Mady v Government of Poland [2015] EWHC 1567 (Admin)

Case No CO/12693/2013[2015] EWHC 1567 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 20 th May 2015
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
ROBERT MADYAppellant
B E T W E E N:
- v -
Between
GOVERNMENT OF 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 Paul Clark (instructed by Lloyds PR Solicitors, London NW10 4UJ)appeared for AppellantMr Richard Evans (instructed by CPS Extradition Unit)appeared for Respondent
J U D G M E N TWednesday 20 th May 2015
[1]The appellant challenges the decision of District Judge Snow made as long ago as 2nd September 2013 to order his extradition to Poland pursuant to a conviction European Arrest Warrant. The warrant was issued by the Sad Okregowy Court on 6th May 2013 and certified by what was then the Serious Organised Crime Agency in July 2013. The warrant seeks the extradition of the appellant to serve the remaining one year five months and 23 days of a sentence of imprisonment for assault and appropriation of property committed in mid-2009. The appellant was represented at the Westminster Magistrates' Court. The issue raised was article 8 of the European Convention on Human Rights concerning the appellant's stepson, Seweryn Goral, who is 23 years of age.[2]The District Judge addressed the appellant's article 8 rights to a private and family life. He noted that the partner's daughter had returned to Poland, that the appellant and his partner had become a permanent couple in 2011, and that she was pregnant and due to give birth. That has now occurred. The appellant and his partner are the parents of a daughter who is now one year and eight months old. The partner's daughter is 14 years old. The appellant is not the biological father of his partner's son, Seweryn, but he treated him as his own.[3]As the District Judge noted, Seweryn is severely disabled. Tragically he suffered a brain infection at birth which significantly impaired his mental development. The District Judge noted the letter from the North East London NHS Trust that it was not safe to leave Seweryn alone because of his unpredictable behaviour and epilepsy. Although he could be left with carers, that was often unsatisfactory as he had difficulty in communicating his needs and he had run away from home.[4]The appellant and his partner stated that Seweryn became aggressive and violent, but the appellant was physically stronger and had a good rapport with him which enabled him to calm him down. The District Judge said that through the psychiatric team the NHS was clearly and heavily involved with Seweryn's disability. The doctors were acutely aware of his condition. The District Judge said:
"I have no doubt that carers will be provided should they be required if I order [the appellant's] extradition. In weighing up this family's article 8 rights I remind myself that [the appellant] is a fugitive, that the offences were serious and have attracted a substantial term of imprisonment. I remind myself that Seweryn's mother was able to deal with him for a number of years without [the appellant's] assistance. Against that background I am satisfied that it is entirely proportionate to this family's article 8 rights to order [the appellant's] surrender to serve the remainder of his sentence."
[5]Subsequent to this appeal being lodged, six different High Court Judges have on at least seven occasions adjourned the matter. I refused a further adjournment a fortnight ago for reasons which will become obvious.[6]The reason that the case has been adjourned was to explore, first of all, the extent to which Redbridge (the relevant local authority) could provide care for Seweryn; and secondly, so that Seweryn could be examined and a psychiatric report prepared. Late last year there were problems in relation to the psychiatric assessment. It is unnecessary to go into the details or to explore the reasons but the consultant psychiatrist has not been able to prepare a report for the court.[7]In a sense events have now moved on, because in early March the court was notified that Seweryn had been taken for a specialist appointment in Poland and would return the following week. In a statement prepared by the appellant it is said that Seweryn was taken to Poland because the medicine available there was more effective than that prescribed in this country. The appellant's statement continues that, when he was in Poland, Seweryn was found by the police behaving in a disorderly fashion in the market place in the town where the family comes from; that he was shouting randomly and uncontrollably; that he had run away from his mother earlier in the day; and that he was taken to a mental institution where it was discovered that his blood contained traces of Class A drugs. It was assumed that he was a drug addict. He was therefore not able to leave for some four weeks. When he was finally released, his mother and a nephew (Adam Goral) travelled back to the United Kingdom on 1st April. But when they arrived at Calais they were investigated and Seweryn was refused admission to this country. The Notice of Refusal, which is in the court papers, states that as a result of his previous administrative removal, re-admission to the United Kingdom was denied.[8]In his statement the appellant explains that the nephew remained with Seweryn and took him back to Poland. The appellant's mother, however, returned to this country. The statement adds that immigration solicitors have been instructed; that the nephew cannot cope with Seweryn in Poland; and that it is thought that the UK Border Agency may have incorrectly identified Seweryn.[9]Before me this morning Mr Clark, who appears on behalf of the appellant, was unable to add a great deal to what is contained in the appellant's statement, except to explain that at one stage there was a voluntary deportation order, which Seweryn had never signed, as a result of his commission of a number of petty offences. Mr Clark acknowledged that he had no instructions as to any time line for Seweryn's return to this country as a result of the representations made on his behalf by the immigration solicitors. Mr Clark's submission is that the district judge was incorrect in relation to two points. First, he was in error in finding that the partner had provided adequate care to Seweryn in the past. In fact, the partner had lived with her husband (Seweryn's father) and he was able to provide care before the appellant came on the scene. Moreover, there was an error in the district judge's assessment that local authority carers would be provided should they be required. Mr Clarke referred to the expert report of Dr Vellore, which set out the difficulties in caring for Seweryn; that he was at a significant risk of harming himself; and that there were fundamental shortcomings in respect of possible care to be provided by the local authority.[10]The situation, as I stated earlier, has now moved on. Seweryn is no longer in this country. The appellant no longer cares for him. There is no firm information before the court as to when Mr Goral will be able to return. At one point Mr Clark submitted that there should be a further adjournment, but, given the history of delay in this case, in my judgment that would not be appropriate.[11]Mr Clark turned to other aspects of family life. He underlined the fact that the appellant is the sole source of income for the family unit; that there is now the young daughter of one year and eight months, as well as the 14 year old stepdaughter. Mr Clark conceded that this was serious offending, but submitted that there were a number of factors which weighed in the balance the other way: the fact that the appellant had been in custody for six months in 2009; that he has been subject to restrictive bail conditions, including a tag-monitored curfew; and that the incident for which extradition is sought occurred in 2009, some time ago.[12]In my judgment, the balance in favour of the public interest in upholding our extradition obligations to Poland outweighs any of the interests that derive from the appellant's article 8 family rights. It is always the case that, where the requested person has a family, extradition will bear heavily on the other members as well as on the requested person. That is the nature of extradition. In this case, given that there is no longer the self-imposed obligation which the appellant has commendably assumed in relation to Seweryn Goral, and given that the other family interests can in no way outweigh the public interest in extradition, I dismiss the appeal.