Pogorzelski v Regional Court in Warsaw, Poland [2015] EWHC 1076 (Admin)

Case No CO/6038/2014[2015] EWHC 1076 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 24 th April 2015
Before
MR JUSTICE HOLROYDE
Between
GRZEGORZ POGORZELSKIAppellantREGIONAL COURT IN WARSAW, POLANDRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Natasha Draycott (instructed by Kaim Todner Solicitors Ltd) for AppellantMiss Hannah Hinton (instructed by Treasury Solicitor) for RespondentHearing Hearing dates: 25 th February, 2015
JudgmentMr Justice Holroyde :
[1]The Regional Court in Warsaw issued three European Arrest Warrants against the Appellant. He was arrested in this country, and on 22nd December 2014, in the Westminster Magistrates’ Court, District Judge (Magistrates’ Courts) Tempia ordered his extradition to Poland. The Appellant appeals against that order.[2]I am grateful for the helpful submissions, both written and oral, of counsel Miss Draycott for the Appellant, and Miss Hinton for the Respondent. I reserved judgment so that I could give further consideration to those submissions, and to the authorities which had been cited to me. I will not mention every point which was argued, but I have taken them all into account in reaching my decision.[3]Each of the three European Arrest Warrants issued against the Appellant was a “conviction” warrant. The relevant facts can be summarised as follows.[4]The Appellant was born on 12th March, 1977, and so is now 38 years of age.[5]On 13th June 2002 the Appellant, acting together with another man, stole mobile phone from a shop (“Offence 1”). He pleaded guilty and was convicted of that offence, and on 12th August 2005 he was sentenced to one year’s imprisonment, suspended for 4 years.[6]Less than six months into the operational period of that suspended sentence, the Appellant reoffended. On 16th January 2006, again acting together with others, he stole a laptop computer from a company (“Offence 2”).[7]On two occasions in August 2007 (and therefore still within the operational period of the suspended sentence imposed for Offence 1) the Appellant committed offences of intentional dealing in stolen property by assisting another man to sell a stolen mobile phone and a stolen laptop computer (“Offence 3”).[8]On 7th March 2008 the Appellant left Poland and came to the UK.[9]On 27th November 2008 the Appellant was convicted of Offence 2, and sentenced to one year’s imprisonment, all of which remains to be served. That sentence became enforceable on 2nd September 2009.[10]On 11th September 2009 the District Court in Warsaw activated the suspended sentence which had been imposed for Offence 1. Taking into account the short time he had spent in custody, he has 11 months 29 days still to serve.[11]On 25th November 2010 the Appellant was convicted of Offence 3.[12]On 4th May 2011 the District Court in Warsaw issued a European Arrest Warrant in relation to Offence 1 (“EAW 1”). That warrant was certified by the National Crime Agency on 4th July 2011.[13]On 13th July 2011 the Appellant was sentenced to a total of 18 months’ imprisonment for Offence 3, of which he has 8 months 28 days still to serve.[14]On 8th August 2011 the District Court in Warsaw issued a European Arrest Warrant in relation to Offence 2 (“EAW 2”). That warrant was certified by the National Crime Agency on 6th May 2012.[15]On 14th March 2013 the District Court in Warsaw issued a European Arrest Warrant in relation to Offence 3 (“EAW 3”). That warrant was certified by the National Crime Agency on 11th September 2013.[16]Whilst in this country the Appellant initially lived with his mother in Peterborough. After about 6 months he and his partner left that address and moved to their present home in Lancashire. The couple have two children: a boy born in March 2009, now aged 6; and a girl born in November 2010, now aged 4.[17]The Appellant was arrested pursuant to EAW 2 on 2nd July 2012, and further arrested pursuant to EAW 3 on 19th May 2014.[18]At the hearing in the Magistrates’ Court, DJ Tempia received in evidence a bundle of documents, including further information provided by the requesting authority, and heard oral evidence from the Appellant. His evidence was to the effect that he was present when convicted and sentenced for Offence 1, but was not present at his trial for Offence 2 and had no recollection of any proceedings in relation to Offence 3. He accepted that he had come to this country whilst still subject to his suspended sentence. He said he believed the only requirement of his suspended sentence was that he must not reoffend. He said that he had told his probation officer in Poland that he was coming to this country, had given a contact address which was his mother’s address in Peterborough, and believed that the probation officer would pass on that information to the police and the court. The Appellant told the court that he had lived openly in Morecambe, and that the Polish Consulate in Manchester had made contact with him there (even though he had not given that address to the authorities) and had corresponded with him in 2009 and 2010 about a matter in which he was a witness. He also said that he had been in contact with the Polish court in 2010. I have seen copies of a number of envelopes which I take to be evidence of the court in Warsaw corresponding with the Appellant at his Morecambe address in 2010.[19]As to his personal circumstances, the Appellant gave evidence that he is the main breadwinner for his family. His partner works part time, and would not be able to continue in that employment if she had sole care of the children. She has subsequently provided a statement, which was relied on by the Appellant before me, to the effect that she does not hold a driving licence and is dependant on the Appellant to take the children to their school, which is a considerable distance from their home. Both she and the Appellant say that the children would suffer greatly if the Appellant is extradited to Poland and required to serve his sentences there.[20]Both in the lower court, and in his grounds of appeal, the Appellant has raised three issues. First, as to EAW 1, he relies on section 14 of the Extradition Act 2003 and submits that it would be unfair and oppressive to extradite him because so much time has elapsed. Secondly, as to EAW 3, he relies on section 20 of the 2003 Act and submits that he was convicted in his absence and does not have the necessary guarantee of a retrial if he is extradited. Thirdly, in relation to all three EAWs, he relies on his and his family’s Article 8 rights, and submits that his extradition pursuant to all or any of the warrants would be a disproportionate interference with those rights.[21]Before referring to the relevant statutory provisions, and then considering the three grounds of appeal in turn, I remind myself of the approach I must take. The right of appeal against a decision to order extradition arises under section 26 of the Extradition Act 2003. This is not a case in which the Appellant advances his appeal on the basis of a fresh issue, or fresh evidence, that was not available at the hearing below. Accordingly, by section 27(2) of the 2003 Act, the High Court may only allow the appeal if the conditions in subsection (3) are satisfied:
“(3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.” (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge.”
[22]In Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) a Divisional Court considered how the court should approach an appeal in which there was a challenge to a District Judge’s decision on an Article 8 proportionality issue. Aikens LJ referred to a decision of Beatson LJ in an earlier case and said (at paragraph 66):
“In our view Beatson LJ was correct in suggesting that it is the “review” approach that should be taken by this court when it is considering an appeal from the conclusion of the District Judge on an issue of Article 8 “proportionality” in an extradition case. Under section 27(3) of the EA this court can only allow an appeal if it concludes that the “appropriate judge” should have decided a question before him at the extradition hearing differently. In this context the relevant “question” is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family's) Article 8 rights. If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of “fresh evidence” arises on an appeal on “proportionality”, a successful challenge can only be mounted if it is demonstrated, on review, that the judge below (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse. ”
[23]It is not disputed that each of the offences of which the Appellant was convicted is an extradition offence as defined in the 2003 Act. DJ Tempia was accordingly required to proceed under section 11 of the Act. That section requires the court to consider whether extradition is barred by any of a number of specified grounds listed in section 11(1), one of which is “(c) the passage of time”. The section then provides as follows:
“(3) If the judge decides any of the questions in subsection (1) in the affirmative he must order the person’s discharge. (4) If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20.”
[24]As to the circumstances in which the passage of time may bar extradition, section 14 of the 2003 Act provides as follows:
“A person’s extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have— (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it).”
[25]In relation to that section, it is clear that the burden lies on the requested person to prove on the balance of probabilities that it would be unjust or oppressive to extradite him: see Harvey v Portugal [2007] EWHC 3282 (Admin). That is a high threshold: it is not enough for the requested person merely to show that extradition would result in hardship. The focus must be on the effect that the passage of time has had, and a causal link must be shown between any delay and the alleged oppression. It is also clear that delay in extradition proceedings which has been caused by the requested person fleeing the requesting country, or concealing his whereabouts, cannot be relied upon by him in support of an argument that extradition would be unjust or oppressive: see Kakis v Government of Cyprus [1978] 1 WLR 779 and Gomes v Trinidad and Tobago [2009] UKHL 21. In that regard, the burden is on the requesting authority to prove to the criminal standard that the requested person is a fugitive.[26]Case law also establishes that in considering whether extradition would be unjust or oppressive the court should take into account the length of time which has elapsed, the seriousness or otherwise of the offence(s) concerned and the effect on the family of the requested person.[27]Section 20 of the Act provides, in relation to conviction warrants, as follows:
“(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence. (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21. (5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21. (7) If the judge decides that question in the negative he must order the person’s discharge. (8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights— (a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required (b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
[28]That section was enacted to give effect to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant. In Bicioc v Romania [2014] EWHC 628 (Admin) Mitting J considered the Framework Decision and the section and reached the following conclusion (with which I respectfully agree) at paragraph 15 of his judgment:
“I am satisfied that the proper interpretation of section 20(3) of the 2003 Act requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself. It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable.”
[29]Mitting J went on to note that the effect of the District Judge’s findings, on the facts of that case, was that Mr Bicioc – “… did not deliberately absent himself from his trial. What happened was that he made it difficult or impossible for the prosecuting authorities to serve him with the documents which would have notified him of the fact, date and place of the trial. If he had been entitled unequivocally to a right of retrial or to have his case reheard on the merits of the appeal his extradition could have been ordered.”[30]As to section 20(5), it is for the requesting authority to prove, to the criminal standard, that the question is to be answered in the affirmative. However, Ouseley J in Malinowski v District Court of Legnica, Poland [2012] EWHC 2618 (Admin) followed an earlier decision of Cranston J in holding that – “… evidence that Article 6 has been incorporated into the law of the requesting state and that that state recognises the case law of the European Court of Human Rights supports a finding that the requirement of section 20(5) of the 2003 Act is satisfied. … the requested person must adduce some evidence at least which raises an issue that the guarantee in section 20(5) might not be met in the requesting state. It is not for the requesting state to prove affirmatively in the absence of such evidence that the guarantee will not be met.” I respectfully agree with that decision.[31]Where section 20(5) is satisfied, the courts of the requesting authority are entitled to regulate their own proceedings by imposing their own rules, and the existence of procedural requirements does not remove the entitlement to a retrial: see Nastase v Office of the State Prosecutor, Trento, Italy [2012] EWHC 3671 (Admin).[32]Section 21 provides, in part, as follows:
“(1) If the judge is required to proceed under this section (by virtue of section . . . 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42). (2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.”
[33]I turn to the grounds of appeal.[34]In relation to the first issue identified in paragraph 20 above, DJ Tempia’s findings at paragraphs 36 and 41 of her judgment were to the following effect. She rejected the Appellant’s evidence that he had told his probation officer that he was going to the UK and had left his mother’s address in Peterborough as a contact address. Even on that account, he had not reported his move to his address in Morecambe; but in any event, the District Judge accepted the evidence of the requesting authority that the Appellant had not in fact informed the court or his probation officer of any address in the UK. However, the District Judge drew the inference that the Appellant was (falsely) claiming that he had given that information to his probation officer because he knew that he was under an obligation, as a condition of his suspended sentence, to notify the court of any change of address. She therefore rejected his evidence that he believed that the only condition of his suspended sentence was that he must not commit any further offence. In those circumstances the District Judge found that the Appellant was a fugitive and that accordingly, whilst delay remained relevant to the Article 8 issue, the Appellant could not rely on the passage of time as a bar to extradition.[35]That finding is challenged by Miss Draycott. She relies on the following factors to support her submission that the District Judge was wrong to find that the Appellant was a fugitive in relation to EAW 1: i) The Appellant’s evidence that, whilst he knew he had been made subject to a suspended sentence, he was not aware until these extradition proceedings that the sentence had been ordered to take effect, and not aware why such an order had been made. ii) The Appellant’s evidence that the only condition of his suspended sentence was that he should not reoffend, and that in any event he had told his probation officer of his intention to go to the UK and left a contact address. iii) The absence of any documentary evidence to the effect that the Appellant was not permitted to leave Poland during the operational period of the suspended sentence. iv) The fact that the Appellant was engaged in correspondence with the Polish consulate in 2009-10, and later with the court in Warsaw, from which it could be inferred that the Polish court knew where he was but took no steps to require him to return to serve his sentence.[36]I do not find those points persuasive, and I cannot accept the submission. The Appellant was admittedly present when convicted and sentenced for Offence 1. He knew that he had committed further offences during the operational period of the suspended sentence, and must therefore have known not only that he would be liable not only to punishment for those offences but also that he would have to face the consequences of his breach of his suspended sentence. The District Judge found, on the totality of the evidence, that the Appellant knew he was under an obligation to inform the Polish authorities of his address in the UK, and had failed to do so She was entitled to make that finding. I can see no reason to differ from her in that respect: on the contrary, her finding seems to me to be correct.[37]Once that finding is made, then in my judgment the conclusion that the Appellant was a fugitive follows inevitably. On his own account, the Appellant was living in Morecambe, not Peterborough, and had not told the Polish court of his address in Morecambe. The fact that the Polish Consulate appears to have known his address in 2009 or 2010 does not assist him: there was and is no evidence that the Polish consulate would necessarily share information with the Regional Court in Warsaw, or be aware of persons who were wanted by that court, and the Appellant cannot excuse his own failure by pointing to the possibility that a particular line of enquiry might have enabled the Polish court to locate him. It is not suggested that there was anything in the correspondence between the Appellant and the Consulate which could have caused, or did cause, the Appellant to believe that he was not wanted by the court in Warsaw.[38]Although the judgment is not explicit about this, it appears from paragraph 46 that the District Judge accepted the Appellant’s evidence that he had been in contact with the Polish court in 2010. She observed that it may well have been that contact which alerted the Polish court to the fact that he was in the UK. The nature or purpose of this correspondence does not seem to have been explained in any detail before District Judge Tempia, and no further explanation of it was given before me on this appeal; but it appears that the Polish court first entered into that correspondence in about 2010, and again the Appellant does not suggest that there is anything in it which caused him to believe he was not a wanted man.[39]The District Judge drew a further inference that the suspended sentence was activated because the Appellant had failed to tell his probation officer of his new address in the UK. With respect to the District Judge, I do not regard that as a safe inference: bearing in mind the date when the suspended sentence was activated, it seems to me that it is at the very least an equally possible explanation that the commission of a further offence led to the activation. However, that is not a point about which any conclusion needs to be reached, because it does not affect the basic finding that the Appellant knew he was under an obligation to report his new address, but failed to do so.[40]It follows that the Appellant cannot rely on the passage of time in respect of EAW 1, and the foundation of his first ground of appeal therefore falls away. The Appellant cannot show that his extradition in relation to Offence 1 would be unjust or oppressive, and there is therefore no basis on which it could be said that the District Judge ought to have decided this issue differently. I accordingly reject that ground of appeal.[41]On the second ground of appeal, the District Judge had evidence – in the form of further information provided by the requesting authority on 20th October 2014 – that the Appellant had been interviewed as a suspect about Offences 3 and had admitted that he committed those offences. He was instructed about his rights and obligations, including his obligation to inform the court of any change of residence. There was however no evidence that he had made any court appearance in relation to Offences 3. He was convicted and sentenced in his absence. The Appellant gave evidence that he did not remember anything about this case. In response to questions about the further information, he said that he had told his probation officer he was moving to the UK, and thought she would tell the police and the court. DJ Tempia at paragraph 41 of her decision rejected that part of the Appellant’s evidence. She then continued:
“In any event, I accept the Judicial Authority’s evidence that he did not tell the investigating authority or the judicial authority of his address in the UK. The address that is set out in the Further Information is his registered address in Poland. Equally nothing in the Further Information indicates that “at a minimum … a trial process must have been initiated”
. Therefore although satisfied that Mr Pogorzelski was not present when tried and convicted in absence, I am not satisfied so I am sure he deliberately absented himself from his trial. Therefore I have to look at whether he has a right to a retrial. 42. Poland is a signatory to the Council Framework Decision of 2002 and I have no doubt it will follow its obligations as set out in Article 4A about a retrial. Therefore I am satisfied that Mr Pogorzelski will be entitled to a retrial or (on appeal) to a review amounting to a retrial. I now turn to section 21”[42]Miss Draycott challenges the decision stated in paragraph 42. Miss Hinton resists that submission, and contends in the alternative that the decisions in paragraphs 41 and 42 were both wrong, with the result that the order for extradition should stand.[43]The finding that the Respondent had not proved that the Appellant had deliberately absented himself from his trial for offences 3 was one which the District Judge was entitled to make. It was a finding which was made after hearing the evidence of the Appellant. It led to a decision which was in accordance with the approach indicated by Bicioc v Romania. I am not persuaded that there is any basis on which I can, or should, reach a different conclusion.[44]However, although I am slow to interfere with the District Judge’s conclusions, I accept Miss Draycott’s submission that the decision in paragraph 42 cannot stand. EAW 3 is (like the other EAWs) a pro forma document on which the requesting authority has deleted sections which do not apply, has left intact sections which do apply, and has added further content. Miss Draycott points to the fact that Box D of EAW 3 has been completed by the Requesting Authority in the following way: i) In answer to the request to indicate if the Appellant appeared in person at his trial for offences 3, the Requesting Authority has stated “No, the person did not appear in person at the trial resulting in the decision. ” ii) The form then requires confirmation of the existence of one of a number of options. The Requesting Authority has deleted the first four of these options, but has left intact the fifth, so as to state the following:
“e) the person was not personally served with the decision, but the person will be personally served with the decision without delay after the surrender.” iii) Details are then given of the court having posted copies of the judgment and sentence to the Appellant’s address in Warsaw, all of which were returned uncollected. It should be noted that in relation to the judgment of 25th November 2010 this part of the form says: “The judgment became final and non-appealable on 1 February 2011.” iv) However, in a continuation of option (e) the printed form goes on to say: “AND when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has a right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, AND the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be … days.”
It is important to note that all of those words have been struck through by the requesting authority.[45]In further information dated 5th February, 2013, the requesting authority stated that after the Appellant’s return to Poland – “… generally he will not have any right to a retrial. However he can apply for cassation or he can submit for reopening of the hearing as the extraordinary remedy at law. Both the cassation application and submission for instituting a trial de novo are subject to the provision of so-called obligatory assistance of an advocate.” That information was given in response to questions relating to EAW 2, but its terms would appear to be applicable to EAW 3.[46]There is no other relevant documentation in the bundle provided to the lower court and on appeal. Thus the only evidence is unequivocally to the effect that the conviction in absence of Offences 3 became “final and non-appealable” on 1st February 2011 and that the Appellant was not informed of any right to appeal or to request a retrial. The further information of February 2013 indicates the possibility of the Applicant being able to apply for a form of appeal or retrial, but does so in terms which appear to indicate that it is a matter for the court’s discretion rather than a right of the Appellant. I cannot regard that further information as a clear contradiction of the evidence that the conviction is final and that the Appellant has not been informed of any right to an appeal or retrial. Miss Hinton realistically acknowledged that she was in difficulty in trying to identify any evidence of a right to a retrial. She did invite the court to consider whether the case should be adjourned to enable the Requesting Authority to provide further evidence on this point, but in my view there was no justification for any such adjournment. There has been ample time for appropriate evidence to be obtained, and it was of course the Requesting Authority itself which completed Box D in the way which I have cited.[47]Miss Hinton also sought to rely on the decision in Malinowski v District Court of Legnica, Poland, to which I have referred in paragraph 30 above. She invited me to read paragraph 42 of the District Judge’s judgment as a statement that the Appellant had not adduced any evidence which raised any issue as to section 20(5). The difficulty with that argument, in my view, is that such an issue is raised by the terms in which the requesting authority has completed EAW 3. The Appellant does not need to do more than point to the unequivocal content of that document.[48]In those circumstances it is in my judgment impossible for the court to be satisfied that the question posed by section 20(5) should be answered in the affirmative. Pursuant to section 20(7) it is in my judgment clear that the Appellant must be discharged from extradition pursuant to EAW 3. With respect to the District Judge, I am satisfied that she should have decided this issue differently and that, if she had decided the issue as she ought to have done, she would have been required to order the Appellant’s discharge from this EAW. This ground of appeal accordingly succeeds so far as EAW 3 is concerned.[49]I therefore turn to the overarching ground of appeal relating to the Article 8 rights of the Appellant and his family. Article 8 provides – “1. Everyone has the right to respect for his private and family life, his home and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others”[50]I have cited above the decision in Belbin v France as to the approach which must be taken. However, the District Judge was of course deciding the Article 8 proportionality issue on the basis that the Appellant was liable to be extradited pursuant to all three EAWs. The effect of my decision in paragraph 48 above is that the Appellant will not be extradited pursuant to EAW 3. The proportionality exercise must therefore now be performed on the basis that he faces extradition only in respect of Offences 1 and 2. My approach to the District Judge’s decision on this issue must be modified accordingly.[51]I must and do approach this issue in three stages. First, it is necessary to consider whether extradition would involve an interference with the Article 8 rights of the Appellant and his family. Plainly, it would. Secondly, it is necessary to consider whether such interference is in accordance with the law. Equally plainly, it is. The crucial third question is whether such interference is proportionate and necessary. In considering that question, I follow the guidance given by Baroness Hale of Richmond in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. At paragraph 8 of her speech, Her Ladyship said this:
“We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no “safe havens” to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon privateand family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”
[52]Miss Draycott relies on the following: i) The long passage of time since the Appellant’s commission of Offences 1 and 2, and the fact that neither of those offences was particularly serious. ii) The fact that in the intervening years the Appellant has led a law-abiding life in this country and has worked to support his family. iii) The serious effect on his partner and his children if he is extradited to Poland and has to serve a significant period of time in prison: it is likely to be impossible for his partner to be able to afford to maintain their present home in his absence, and there is no guarantee that he will be able to obtain employment when he returns to this country. The partner is not in entirely good health, and there are no family or close friends to whom she can turn for assistance.[53]Miss Hinton points to the importance of extradition, the fact that these are conviction warrants, and the fact that the Appellant is not the sole carer for his children, who will be looked after by their mother in his absence.[54]The District Judge did not have the statement from the Appellant’s partner which is relied on in this appeal, but in my view there is nothing in that statement which does more then support and emphasise the points which the Appellant himself made to the District Judge. At paragraph 47 of her judgment she said:
“If Mr Pogorzelski were extradited there would be hardship on the family but the children have their mother and no doubt the State would assist the family if Ms Praczyk could not work.”
[55]The District Judge, having carried out the necessary balancing exercise, concluded that extradition of the Appellant would not amount to a disproportionate interference with his Article 8 rights.[56]I have to carry out a different balancing exercise, because I am now concerned only with EAWs 1 and 2. However, I reach the same conclusion as did the District Judge. I recognise that the two convictions involved the theft of property which was not of high value, but on the other hand they were offences of dishonesty, the second committed whilst subject to a suspended sentence of imprisonment for the first. The Appellant committed those offences as a mature adult, not as a youth. Taken together, his two offences – both committed with another man, and the second committed whilst subject to a suspended sentence – were quite serious. In any event, as Lord Judge said at paragraph 132 of his speech in HH v Deputy Prosecutor of the Italian Republic, Genoa:
“When resistance to extradition is advanced … 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. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence).”
[57]I accept that Offences 1 and 2 now date back many years, but the passage of time must be seen in the context of the Appellant’s own behaviour: he left Poland having committed Offence 2 during the operational period of his suspended sentence for Offence 1, and (on the District Judge’s finding) failed to inform the Regional Court of his new address. Moreover, the evidence from the requesting authority before the District Judge was that the Appellant attended the first hearing of his trial for Offence 2, and was on that occasion summonsed to attend the next hearing but failed to do so. That evidence supports the conclusion that the Appellant knew he was wanted by the court and deliberately stayed away.[58]As to the Appellant’s conduct in the years since Offences 1 and 2, it is in my view significant that the Appellant admitted that he had committed Offence 3, even though I have ruled that he must be discharged in respect of EAW 3. The District Judge also heard evidence that in 2014 the Appellant was convicted of failing to surrender to a court in the UK. In those circumstances, whilst the Appellant does not have a particularly bad criminal record, it cannot be said that he has led a blameless life since Offences 1 and 2. I also share the view of the District Judge (at paragraph 46 of her judgment) that if the Appellant was, as he says, in contact with the Polish court in 2010, then there was no culpable delay between that contact and the issuing of EAW 1 in May 2011.[59]I have given careful thought to the position of the Appellant’s family, and in particular of his two children, whose Article 8 rights demand particularly close attention. Their position is a sad one, but regrettably that is very often the case when a husband and father is imprisoned (whether in this country or abroad). The children will have the loving care of their mother and (as the District Judge noted) will presumably be entitled to state benefits if they need that assistance. It was not suggested that the family will be wholly unable to visit the Appellant during his sentence. In the substantial period which has elapsed since these extradition proceedings began, the Appellant and his family have had ample time to prepare to meet the difficulties of his being extradited. I accept there will be hardship for the Appellant’s partner and children if he is returned to Poland, but in my judgment that factor is outweighed by the importance of extradition.[60]I therefore reject the third ground of appeal.[61]For those reasons I allow the appeal in relation to EAW 3, but dismiss the appeal in relation to EAWs 1 and 2. It follows that the Appellant will be discharged from extradition in respect of Offence 3, but will be extradited in respect of Offences 1 and 2. His extradition must proceed in accordance with the timetable laid down by section 36 of the Extradition Act 2003.[62]Neither party has made any application for an order for costs, or for any other consequential order, and no such order is made.