SAS, R (On the Application Of) v Circuit Court In Zielona Gora [2015] EWHC 648 (Admin)

[2015] EWHC 648 (Admin)Case Nos. CO/5175/2014 ,CO/5173/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand London WC2A 2LLDate Monday 26 January 2015
B e f o r e:
MR JUSTICE KING
Between
THE QUEEN ON THE APPLICATION OF SASAppellantv
Between
CIRCUIT COURT IN ZIELONA GORARespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss Amelia Nice appeared for Appellant Mrs SasMr Nicholas Hearn appeared for Appellant Mr SasMiss Saoirse Townshend appeared for Respondent
J U D G M E N T (Approved)
[1]MR JUSTICE KING: This is an appeal by two appellants, Marek Sas (husband) and Boguslawa Sas (wife) against the decision of Senior District Judge Riddle on 4 November 2014 to order their extradition to Poland pursuant to a number of European arrest warrants (‘EAW’).These proceedings are governed by Part I of the Extradition Act 2003.(‘the Act’).

EAW 1

[2]In the case of Mrs Sas her extradition is being sought pursuant to only one EAW. There is a like EAW issued in respect of identical matters in the case of Mr Sas. This warrant has been known throughout these proceedings as EAW No 1. although separate ones have been issued in respect of each appellant. This warrant relates to an offence of obtaining credit by false representation committed on 11 July 2005. It is a conviction warrant. Mr Sas was sentenced to eight months' imprisonment and Mrs Sas to six months. This EAW in each case was issued on 23 January 2008 and certified by SOCA on 14 June 2013.[3]Mr Sas's extradition was in addition pursuant to three other warrants, known as EAW 2 and EAW 3.

EAW 2

[4]EAW no. 2 is an accusation warrant. Mr SAS’s extradition is sought for him to face prosecution on five offences.

EAW 3

[5]EAW N0.3 is a conviction warrant in relation to four offences of fraud committed between 2000 and 2002. Mr SAS’s extradition is sought to serve an outstanding sentence of one year six months and twenty-three days of a total sentence of 3 years 2 months.[6]Three grounds of appeal have been pursued before me. I proceed to give judgment now only in respect of two of them. I shall give judgment later on the Article 8 ground.

The requirement of dual criminality

[7]As regards Mr Sas, he pursues a discrete ground of appeal in relation EAW 2, namely that one of the five offences in relation to which his extradition is sought is not an extradition offence within the meaning of the Act. It is common ground that if it is not, then the Appellant’s discharge on this offence ought to have been ordered under section 10 of the Act.[8]The particulars of the offences are set out in Section E of the warrant. Of the five offences alleged, the first 4 are alleged to have occurred on the same day, 9 March 2006, and self evidently relate to the same occasion when Mr SAS’s car was involved in an accident and was left at the scene.[9]The particulars of the first offence disclose conduct which would amount to an offence of perjury in this country. The allegation is that while being interviewed as a witness under a criminal liability caution under the Polish Penal Code Mr SAS testified untruthfully that his car had gone missing the day before from where he had parked it, ‘whereas the truth had been he had driven this car to Legnica where he caused an accident and where he left the damaged car‘. The particulars of the second offence was that ‘on the night of the 9 of March 2006’ he was driving an identified BMW motor car ‘while in the state of drunkenness’. The particulars of offence number three alleges that he incited his son to make a false statement on 9 March 2006 that his car had been stolen while the particulars on number 4 alleges that he incited his son on 9 March 2006 to give false testimony to the police regarding the theft of his car. The particulars of offence number five alleges that he provided false information to a bank in order to obtain credit to purchase a car.[10]The ground of appeal now being pursued is that the particulars of the second offence, namely driving a motorcar ‘in the state of drunkenness’ do not disclose an ‘extradition offence’.[11]For present purposes to be an extradition offence the conduct alleged must, amongst other things, satisfy the dual criminality test section 64 (3)(b) of the Act, namely: (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;[12]The submission being made is that driving ‘while in a state of drunkenness’ does not amount to any offence in this jurisdiction.[13]There are only two potential equivalent offences. The first is the offence under section 5 of the Road traffic Act 1988 (driving with excess alcohol). However the Appellant submits that absent any particulars of any blood/alcohol reading or other measure, these particulars could not in themselves bring the conduct within an offence under section 5 which defines the offence by reference to driving with a concentration of alcohol in excess of a prescribed limit.[14]This submission must be right. Indeed Miss Townshend, on behalf of the judicial authority, does not dispute this part of the Appellant’s submission. However she submits that this court can nonetheless safely conclude from the facts set out in the warrant, that the conduct alleged would amount to an offence under section 4 of the 1988 Act, namely driving while unfit to do so. Section 4 (5) of the 1988 Act provides:
"(5) For the purposes of this section, a person shall be taken to be unfit to drive if his ability to drive properly is for the time being impaired."
[15]In Wars v Lublin Provincial Court Poland [2011] EWHC 1958, a Divisional Court of this Court (Lord Justice Aikens and Mrs Justice Swift) held that in a case where the allegation was that the appellant was driving a car on a public road ‘while being in a state of inebriation’, such particulars were sufficient to establish conduct amounting to an offence under Section 4. In that case the District Judge had had no doubt that if in this jurisdiction a court was satisfied that the defendant had been driving while ‘inebriated’ the inescapable conclusion would be that he was unfit to drive. In the earlier case of Rozakmens [2010] EWHC 3500 Admin, Ouseley J. when considering an alleged offence of "driving under the influence of alcohol" had had regard to the country’s domestic criminal law jurisprudence to the effect that to establish the offence of driving when unfit, the prosecution had to prove not only the ‘influence’ of drink but that ‘proper control of the vehicle was impaired’ by the drink and had ruled that no conduct had been alleged in the warrant showing impairment or unfitness as opposed to influence.[16]In Wars the Divisional Court (Swift J. at paragraph 16) distinguished Rozakamens by taking the point that the conduct alleged in Wars was not driving under the ‘influence’ of alcohol but driving ‘in a state of inebriation’ ‘i.e. drunkenness’. The Court (Swift J. at paragraph 17) accepted the proposition that driving whilst ‘inebriated i.e. whilst drunk’ ‘inevitably‘ amounts to driving when unfit to drive and ruled therefore that the conduct alleged in the warrant did amount to conduct amounting to an offence under Section 4 and hence an extradition offence was made out:
"17 ... I consider that the Senior District Judge was quite right in finding that, if a UK court were satisfied that a defendant had been driving whilst inebriated (i.e. whilst drunk) its conclusion would inevitably be that he was also unfit to drive and that section 65 (3) (b) of the Act was therefore satisfied."
[17]In subsequent decisions of this court however Wars has not been followed. It was not followed by Irwin J. in Grabowski [2014] EWHC 3602 and nor by Blake J. in Lis [2014] EWHC 3226.[18]In Lis the particulars were that the appellant was driving a car "being intoxicated". At paragraph 22 Blake J. said he did not consider that there was any material difference between "intoxication" and "inebriation" for the purposes of deciding which two lines of authority to follow. At paragraph 23 he said that it seemed to him - "... that the central question is whether the inference can be drawn from the facts revealed in the information before the District Judge and this court that the appellant was so under the influence of alcohol as to be unfit to drive. If it can, the dual criminality test is met; but it if cannot, it is not." It was not sufficient in his judgment to establish ‘being unfit to drive ‘that one was under the influence of alcohol’. He continued in these terms:
"... one either needs to know how much alcohol was influencing the driver and draw the conclusion that the quantity was such as to indicate unfitness or one needs some evidence of the way the driver was behaving or of the driving or the degree of control ... from which that conclusion can safely be drawn."
[19]Reference was made by Blake J. to Assange [2011] EWHC 2849 Admin where this court applied the criminal standard of proof to the dual criminality test and said at paragraph 57: "... the facts set out in the [warrant] must not merely enable the inference to be drawn that the Defendant did the acts alleged with the necessary mens rea. They must be such as to impel the inference that he did so; it must be the only reasonable inference to be drawn from the facts ...” At paragraph 28 Blake J. applying these principles determined that he could not conclude that the description of the conduct in the warrant, which was the only source of information, was sufficient to meet the double criminality test.[20]In this case Miss Townshend relies however not only upon the particulars in paragraph2 of section E relating to the particular offence, but also upon the particulars in paragraph 1 relating to the perjury offence as to what the truth had been: namely that Mr SAS had driven his car to Legnica where he had caused an accident and left the damaged car. The argument is that the inevitable inference to be drawn from a combination of the facts alleged in paragraphs 1 and 2, is that Mr SAS’s state of drunkenness so impaired his ability to drive so as to render him unfit to drive because he had caused an accident.[21]Valiantly though Miss Townshend has pursued her submission, I cannot accept her reasoning. As was emphasised in Assange, the facts set out in the warrant must not merely enable the necessary inference of fact to be drawn so as to disclose conduct amounting to an offence here, they must be such as to impel the required inference. I cannot hide from my consideration that I have been shown another translation of this warrant where, at paragraph 2 under section E, the offence alleged is that of being ‘under the influence of alcohol’. It does not go as far as saying ‘being in a state of drunkenness’. For myself I am not prepared to accept that being under ‘the influence of alcohol’ and ‘being in a state of drunkenness’ are necessarily one and the same. It must all depend on the details of the facts which are not set out in this warrant. I am certainly not prepared to accept as an inevitable inference from the separate allegation that Mr SAS had caused an accident, that when driving when under the influence of alcohol he was driving when unfit to do so. There just is not enough here in the facts alleged to draw that inevitable inference, in my judgment.[22]It follows that the appeal in respect of the offence alleged in respect of driving while in a state of drunkenness succeeds. I will order Mr SAS’s discharge in respect of that offence.

Validity of the warrant: Particulars of other domestic warrants of the requesting state

[23]The second ground relates to European arrest warrants numbers 1 and 3. It relates to the requirement in section 2(2)(b)of the Act material to a conviction warrant, that warrant must contain, amongst other information, the information set out in section 2(6)(c) namely ‘particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence’. The Supreme Court in Louca [2009] UKSC 4 established that this provision means that the European arrest warrant must refer to any enforceable domestic judgment or domestic arrest warrant on which the European arrest warrant is based, that is to say the justification for the European arrest warrant. It is common ground that if the warrant does not provide the information required under section 2 of the Act then it is not a valid Part 1 warrant and discharge must be ordered. For the purpose of assessing validity the court can look only at the only warrant itself as a self-contained document. Defects cannot be corrected by external information.[24]Mr Hearn on behalf of Mr Sas and Miss Nice on behalf of Mrs Sas submit there has been non compliance with this section 2((6)(c) requirement as regards EAW No. 1. Mr Hearn submits that it has also not been satisfied as regards EAW no. 3.[25]In EAW no. 1, under box B /section B headed "Judicial decision being the basis of the warrant", the following appears:
"1 Type of decision. Enforceable arrest warrant: not applicable. Other enforceable judicial decision involving personal liberty deprivation: not applicable. Enforceable judgment: judgment of April 24, 2006, by the District Court in Zagan. Changed by the judgment on November 2, 2006 by the Circuit Court in Zielona Gora."
(emphasis is of this court)[26]Further information has been supplied by the judicial authority which states, among other things, the following:
"Both Mr and Mrs Sas were present on April 24, 2006 at the hearing in the Fist Instance Court ... at which the judgment was announced. However they were not present on November 2, 2006 at the announcement of the judgment of the Second Instance Court ... although they had been summoned properly and a solicitor had been notified of the date and place of the hearing ... "
[27]Paragraphs 5 to 8 of this information read:
"5 Marek Sas and Boguslawa Sas appealed against the judgment of April 24, 2006 by the District Court of Zagan. In its judgment of November 2, 2006 ... the Circuit Court ... varied the original judgment in that the legal basis of the conviction for both of them was now Article 297 paragraph 1 of the Penal Code in connection with Article 11 paragraph 3 of the Penal Code. 6 Both Marek (and his wife) were free when they testified before the First and Second Instance Court. Only after the appeal proceedings were finished and the judgment became final were they summoned to report to their penitentiaries. Neither of them did so, so on March 12, 2007, the District Court of Zagan issued orders for the police to bring them ... . 7 Marek ... was to report to the detention facility ... on January 25, 2007. On the same day (his wife) was to report to the penitentiary in ... . 8 Neither of them did so. The court issued orders for police to bring them. However the police could not execute the orders because neither of the convicted Sases were residing at their usual address at the time." (In parenthesis, this court observes that in October 2006 both had fled the jurisdiction and come to the United Kingdom, in particular Scotland.) "8 Following this, on July 27, 2007, the District Court of Zagan issued a 'wanted' notice for them and suspended the subsequent enforcement proceedings against them."
[28]Mr Hearn's submission is that given the appellants were free and lawfully at large between the First Instance Court decision of April 2006 and the Appeal Court judgment, issued in November 2006, this EAW cannot have been based upon the enforceable judgments of April and November 2006 stated in the EAW, but must have been based on the subsequent orders or warrants issued for their arrest when they failed to report to prison as ordered to do so. As noted in the Further Information, orders were made for their apprehension in March 2007 and July 2007. It is common ground that no particulars are given of these subsequent domestic arrest warrants in the EAW itself. Hence the submission of invalidity.[29]As regards European Arrest Warrant no. 3 applicable only to Mr Sas, the material section of the warrant (section/box B) is headed "The rulings, the basis for issuing the arrest warrant". It states at paragraph 1:
"Type of ruling: liable to be executed decision of detention awaiting trial: not applicable; liable to be executed judicial decision, applying another means leading to his imprisonment; if so what means: not applicable; enforceable judgment, cumulative judgment issued by the District Court in Boleslawiec on 11 February 2004."
[30]Again, Mr Hearn refers me to the further information supplied by the judicial authority, in a written communication of 1 October 2014 which states, amongst other matters:
"7 ... Marek Sas was not deprived of his liberty ... Marek Sas was released from prison on 1 July 2005. The release was based on the decision of a Regional Court ... dated 30 June 2005. Leaving prison by Marek Sas did not occur unlawfully."
At paragraph 8 it states:
"8 ... The court explains that there was no delay between the release from prison and the issuing of a European arrest warrant on 21 August 2008. Pursuant to the decision of 29 September 2007, the Regional Court ... revoked the condition of early release and ordered the remainder of the unserved custodial sentences imposed by the judgment of the District Court ... dated 11 February 2004 ... be served. The reason for revoking the condition of early release was evading supervision and the duties imposed by the decision on the condition of early release from serving the remainder of the custodial sentence and the fact that a criminal case ... was pending before the District Court ... When this decision had become final the court recalled Marek Sas to prison. Since Marek Sas failed to report to prison the court issued a warrant for compulsory appearance. After the warrant for compulsory appearance had been issued, police officers issued a search in the territory of Poland which proved ineffective. In the course of proceedings it was found that Marek Sas was aware of being wanted by the Polish law enforcement authority to serve the custodial sentence ... left for the United Kingdom and settled in Scotland together with his family. The District Court in Boleslawiec, having ascertained there was no possibility to capture Marek Sas, filed an application in the Regional Court ... for issuing an EAW."
[31]So, says Mr Hearn, the cumulative judgment issued by the District Court on 11 February 2004 was not the justification or the basis for the issue of the European arrest warrant. That justification is to be found in the subsequent judgments and warrants issued, beginning on 29 September 2007, when, as set out in the further information, the Regional Court revoked the condition of early release, ordered the remainder of the sentences imposed to be served, and issued a warrant for compulsory appearance. No particulars of these orders/warrants are given in the EAW itself. Hence in the case of EAW 3 the submission of invalidity.[32]Attractive though the submission by Mr Hearn has been, I cannot accept it for two reasons.[33]First, I cannot accept it on the straightforward basis that in my judgment this court cannot go outside that which is stated on the face of the warrant. The warrant in each case specifically states what the basis for the issuing of the EAW was. In case of the EAW 1, the warrant is clear:
"Judicial decision being the basis of the warrant; ... judgment of April 24, 2006, by the District Court ... changed by the judgment of November 2, 2006, by the Circuit Court."
In the case of EAW 3, the warrant is equally clear: ‘The rulings, the basis for issuing the arrest warrant ... enforceable judgment, cumulative judgment issued by the District Court in Boleslawiec on 11 February 2004." Although Mr Hearn argues strongly that the judgment of Lord Sumption in Zakrzewski [2013] UKSC 2 is not in point because of the difference on the facts with which that case was concerned, I have no doubt that what is said by Lord Sumption (see paragraphs 8 and 13) to the effect that the validity of a European arrest warrant depends on whether the required particulars are contained within it, not whether they are correct, is apposite to the present case.[34]Secondly, I would adopt the reasoning of the Divisional Court in Regional Court inTarnow, Poland v. Wojciechowski [2014] EWHC 4162 (Admin) in rejecting a similar submission made by Mr Hearn for the appellant in that case as that pursued by him before me.[35]In Wojciechowski in section B, the EAW had listed two judgments under the heading ‘enforceable judgment issued by’ namely ‘the aggregate judgment issued by the District Court - 11 August 2006’and (ii)’ the judgment issued by the District Court of 10 December 2012, final as of 18 December 2012. What was explained in another section of the EAW headed "Other circumstances relevant to the case" was that the sentence imposed was an aggregate sentence in substitution for an earlier sentence, that the requested person (w) had commenced serving the earlier sentence but had been released from custody under an early release scheme but that that release was revoked for failure to comply with conditions. W was then sentenced for further offences and was due to serve the aggregate sentence determined by the court.[36]In a letter of 11 July 2014 the requesting state had further explained that W’s early release had taken place on 22 June 2011 but had been revoked on 12 April 2013 on the ground he had committed a further offence during the trial period. By letter of 10 May 2013 the requested person had been required to report to prison on 20 May but he had not. On 29 May 2013 the police had issued a warrant for his arrest. The key date on which that domestic arrest warrant had been founded was accordingly 20 May 2013, the date on which appellant had failed to surrender following which the police warrant was issued. Further, before the EAW had been issued a further domestic warrant for his arrest had been issued nationally on 10 July 2013.[37]The submission of the judicial authority in Wojciechowski that the warrant had been only required to give particulars necessary to found its justification, that the two domestic warrants relied on by the requested person omitted from the EAW had been issued after the enforcement judgment which formed the justification for the issue of the EAW. It had been the domestic court's judgment in December 2012 that had ordered the respondent to serve his aggregated sentence. The warrants had merely been the means by which the police had sought to secure his surrender to custody.[38]Mr Hearn had countered that the letter providing further information had expressly stated that the requested person had been ‘illegally at large since 20 May 2013’and being so unlawfully at large was the jurisdictional basis for the EAW. Hence, so the submission went, the two warrants issued in Poland for the arrest of the requested person were the jurisdictional foundation for the European arrest warrant.[39]The Divisional Court, through Lord Justice Pitchford rejected Mr Hearn’s submission. The court (at paragraph 26) disagreed with the conclusion of the District Judge against whose decision the requesting state were appealing, that the post-judgment warrants formed an essential part of the particulars to be provided under Section 2(6)(c). They were issued in an attempt to secure surrender to custody but were immaterial to the validity of the EAW which was founded not upon the post-judgment domestic warrants but upon the court judgments imposing the respondent's aggregate sentence. The domestic warrants were not to do ‘with the offences’ (see again the wording of section 2(6)(c)) but to do with securing the surrender of the respondent to serve the sentences imposed by the court in the enforcement of judgments identified.[40]Mr Hearn does not dispute that the reasoning of the Divisional Court in Wojciechowski, if adopted by this court, applies equally to the facts of these cases so as to render this ground of appeal one which cannot succeed.[41]I do adopt the reasoning because it seems to me entirely right; in this case the domestic warrants or orders which have been relied on by both appellants did not in my judgment form the jurisdictional basis for either EAW 1 or 3. Nothing in the information which was relied on by Mr Hearn gives support for the proposition that there were subsequent judgments or warrants which provided the justification for the European arrest warrant. In each case the enforceable judgments identified in section B in each EAW was that justification and not that which was subsequently set out in the further information describing how the court in Poland sought to secure the surrender of the respective appellants to custody. Domestic warrants or orders designed for that latter purpose do not in my judgment fall within the particulars required to be provided under section 2(6)(c).[42]For all these reasons the appeals based on the alleged deficiency in the required particulars in the respective EAWs must fail.[43]MR HEARN: I rise at this stage. Clearly, the court has still yet to deal with the principal most important submission certainly on Mrs Sas's behalf which is the Article 8 submission. I have a subsequent application arising out of the judgment you have just given. It can properly wait until the conclusion of proceedings.[44]I will give way to Miss Nice who is going to do the running in respect of the Article 8 matters. Hopefully I will not need to trouble you too much further with submissions on Mr Sas's behalf. (Miss Nice addressed submissions to the court)

MR JUSTICE KING: I give judgment on the Article 8 grounds of appeal.

[46]I deal first with Mrs Sas. In her case her extradition is sought pursuant only to EAW No.1, a conviction warrant. The material offence, committed with her husband in July 2005, was that of dishonestly obtaining by false particulars a loan amounting to some £900. The appellant was sentenced to six months' imprisonment. The totality of the six months is left to serve. The enforceable judgments were that of the 24 April 2006 by the District Court and, following an unsuccessful appeal, and that of the Circuit Court of 2 November 2006.[47]In the meantime, in October 2006, Mrs Sas and her husband moved to the United Kingdom, to Scotland. They were, under Polish law, free to leave at the time they moved pending the hearing of their appeal although they must have known that this was fixed for a date shortly thereafter. I have no doubt that they took no steps thereafter to find out the outcome of the appeal or, if they did, to seek to return to serve their sentence confirmed by the appeal court. The fact remains however that in the case of Mrs Sas her extradition is sought in respect of one offence only and to serve a short sentence.[48]Since 2006, when she and her husband left Poland, Mrs Sas set up home in Scotland which was maintained 2013. She registered with the Home Office on 17 November 2007. She worked throughout this time. It is said, and I have no reason to doubt, that she has been hard working throughout her time in this country.[49]In February 2013 she moved with her husband to Merseyside to be with their children and grandchildren. She is not a young woman herself. She is in her fifties. She has two adult children who themselves have children. The evidence before me is that in her case her daughter is very dependent upon her as a grandmother, the daughter's husband having left. The effect of the overall evidence is that if Mrs Sas herself is extradited it is likely that she will lose her job and as result she will lose the home. Mr Sas does not himself have a job so she is the sole means by which the house can be supported financially.[50]It is well established (see HH [2012] UKSC 25)that when considering whether removal is compatible with Article 8 rights and the issue of proportionality which arises, the court is undertaking a balancing exercise. On the one hand there is the constant and weighty public interest in extradition, material to the present facts, that those convicted of crimes should serve their sentences and should not be able to assume that they can flee the jurisdiction in which they offended, without being at risk of being sent back. Part of that public interest is that the United Kingdom should honour its treaty obligations to other countries and should provide no safe haven to such persons. Balanced against that is the weight to be given on the facts of any given case to the interference with any Article 8 rights of the appellant and/or members of the appellant's family. The question is always whether that interference is nonetheless outweighed by the identified public interest in extradition.[51]In conducting this exercise, the court takes into account the nature of the offence itself. As Mr Justice Blake has said, since 2012 this court has been more willing to find a State has been disproportionate in seeking extradition, having regard to the nature of the offence itself, the passage of time and also what the likely time is to be served on return.[52]In this case there is six months to serve but Mrs Sas has, I am told, been on a daily 8 hour curfew in this country for six months. Although in this jurisdiction a qualifying curfew for the purpose of credit against sentence has to be one of nine hours a day, it does not follow the same approach is adopted in Poland. It must always be open to the Polish court to take account of this curfew time. Further it is not in dispute that after serving half the time the appellant is entitled to be considered for early release.[53]I take also into account the passage of time in this case and the delay since the issue of the EAW in 2008. No criticism can be made of any delay in the issuing of the EAW since Mrs Sas and her husband fled the jurisdiction in October 2006 because understandably the Polish authorities did not know and had no reason to know where the appellant was. However that EAW once issued was, on the evidence before me contained in further information, received in the UK in 2008. Thereafter however it was not certified until June 2013 and it was not executed by arrest until July 2014, and here is no explanation in the further information for these respective delays (5 years between receipt and certification; one year further delay in tracking the appellant down to Merseyside).[54]According to the witness statement of Ellen Vaughan of the NCA, it was in May 2013 that a message was received from Poland stating that the subject might be residing in Scotland. It is said that further checks, although not particularised, were then carried out but it was not until February 2014 that it was thought that Mrs Sas might well be on Merseyside. This explanation does not lie easily with the evidence that Mrs Sas and indeed her husband were registered with the Home Office from an early stage in their time in Scotland, and it might be thought that it would not have been difficult to have located her and her husband much sooner had expeditious and proper checks been made for example with the Home Office as well as of the tax authorities given her history of employment.[55]Had in her case her extradition been sought for a more serious set of offences for which she was required to serve longer sentences, this court's judgment might well have been different. However taking together all the factors I have identified, namely the relatively limited nature of the one offence, the limited length of sentence she is likely to have to serve, the passage of time, the unexplained delays in certification and execution of the EAW, and the likely serious impact of extradition upon her family and private life in the UK, I do regard extradition in Mrs Sas’s case to be disproportionate and that the District Judge ought to have answered the question arising under section 21 of the Act differently and as a result ordered discharge. Her appeal accordingly succeeds on this article 8 ground.

Mr Sas

[56]In the case of Mr Sas I cannot come to the same conclusion. Although many of the matters I have stated in respect of Mrs Sas apply to him, the extent and nature of the offences in respect of which his extradition is sought for the purpose both of serving outstanding sentences and of prosecution is very different. (He and his wife well knew when he left the country that there were matters outstanding against him.). The offences of fraud relating to the sale of property in EAW 3 are serious and for which there is an outstanding sentence of one year six months and twenty-three days property. The amounts involved are not insubstantial amounts. Equally in his case in respect of European arrest warrant no. 1 The sums involved in EAW 1 although not large are not trivial. The offences for which his prosecution is sought in EAW 2, save for offence number two in respect of which I have ordered discharge, are not serious.[57]Perjury is never a trivial offence. Inciting one's own child to give a false statement is not a trivial offence.[58]Although I have had regard to the age of the offences I bear in mind the age of the offending, that is to say (2005 in respect of EAW 1, 2006 in respect of EAW 2 and 2002 in respect of EAW 3), taking all the identified factors together, I cannot say that the heavy weight to be given to the public interest in extradition is outweighed in this case by reference to the interference in his case with his Article 8 rights and those of his family. The District Judge in my judgment answered the question of compatibility with the Article 8 rights arising under section 21 in the case of Mr Sas correctly.[59]It follows that in the case of Mrs Sas this appeal is allowed. In the case of Mr Sas his appeal is rejected save in respect of offence no. 2 EAW no. 2, that is to say the allegation of driving a car in a state of drunkenness. In respect of that he is discharged.[60]MR HEARN: I have some ancillary matters. Under the Act Mr Sas has fourteen days to lodge an application for certification. The application is likely to be that given that the Divisional Court has considered that this is an appropriate question of certification he should be entitled to the same consideration.[61]MR JUSTICE KING: I am not unpersuaded by that but I would like to see the wording of whatever you choose to invite me to certify.[62]MR HEARN: The wording?

MR JUSTICE KING: Yes.

[64]MR HEARN: It would be in the similar terms.

MR JUSTICE KING: I am not going to do anything on the hoof.

[66]MR HEARN: I am grateful for that indication. Of course I will set out - - - - -[67]MR JUSTICE KING: In the Divisional Court case did the court give it immediately or did it do - - - - ?[68]MR HEARN: No. It was after a written application.[69]MR JUSTICE KING: I think I would much prefer a written application. Nothing I say at this moment should give any indication of what on reflection and consideration might be my decision.[70]MR HEARN: That is understood. In respect of the timing, I mention the operation that Mr Sas has. If the application is to be lodged for your consideration within that fourteen-day period it will depend slightly on how quickly the application is determined, whether the appointment for 27 February is in jeopardy or not. One way of dealing with it is perhaps agreeing with Miss Townshend a later date for the time to begin to run in respect of the application. It is difficult, I imagine, for the court to give any indication at this stage as to when that determination is likely to be made.[71]MR JUSTICE KING: The sooner you put it in writing I will endeavour; if you do it before the end of next week I will deal with it before the end of next week.[72]MR HEARN: I am grateful for that indication. Perhaps I can liaise with Miss Townshend and put before the court a proposed order that reflects that.

MR JUSTICE KING: Certainly.

[74]Are there any other orders anyone wants?