Kolodziejczyk, R (on the application of) v District Court Wroclaw Poland [2015] EWHC 3092 (Admin)

Case No CO/2840/2015[2015] EWHC 3092 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 26 August 2015
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF KOLODZIEJCZYKAppellantv
Between
DISTRICT COURT WROCLAW POLANDRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI Global165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Malcolm Hawkes appeared for AppellantMr Aaron Watkins appeared for Respondent
J U D G M E N T

MR JUSTICE CRANSTON: This is an appeal under the Extradition Act 2003 ("2003 Act").

[2]The background is that the appellant's extradition was ordered by District Judge Zani on 12 June 2015 pursuant to a conviction European arrest warrant issued by the District Court in Wroclaw, Poland, on 29 September 2014. The first conviction was of theft of a Volkswagen Transporter. The second conviction is stated as follows in the warrant:
"On 25 December 2003 in Wroclaw in his own flat ..... he hid identity documents in the form of identity card number ABG 7858847 issued for the name of [person A] and military document number HL 449244 issued for the name of [person B] to which documents he had no exclusive right."
[3]The warrant states that this was a crime under Article 276 of the Polish Penal Code. The warrant quotes that Article as follows:
"A person who destroys, alters, otherwise changes, conceals or removes a document to which he does not have an exclusive right is liable to a fine, limitation of freedom or imprisonment of up to two years."
[4]In further information provided by the Polish judicial authority on 24 April 2015, it is said:
"It was found that the files in the case had not report of [person A] about stealing the document, whereas the appellant, held as a suspect on revealing having placed an identify card belonging to [person A], explained that the document in question was found by him about a year ago and he failed to give it back or return it to the police."
[5]Before the district judge the appellant did not press a passage-of-time argument under Section 14 of the 2003 Act. The argument concentrated on whether extradition should be barred for want of dual criminality in relation to the second offence, namely that relating to the identity documents, and Article 8 of the European Convention on Human Rights.[6]The first argument in legal terms concerns Section 10 of the Act. The district judge stated that when dual criminality is required it is the conduct which is relevant, not any narrative that might be included by way of background. The district judge also quoted Lawrence v. Government of the United States of America [2008] 1 AC 920 to the effect that the conduct test is to be applied requiring the court to consider whether the conduct alleged against the requested person will, in its present state, constitute a criminal offence here. The judge heard submissions on behalf of the appellant that there was no statement from either person A or person B to the effect that the documents had been lost or stolen and that the hiding of the documents did not necessarily amount to an intention permanently to deprive. Consequently, it was said on the appellant's behalf, that theft had not been made out.[7]The judge adopted the submissions of the representative for the judicial authority to the effect that the elements of theft were present in that the documents did not belong to the appellant, that they were hidden inside his apartment and that that was tantamount to theft by finding. Moreover, the district judge referred to the further information provided in respect of the identity document (person A), where the appellant had stated he found the document about a year earlier and failed to give it back or return it to the police.[8]As regards Article 8, the appellant's proof of evidence was that his father had dementia, that he had been claiming disability living allowance but was now claiming personal injury payments. The proof continued that the father needed twenty-four-hour care, that the appellant and his mother split the care since his mother worked in a factory from 7.30 in the evening until 4 o'clock in the morning. During that time he cared for his father. The appellant also gave evidence relating to his drug problems and said that he was in the process of rehabilitation. The district judge recorded the evidence of the appellant, about his coming to this country in 2004, that he was now recovering from his class A drug and alcohol addictions, that he worked part-time and that he was the main carer for his father who suffered from dementia. It would be devastating for both parents if he were to have to return to Poland. Neither parents spoke good English, and his mother would have to give up work since the father's mental state was now showing such signs of deterioration that it was felt that he required twenty-four-hour care.[9]The district judge then set out the points in favour of extradition and those against. In favour of extradition he referred to the public interest, also the sentence of imprisonment in that the appellant had to serve something like eighteen months on return to Poland. He also stated that the appellant was a fugitive and had a not insubstantial sentence to serve. The points against extradition were that the offences were stale; they were not the most serious; they occurred eleven years previously; his parents depended on him emotionally to help them communicate and, to some extent, financially; and that they would not easily be able to cope in his absence since he was the main carer for his father who was infirm, his health was deteriorating and his extradition would result in the mother having to care for her husband on a full-time basis. The final points against extradition were that the appellant was recovering from his addictions and could fall back into his old ways if he would be returned, and that he was settled here, working and had never claimed benefits. The judge went on to set out his findings and found that in all the circumstances it would be compatible with the appellant's Article 8 rights and those of his family were he to be returned.[10]Mr Justice Ouseley gave permission to appeal on the basis that the dual criminality ground was arguable in the light of Article 276 of the Polish Code and that might - although he thought unlikely - affect the Article 8 conclusion.[11]On behalf of the appellant Mr Hawkes, who did not appear below, agitated by both the dual criminality and the Article 8 arguments. As regards offence 2 relating to identity documents, he challenged the district judge's conclusion that the conduct would, had it occurred here, constitute an offence of theft. In his submission, had the district judge applied the conduct test correctly, with proper reference to the warrant, Article 276 and the further information from Poland, he would have been compelled to conclude that the dual criminality requirement had not been met. In his submission there was no suggestion in Article 276 of the mens rea of theft, in other words, dishonestly appropriating with the intention permanently to deprive the lawful owner of their property.[12]Mr Hawkes contrasted Article 276 with Article 275. Article 275 had not been before the district judge but was available from another case. It refers to identity documents and creates an offence where the offender "uses the document certifying the identity of another person or their property rights or steals or appropriates such a document". In Mr Hawkes's submission it was clear that, by contrast with Article 275, Article 276 did not constitute theft. Moreover, in 2002 there had been no equivalent offences of concealing a document in English law. The possible offences in the Identity Cards Act 2006 had only come into force in June 2006, and the Identity Documents Act 2010 offences only came into force in January 2011. In Mr Hawkes’s submission, the conduct set out in the warrant would be insufficient to constitute theft. He cited, inter alia, Assange v. Sweden [2011] EWHC 2849 (Admin).[13]In my judgment the district judge applied the correct legal approach. He was entitled to find that the conduct in the warrant said to constitute the second offence satisfied the double criminality requirement. The conduct was that the appellant hid property which belonged to others in his flat. That is clearly consistent with an offence of theft involving an implicit allegation of dishonestly appropriating the property with the intention permanently to deprive the owners. I accept the submission of Mr Watkins that the fact that the items were two identity cards is immaterial. Even if I were prepared to admit the evidence as to Article 275, the fact that there is this other offence closer to theft as to its ingredients does not preclude the offence in Article 276 having been committed dishonestly with the requisite intention for the purposes of satisfying the double criminality provisions. In my judgment the further information cannot undermine the contents of the warrant. In any event, that further information concerns what was available to the Polish authorities when they compiled their response.[14]As regards the submissions on Article 8, I refused an adjournment for the claimant to obtain further medical evidence in relation to the father. Mr Hawkes has adduced evidence, a letter from the general practitioner dated 10 July 2015. In that letter the general practitioner stated that a recent dementia screening test of the father showed signs of markedly impaired cognition and memory:
"His prognosis appears poor. Currently I would not expect to see much improvement in his condition."
The cognitive impairment test, which Mr Hawkes has also adduced, shows that the appellant's father has scored in the lowest category in relation the seven topics which that test covers.[15]Mr Hawkes underlines the various points: first of all, the medical evidence and what a neurologist might conclude on examination of the appellant's father; the fact that the appellant now receives a carer's allowance for his father; and the fact that if the appellant returns now it may be that the father's deterioration will be such that on the appellant's return the father may not recognise him or even worse.[16]Mr Hawkes contends that, coupled with the delay which the district judge had not correctly addressed, a different balance should be struck. He submits that the balance which the district judge reached could not be frozen in time and that it must be possible for this court to take a different view, notwithstanding Celinski v. Poland [2015] EWHC 1274 Admin.[17]In my judgment the district judge applied the balancing test as required by Celinski. He was aware of the delay, referring to the staleness of the offences. In passing, I note that the appellant had abandoned a Section 14 ground in the course of the hearing at the Magistrates' Court. Whilst I accept that a balance struck by a district judge is not frozen in time, I cannot regard the judge's conclusion on Article 8 as being flawed. The district judge was aware of the father's deteriorating health as well as the implications for the mother having possibly to provide all the care for her husband once the appellant was extradited. The GP’s letter and the memory test results cannot affect how the balance was struck.[18]As in many extradition cases, this extradition will cause hardship; indeed, substantial hardship. But for the reasons I have stated, I dismiss the appeal.[19]Is there anything further?[20]MR HAWKES: No. MR JUSTICE CRANSTON: Thank you very much.