Fabczak v Regional Court In Warszawa, Poland [2014] EWHC 3693 (Admin)

[2014] EWHC 3693 (Admin)Case No CO/3844/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 17 October 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAKE
Between
SZYMON FABCZAKAppellantv
Between
REGIONAL COURT IN WARSZAWA, 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)
Miss K O'Byrne (instructed by Hodge Jones and Allen) appeared for AppellantMiss C Brown (instructed by the CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE BLAKE: This is an appeal from a decision of District Judge Zani delivered on 11 August 2014, whereby he ordered the Appellant's extradition to Poland on an accusation European Arrest Warrant to face trial in respect of an allegation of obtaining a bank loan in the sum of PLN 28,000 (or £5,449) by deception, namely presentation of a false certificate of employment.[2]This offence is said to have been committed between 26 and 29 January 2009. The Appellant was then aged 28, he had an estranged wife and two children in Poland and on 11 February 2010 he was ordered by a Polish court to pay child maintenance in the sum of PLN 2,200 per month but he apparently failed to do so. It would appear that he was not present for those proceedings as he had left Poland for the United Kingdom in about August 2009. He has been resident here ever since. He presently works part-time in a factory in Gateshead, for which he receives £150 a week in wages, and on his coming to the United Kingdom he immediately formed a personal relationship with a woman he had known in Poland who has been his present partner with whom he has been for some five and a half years. She gave birth to their child, O, in September 2011. O is now three years old, but just falls on the wrong side of the year to be offered a nursery place, so O's mother, the Appellant's partner, stays at home to look after him and that is likely to be the position for the next 12 months. She has made a witness statement in which she describes the Appellant as being an "active father". He has hitherto worked part-time and spends other time with the child performing tasks and interacting with him and the child is fond of the father and well-connected with him.[3]Meanwhile, back in Poland, the Appellant's former wife lodged a complaint as to the non-payment of the child maintenance. This led to two charges that were framed as criminal offences in Poland of non-payment of those maintenance orders. Whilst those were being investigated and proceeded with, the prosecutor became aware of the deception offence and in August 2012 sought a measure of preventive detention in respect of that allegation. From that history it would appear, and the court in Poland in supplementary information has made it clear, that the Appellant has never been arrested and questioned or charged in respect of the bank loan offence. He was never required to reside at an address known to the police and is therefore in no sense a fugitive from Polish justice in respect of this matter.[4]In April 2013 the Polish court issued a European Arrest Warrant for all three offences. The warrant was certified and the Appellant was arrested in August 2013. He has been on bail throughout these proceedings and he was required to surrender a cash surety of £1,000. It would appear that since October 2013 he has been on an electronically monitored curfew between 8.00 pm and 4.00 am, that is to say some eight hours a day. It has been pointed out that that is one hour short of the period that would normally count in this country to receive a deduction of half a day per electronically monitored curfew. There is some debate as to how far the Polish authorities are obliged to take that into consideration if a custodial sentence is eventually to be served, but it does amount to a factor to show that he has already had a significant curtailment of his liberty for the period of one year whilst these proceedings have been pending.[5]The Appellant told the District Judge that he was unaware of the bank loan offence until his arrest in August 2013 and he also indicated that since his arrest he has been, saving up money from his modest earnings, to pay off the £5,449 loan. The information that he gave the judge, that he had in turn been told by his Polish lawyer, is:(1) that if the loan is paid off he will not receive a sentence of immediate custody in Poland;(2) payment off requires payments of the complete sum in one go rather than in instalments. The information before the judge was that by the time of the hearing he had paid off £3,193 of the total debt, leaving some £2,300 yet to pay off. He indicated that it had taken some 11 months at the present rate of employment for him to save up the £3,193 and that he could not really advance that rate of savings whilst supporting his child and partner and paying the rent and feeding the family. Obviously, he gets the child benefit and one or two other benefits relating to children in this country.[6]It was accepted that the offences of failing to pay the child maintenance for his previous children in Poland are not extradition offences and he has been discharged in respect of them. So the position is that his return is now sought for a single offence of obtaining by deception, committed some five and a half years ago, of which he only became aware that he was being accused some 14 months ago.[7]The sole issue in this case is Article 8 and whether the impact of extradition on his partner and child would mean that his extradition is disproportionate in all the particular circumstances of the case. This, of course, is not an unusual submission.

Judge Zani said the following:

"(1) . . . What you have to understand is the vast majority of people who stand where you stand now end up being returned to attend trial. That is the whole point of us having treaties with other countries. If we wanted somebody back from Poland we would hope that would be treated sympathetically. Each case is decided on its own facts, no two cases are the same. There is no test of exceptionality. I have to take into account the rights of you to have a family life, your partner and child and I do take those rights into account . . . (2) . . . When I asked why your partner could not go and live with your parents whilst she worked I did not find your answer to be very satisfactory. You said that she has only met them for a total of five days and they are strangers. (3) Furthermore you have £1,000 security which would be released to your partner upon your surrender or towards the outstanding compensation for the offence. As I mentioned earlier this court cannot delay proceedings to allow a warrant to be compromised. You have told me it would take you some months to raise the further monies needed to realise the compensation and you would be very likely to get a suspended sentence."
[8]He then reached his conclusions, recognising there is hardship but that is not enough and concluded that deportation would be proportionate.[9]It is now submitted that he was wrong to do so. I approach this appeal on the basis that the judge below has the advantage of seeing and hearing the parties and his primary findings of fact should be respected. If the court below has properly directed itself and there has been no material change of circumstances, this court does not set aside the decision on proportionality and substitute its own conclusions, unless it reaches the conclusion that the judge was wrong. I apply the approach in the Supreme Court in Re B [2013] UKSC 33.[10]However, before this court Ms O'Byrne for the Appellant submits that the facts have shifted since the judge's decision. She has sought to adduce a witness statement from the Appellant's mother, the absence of which was commented upon by the judge when he explored the hypothesis that in order to reduce the hardship of separation between father and child the partner and child could return to Poland. The judge thought that the Appellant's mother could look after the child, freeing the partner to obtain employment in Poland. The witness statement from the mother, obtained very recently, indicates that there are problems with that scenario. She lives in a house which is split into two flats. She and her husband, who are in their 60s, live in the downstairs flat which is a one bedroom flat with a kitchenette. In the upstairs flat her daughter, born in 1983, lives with her husband and two children. The grandchildren of the Appellant's mother through her daughter are aged four and five months old. The daughter and her husband live in one bedroom and the children in another in that flat. Unfortunately, her son-in-law, the daughter's husband, suffers from cancer and is unable to work, the daughter lost her job when she became pregnant and the Appellant's mother herself, at 62, has rheumatoid arthritis and heart problems and has some difficulties handling even her five-month old child. The picture that emerges is of serious overcrowding problems, which is indeed something to which the Appellant did refer in his evidence but he did not have the supporting evidence to substantiate it.[11]I accepted the evidence without opposition from Miss Brown, given that it does relate to the family circumstances in Article 8 where matters need to be updated and the court is concerned, principally in this case, with the impact of extradition upon a child whose welfare is a primary, though not decisive, consideration. In A v Hungary [2013] EWHC 3132 the Divisional Court, with Moses LJ presiding, following the approach in HH [2013] 1 AC 338, said that in the context of removal of a sole carer there needed to be concrete evidence as to the practical arrangements made for the child's care. Although this case is not concerned with the removal of a sole carer, the authority identifies the need for reliable information as to how the impact of removal on a child can be assessed. I understand that the judge was looking precisely at the practicalities of the return of the family to Poland so they could diminish the impact of separation of the child in the event of trial and a possible remand in custody and/or prison sentence in the event of conviction with the full value of the loan remaining unpaid.[12]In those circumstances I have re-examined the question of proportionality in the light of the evidence as it now exists. In my judgment, it is clear from the evidence given by the Appellant and the partner below and the new picture that:(1) extradition would, at this stage in this child's life, have a significant impact upon the practical arrangements enabling the partner and child to live in the UK and rent private accommodation if they are deprived of their principal breadwinner, the only person in employment, as well as the lack of support and the emotional attachment that a father can provide to his child;(2) the option of returning to Poland does indeed have significant difficulties in terms of overcrowding, for the reasons given by the Appellant's mother;(3) the child has spent all his life in England and neither mother nor child are familiar with his grandparents; they apparently have only met once over a five-day visit to England;(4) it was to some degree speculation that the mother could obtain employment back in Poland, given the state of the employment market in that country. That is, of course, one reason why a number of people from Poland seek to exercise their Treaty rights to come to the United Kingdom.[13]Although this is not a case where the father is the primary carer of the child, I conclude, therefore, that his extradition, leaving the child and carer in England, would have significant adverse effects upon the child.[14]As against that there is, of course, the public interest in cooperation of the Polish authorities in the pursuit of crime. That, at least, is a constant, although that does not avoid the need for assessment of each case on its own facts. In assessing the strength of the public interest in interfering with the private and family life, however, in my judgment there are three relevant factors, none of which appear to have been taken into consideration by the judge below:(1) the offence of fraud, whilst not trivial, could not in all the circumstances be described as a serious offence. By a UK comparison it is unlikely to have resulted in a sentence of immediate deprivation of liberty and it seems, even in Poland, if the loan had been repaid it would result in a suspended sentence. Over 50 per cent of the sum of the loan has been gathered together, though I accept not yet paid, and, of course, if he is not extradited the £1,000 surety could be directed to that end and there would be an incentive in the Appellant completing the repayment process within the next few month in order to avoid having this matter hanging over him in the event of returning to Poland for family reasons. The Appellant is not to be punished for his limited financial resources; this is clearly a family of modest means.(2) He has been on the electronically monitored curfew for 12 months. This is not quite long enough to amount to an automatic deduction in English sentencing terms, but nevertheless is a significant restriction of his liberty for some period of time.(3) He is not a fugitive from justice and this materially affects the weight to be given to his family life established lawfully in this country, without any breach of any obligation to the Polish state in respect of this offence. I consider this is a weighty factor in this case and although the five-year period of delay is, comparatively speaking, not long, it is something to be weighed in the balance. It may very well be that the fact that he was not a fugitive does indeed distinguish this case from the many hundreds of lookalike cases that Judge Zani must have dealt with in the City of Westminster Magistrates' Court.[15]Making the balance on the information now available and with the benefit of assistance from Miss Brown for the judicial authority and Ms O'Byrne for the Appellant, I have concluded that extradition would be disproportionate interference with family life and to the welfare of the child in this case and this appeal is accordingly allowed.

Cited in 1 later judgment