Krol v Regional Court Poznan (Poland) [2015] EWHC 2573 (Admin)

Case No CO/2169/2015[2015] EWHC 2573 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 23rd July 2015
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE BURNETT
MR JUSTICE HOLROYDE
Between
MICHAEL KROLAppellantv
Between
REGIONAL COURT POZNAN (POLAND)Respondent
Computer-Aided Transcript of the Stenograph notes ofWordWave International Ltd trading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Stansfeld (instructed by Kaim Todner) appeared for AppellantMr B Gibbins (instructed by CPS Extradition Unit) appeared for Respondent
J U D G M E N T

LORD JUSTICE BURNETT:

[1]This is an appeal brought with permission against the order of District Judge Tempia of 8th May 2015, whereby she ordered the applicant's extradition to Poland on a European arrest warrant issued by the Regional Court in Poznan on 22nd April 2013. It was an accusation warrant.[2]Permission was granted on one ground alone, namely that the judge should have concluded that the appellant's extradition would be disproportionate, for the purposes of section 21A(1)(b) of the Extradition Act 2003. That is because Cranston J, who gave permission, considered:
"It is arguable (just) that the appellant's extradition would be disproportionate under section 21A and that the District Judge was wrong in her analysis and conclusion ... In as much as the sentence which would be imposed in this jurisdiction is relevant, reference can be made to the first 2 cases monitored in Banks on Sentence, 10th edition, page 2-849."
That is a reference to some of the cases digested in Banks which concern offences of perverting, or attempting to pervert, the course of justice by incriminating innocent people and thus causing a criminal investigation and possibly prosecution to be brought against them. That gives the flavour of what this case is about.[3]The appellant is wanted for trial in Poland for an offence which in this jurisdiction would be attempting to pervert the course of justice. The offence is alleged to have occurred on 8th July 2010. The appellant reported to the police that his ex-girlfriend, with whom he had recently split up in acrimonious circumstances, had stolen his mobile phone. He indicated that that was of particular concern to him because it contained all of his contact details with others. She did indeed have a mobile phone belonging to the appellant. She was arrested on that day and questioned. She explained the circumstances in which she came by the phone, namely that the appellant had given it to her when her own had been damaged. Four weeks later (or thereabouts) the phone was returned by the police to the appellant. It is thus plain that his ex-girlfriend was at that stage still under suspicion. Fortunately for her, ten weeks after her arrest, an independent witness was able to confirm the account that the ex-girlfriend had given. The essence of the allegation against the appellant is that, out of spite, he sought to orchestrate the prosecution of a woman who had crossed him.[4]The basic chronology of events is as follows. On 16th November 2010 a criminal investigation was opened into the appellant's conduct. It is safe to infer that at some time between the statement being given by the friend and that date suspicion had lifted from the ex-girlfriend. The appellant was questioned on 25th November 2010. According to information provided by the Polish judicial authorities, the appellant admitted the offence. That information also contains the following statement:
"He stated that he had not known that such behaviour constituted a criminal offence and that he wished to enter into a plea bargain and be convicted without holding a full trial and sentenced to 8 months' imprisonment for the first offence and 6 months' imprisonment for the second offence, aggregated into a total sentence of 1 year's imprisonment conditionally suspended for 2 years' probation, plus a fine of 100 day fine units of PLN15 each."
[5]The reference to two offences is a complication that arises in this case because although the European arrest warrant seeks the extradition of the appellant for a single offence, in Polish law the single course of conduct appears to constitute two offences. That does not impact on the outcome of this appeal.[6]The appellant, in evidence before the judge, denied that he had admitted the offences and denied having indicated that he wished to enter into a plea bargain.[7]Be that as it may, an indictment was lodged on 15th December 2010. The appellant was summonsed to appear at court but it became clear that he was being elusive. The judge in the extradition proceedings found that the appellant was a fugitive. That was on the basis that he was well aware of the criminal proceedings against him in Poland but nonetheless made himself scarce and in due course left the country.[8]On 27th May 2011 a domestic arrest warrant was issued against the appellant, but by that time he had left Poland. The appellant's own evidence before the judge was that he had travelled extensively since leaving Poland before settling in the United Kingdom.[9]The Polish authorities became aware of the appellant's presence here. The European arrest warrant was translated into English on 8th April 2014 because by then the information they had was firm. The warrant was certified in the usual way. The appellant was arrested on 2nd August 2014. In accordance with the statutory scheme, an initial hearing took place on 4th August, two days later, but the extradition proceedings gave way to domestic criminal proceedings which had been instituted against the appellant. Those later resulted in the appellant's conviction for an offence and the imposition of a community order. That having occurred, it was then possible to restore the extradition proceedings.[10]The extradition hearing commenced on 23rd January 2015. The appellant gave detailed evidence of his circumstances. There had been no witness statements served in advance of his giving that evidence. For that reason there followed an adjournment to enable the Polish authorities to provide further information. The extradition hearing resumed on 21st April 2015. In the meantime the appellant had breached a residence condition attached to bail, which was dealt with in the Brighton Magistrates' Court and resulted in his being held in custody for a short period.[11]At all events, a number of arguments which had been advanced before the judge have not been taken on appeal. I note that there were arguments under Article 8 of the European Convention on Human Rights and also section 14 of the 2003 Act relating to the passage of time.[12]The judge considered section 21A of the Extradition Act in the light of the decision of this court in Miraszewski v Poland [2014] EWHC 4261 Admin, in which Pitchford LJ gave guidance as to the correct approach. Section 21A provides:
"(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ('D') - (a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; (b) whether the extradition would be disproportionate. (2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account. (3) These are the specified matters relating to proportionality - (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D."
[13]The essence of the complaint in this appeal is that the judge came to the wrong conclusion on proportionality. Mr Stansfeld submits on behalf of the appellant, first, that the judge overstated the seriousness of the offence; secondly, that the judge failed to take into account evidence that was before her that there was at least a likelihood that a suspended sentence of imprisonment would be imposed in Poland; thirdly, that the judge failed adequately to take account of the fact that the Polish authorities could at this late stage summon the appellant to attend his trial in Poland, with the possibility that he would return voluntarily.[14]In the course of her judgment, the judge noted that the offence, that is to say attempting to pervert the course of justice, is not one referred to in the guidance issued by the Lord Chief Justice which ordinarily would result in extradition being denied on grounds of proportionality. It is not surprising that an offence involving an attempt to pervert the course of justice does not appear in that particular list.[15]The complaint that is advanced by the appellant begins with the label attached by the judge to the conduct in this case as being "very serious". Mr Stansfeld did not press hard the linguistic argument, but did submit that it was wrong to describe the offence as "very serious" as opposed to "serious". He submitted that a sentencing judge in this country, if confronted with these facts, would be wrong to describe the offence as very serious.[16]The submission is that, serious though perverting the course of justice undoubtedly is, the nature of this alleged offending places it at the lower end of the relevant spectrum. Mr Stansfeld points to the fact that the offence in respect of which the appellant sought to have his ex-girlfriend prosecuted was one of relatively low value theft. He draws a distinction between such a case and others which might involve the false allegation that someone has committed a serious violent offence or a serious sexual offence. He points out that the appellant appears to have made the allegation only once and that this case does not have the hallmarks one sees in others of repeated allegations or attempts to bolster the initial false allegation with additional colour.[17]I would readily accept that it is possible to imagine many more serious forms of examples of attempting to pervert the course of justice. However, in my judgment that does not lead to the conclusion that maliciously seeking to set in train a criminal prosecution against an innocent victim is not always serious. Offences against justice, as they are often called in this jurisdiction, are taken very seriously by the courts. It would be surprising if offences against justice, which one should not forget undermine the rule of law quite apart from causing enormous problems for their victims, were not treated equally seriously in other jurisdictions. To the extent that Mr Stansfeld submits that the judge was wrong to stigmatise the conduct in this case as very serious, I would reject that submission.[18]Turning then to the question of penalty, there are perhaps two aspects which need to be considered together with a complication concerning the evidence. The first of those aspects concerns the question of the likely sentence in this jurisdiction. It is that upon which the judge concentrated.[19]An offence involving an attempt to pervert the course of justice of this nature would ordinarily attract a custodial sentence. That much is made plain by the judgment of the Court of Appeal Criminal Division in R v Reedy [2013] EWCA Crim 338 at paragraph 9:
"We have noted the range of sentences passed in this type of case, where an offender makes a false allegation in particularly of rape. The fact that the false allegation here was not of rape makes it no less serious than those allegations. Those who commit this type of offence and make bogus allegations as the result of which innocent people are harmed and resources expended must expect immediate custodial sentences, whatever the mitigation."
Reedy was a case involving a false allegation of robbery.[20]Mr Stansfeld has pointed to examples of cases in which non-custodial sentences have been imposed, for example Clarke [2010] EWCA Crim 2076. That is one of the authorities which Cranston J had in mind when he referred to Banks on Sentencing.[21]It is important to recognise that in this type of offending the decisions of the Court of Appeal Criminal Division demonstrate that the underlying circumstances and personal mitigation available to the defendant in question are often determinative of the nature of the sentence imposed. I would readily accept from Mr Stansfeld that, depending on any mitigation that might be available, an immediate custodial sentence would not be inevitable in this jurisdiction on the same facts. It would, however, unquestionably be the starting point.[22]The second matter founds Mr Stansfeld's real complaint in connection with this aspect of the judge's decision, namely that she focused exclusively on the hypothetical sentence that might be imposed in this jurisdiction, when the statutory question concerns the likely penalty which would be imposed if the defendant were found guilty of the extradition offence. Mr Stansfeld submits that the focus of that subsection is on what would happen in Poland. He reminds us of the content of paragraphs 37 and 38 of the judgment of Pitchford LJ in Miraszewski, which considered, amongst much else, the usual position in which there is no information about what sentence would be imposed in the requesting state. However, in this case there was the information about the plea bargain, said to have been proposed by the appellant, in the communication from the Polish judicial authority from which I have already quoted.[23]A curiosity of the approach of the judge is that she considered that the paragraph which I read demonstrates that there was an agreed plea bargain. With respect to the judge, I am unable to read the paragraph in that way. However, it seems to me that Mr Stansfeld has a sound submission in suggesting that the paragraph, appearing as it does in a document provided by the court, is support for the proposition that a suspended sentence is at least a possibility in this case. He submits that the judge erred in failing to take account of an important feature in the evidence, namely the possibility of a suspended sentence in Poland rather than a likely custodial sentence if the same offence were sentenced here. In those circumstances, he submits that the proportionality exercise falls to be reconsidered here. I agree that the approach of the judge suggests that her focus was on likely sentence in this jurisdiction rather than in Poland when, perhaps unusually, there was evidence of what might happen there. For that reason I accept that it is appropriate for this court itself to undertake an evaluation of the proportionality of the extradition[24]I have already indicated that I consider the conduct which constitutes the alleged offending in this case to be serious. Offences against justice of this nature cannot be dismissed as relatively trivial. It is important to understand that the three factors identified in section 21A(3) are not akin to criteria that the requesting state must establish to secure extradition. They are features of an overall evaluative judgment called for on proportionality. Still less can section 21A(3) be read as supporting the proposition that the likelihood of a non-custodial sentence imposed in the requesting state should necessarily result in extradition being considered disproportionate. That would be contrary to what has already been said in Miraszewski.[25]Taking account of the seriousness of the conduct, and also taking account of the likely penalty in this sense that it is likely inevitably to be a custodial sentence and the only question is whether there would be suspension, I nonetheless have come to the conclusion that those factors taken together do not support the argument that it would be disproportionate to extradite this appellant.[26]The third feature informing the proportionality question found in the subsection is the possibility of the relevant foreign authorities taking measures that would be less coercive, is a matter to which the District judge had regard, and so must we.[27]I consider that Mr Stansfeld's submission that a summons could be issued in Poland at this late stage to which the appellant would respond is unreal for a number of reasons. First, a summons was issued in Poland to which the appellant did not respond. The District Judge concluded that he was a fugitive for reasons that are unassailable. In those circumstances in my view it is unreal to suppose that the Polish authorities should be required to go through the process again. Secondly, and in any event, the procedure that would then follow, of which we have no evidence I should say, would be extremely uncertain. Mr Stansfeld's proposition is that a summons could be issued which identified the date of trial and the appellant could travel to Poland for that single date. That is not how a criminal process works, at least in this jurisdiction. There are preliminary matters which need to be dealt with. Leaving aside the fact that there are good reasons to suppose, despite his protestations, that the appellant would not respond to such a summons, it does not seem to me to meet the practicalities of the case.[28]For all these reasons, my conclusion is that the extradition of this appellant would be proportionate and in those circumstances this appeal must be dismissed.

MR JUSTICE HOLROYDE: I agree.

LORD JUSTICE BURNETT: Mr Stansfeld, thank you very much indeed for your submissions. Mr Gibbins, thank you for your written submissions and your attendance.