chose to escape his obligations in Poland. He chose to come here to avoid serving the sentence. That has now caught up with him. While, as I say, I appreciate the real hardship, I am afraid, in my judgment, the District Judge was not wrong in concluding as he did that return would not be disproportionate.[10]In those circumstances this appeal must be dismissed.[11]You want the usual order, I imagine?[12]MR COOPER: I am obliged.

MR JUSTICE COLLINS: Very well.