Fraczyk v District Court In Koszalin, Poland [2014] EWHC 4582 (Admin)

Case No CO/4304/2014[2014] EWHC 4582 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 24 th November 2014
The Strand
London
WC2A 2LL
B e f o r e:
SIR STEPHEN SILBER
(Sitting as a Judge of the Queen's Bench Division)
Between
KATARZYNA FRACZYKAppellant
B E T W E E N:
- v -
Between
DISTRICT COURT IN KOSZALIN, POLANDRespondent
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court)
Mr Benjamin Seifert (instructed by J D Spicer Zeb, London EC4A 3DE)appeared for AppellantMr D Sternberg (instructed by CPS Extradition Unit)appeared for Respondent
J U D G M E N TMonday 24 th November 2014SIR STEPHEN SILBER:Introduction
[1]Katarzyna Fraczyk appeals a decision of District Judge Coleman, made on 12th September 2014, ordering her extradition to Poland on a conviction European Arrest Warrant, issued by the District Judge in Koszalin on 18th November 2008 and certified by the Serious Organised Crime Agency on 21st March 2011, to serve four sentences of imprisonment: first, one of 18 months (less two months and 16 days) imposed on 14th August 2003 for an offence of theft committed between 10th and 11th January 2002; second, a sentence of 15 months' imprisonment imposed on 25th September 2003 in respect of three offences of theft and one offence of perverting the course of justice committed in July 2002; third, a sentence of six months' imprisonment for an offence of perverting the course of justice committed in May, June and November 2002; and fourth, a sentence of 12 months' imprisonment imposed on 19th July 2007 in respect of two offences of obtaining property by deception, namely, using a false identity to obtain a loan, committed in December 2006.[2]The basis of the appeal is that there has been a substantial delay and that extradition would constitute an infringement of the appellant's rights under Article 8 of the European Convention on Human Rights.[3]At the outset of the hearing, Mr Seifert, counsel for the appellant, applied for an adjournment. He relied on two different but related grounds. First, it was said that it had not been made clear by the Polish authorities whether these sentences were concurrent or consecutive; and second, that the appellant was entitled to credit for being subject to a curfew for four hours each night for five months. The application was opposed by Mr Sternberg, on behalf of the Judicial Authority, on the basis that, even if the submissions on the appellant's behalf were correct, the appellant still had a substantial custodial term to serve, because even in relation to the sentence of 18 months she could only have served two months, and she would have received some credit for the four hours' curfew for five months. That would clearly leave a sentence of more than 12 months to serve. In those circumstances there did not seem to me to be any purpose whatsoever in adjourning the case.

The hearing before the District Judge

[4]The appellant first appeared before the District Judge on 28th June 2014. She was remanded in custody, but subsequently was granted bail on 4th July 2014. Her extradition was ordered on 12th September 2014.[5]She gave evidence at the hearing. The District Judge found that it would not be disproportionate to order the appellant's extradition. She made a number of relevant findings: first, that the appellant was aware of each set of proceedings; second, that the appellant was, at best, a mistaken witness, but in parts she was a "blatantly untruthful witness who lacked credibility"; third, she was a classic fugitive who fled Poland when it became clear that she was required to serve the sentences; fourth, she had been out of trouble and had worked in the United Kingdom, which was to her credit; fifth, that there was no culpable delay; sixth, she was required to serve four years' imprisonment; and finally, that this was a persistent course of conduct. The District

Judge explained in her decision:

"I have carried out the balancing exercise. On the one hand the requested person is convicted of seven offences and is required to serve four years in prison. This is not minor offending. It may well be that each individual case is not of the most serious but there has been a persistent course of conduct in Poland which has resulted in the outstanding prison sentence. The [appellant] is a fugitive. There is a constant and weighty public interest in honouring international treaties. On the other hand the [appellant] has established a life in this country; she is in a stable relationship with her partner, has worked and paid taxes and has stayed out of trouble. The offences were some time ago. My decision is that the circumstances of this [appellant] and her partner come nowhere near the very high threshold which would be required before I could say that to extradite her would amount to a disproportionate interference with her article 8 rights. …"
The District Judge therefore made the order for the appellant's extradition. The application to adduce further evidence[6]The appellant has sought to adduce some additional evidence which was not produced before the District Judge. First, there was a National Insurance document dated 15th January 2008, and various documents which, she says, shows payments to one of the victims.[7]To my mind, this evidence is inadmissible because it fails to meet the test set out in Hungary v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324, as first it has not been shown that the evidence was not available for the hearing in the Magistrates Court, second it could not have been obtained with reasonable diligence and third it would be decisive. It is also clear that there would have to be a witness statement put in explaining why it was not adduced earlier. Thus, I reject the admission of that evidence. However, as I will explain, even if that evidence were to be adduced, it would not lead to me changing the decision at which I have arrived.

The substantive challenge

[8]The grounds which have been relied by the appellant on are essentially her good character, the delay, and that she has been subject to a curfew in this country.[9]On the question of delay, it is pointed out that the National Crime Agency appears to be culpable because, having received the European Arrest Warrant on 20th December 2009, the warrant was not reviewed until August 2010, in spite of the fact that the appellant had been living her for at least two years. It is then said that there appeared to be problems with the translation of the warrant, and there was a further delay until March 2011, when it was certified. It was difficult to see why this delay took place. Thus, it was said that this shows a lack of urgency which undermines the importance which is attached to it.

Discussion

[10]There is a witness statement which shows that the delay in this country was not culpable. However, even if it were, I am quite satisfied that this is a case where the delay and the appellant's good character do not permit this appeal to be allowed. It is noteworthy that there are no children involved. This is not a case where the appellant's Article 8 rights, relying on her relationship with her partner, can outweigh the public interest in extradition. The offences and sentences for which her extradition is sought are not trivial. It is worthwhile remembering what Lord Judge CJ said in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338. He referred to the international obligations and then said:
"132. … When resistance to extradition is advanced, as in effect it is in each of these appeals, on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, 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. …"
This case is much stronger for the Judicial Authority, because there are no children involved.[11]In my view, the District Judge was entitled to conclude that the appellant failed by a very long way in showing that it would be disproportionate to allow extradition, notwithstanding the able and careful submissions made on her behalf by Mr Benjamin Seifert, for which I am grateful. The appeal must be dismissed.