THE QUEEN ON THE APPLICATION OF BORKOWSKI v DISTRICT COURT IN LUBLIN (POLAND) [2015] EWHC 804 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
[2015] EWHC 804 (Admin)Case No CO/5188/2014Venue Royal Courts of Justice, Strand, London WC2A 2LL, Thursday, 29 January 2015
Between
THE QUEEN ON THE APPLICATION OF BORKOWSKIClaimantDISTRICT COURT IN LUBLIN (POLAND)Defendant
Before
Mr Justice KingMiss L Herbert (instructed by Freemans) appeared on behalf of the ClaimantMs L Collins (instructed by CPS) appeared on behalf of the DefendantDate 29 January 2015
[1]MR JUSTICE KING : This is an appeal from an extradition order made on 5 November 2014 that the appellant be surrendered to Poland to serve an outstanding sentence of seven months in respect of an offence committed on 13 April 2007. The European Arrest Warrant was issued on 31 May 2011, certified on 14 February 2013, and executed by arrest of the appellant in this country on 24 July 2013.[2]The chronology and background facts appear to be as follows. The offence committed on 13 April 2007 is described as one of fraud. The particulars in the warrant indicate that it relates to an application for a loan of some 800 Polish LN which is about £140 in English money. The particulars given in box E in the warrant are these: . "On 13 April 2007 in Lublin [the appellant] in order to achieve some material profit and receive a loan, submitted faked declaration on his monthly remuneration, and then assuring falsely about the intent and the possibility of paying the loan back, he entered into a loan agreement for the amount of PNL 800.00 [zlotys] with PROVIDENT POLSKA, subsidiary in Lublin. He did not pay any of its installments which consequently meant that the harmed financial institution managed the unspecified amount in an unprofitable way."[3]The warrant specifies that this is an offence against economic turnover and property under the material provisions of the Polish Penal Code.[4]Although the warrant does not say so in terms , it would appear that that the seven month sentence, when passed , was suspended. Sentence was imposed on 13 February 2008. The terms of any suspension are not specified but it would appear that at some point in 2010, that sentence, using English terminology, was activated. I say this because of the Further Information in the warrant itself in paragraph F in these terms :
"Sentenced [the appellant] did not present himself voluntarily to the penal institution after having cancelled the conditional release from serving the full sentence on 4 October 2010."
[5]It is unclear whether this information means that the sentence was activated on 4 October 2010 by some decision of a Polish court, or whether there was an earlier such decision by, or following which the appellant was ordered to present himself voluntarily to custody on 4 October 2010. The Information then continues:
"The searching performed turned out to be ineffective. It results from police investigations (...) that the accused may stay outside the territory of (...) Poland -- in one of the EC countries."
[6]In fact on the appellant's evidence, which appears to have accepted by the court below, he had left Poland some time in late October 2010. His case was that he was serving an existing prison sentence of three years for robbery and an associated assault, when sentence was imposed for the EAW offence on 13 February 2008. There is a dispute as to whether the appellant was present when the sentence was imposed. The warrant certainly suggests that he was. The judge below was of the view that the appellant's memory on this issue was not reliable. In any event the appellant himself does not dispute that he received notice of the sentence while he was in prison for those other offences. He, however, says that when he left Poland, he had no knowledge that that sentence had been activated or that he was required to present himself to custody on 4 October, if that was the required date. His case was that he was released from prison where he had been serving the sentences relating to the robbery and the assault, in late October 2010 ,and he thereupon left the country.[7]Whether the appellant had in truth been serving an existing sentence from which he was released by the polish authorities in late October 2010, and whether he had been given notice of the activation of the sentence for the serving of which his extradition is now sought, are all matters upon which the only evidence comes from the appellant himself. There is no information on this obtained from the requesting authority. Nor is there any information, whether within or from outside the warrant, as to why the sentence was activated. From what the appellant was saying in the court below, the inference seems to be that it was a term of the sentence that he pay compensation to the bank, in effect pay back the loan, and this he failed to do. This, of course, may not be inexplicable, given, he says, he was in prison during the material time.[8]Be that as it may, the appellant then came to the United Kingdom, set up home here, and obtained work in various places. The appellant has made a life for himself here. He is single but his siblings, his two brothers and three sisters, all of mature ages, live in this country. As I have indicated, the arrest warrant itself was issued in 2011 and certified in 2013.[9]The issue before me is whether or not the judge below was wrong to have decided ,as he did ,for the purpose of the question arising under section 21 of the Extradition Act 2003, that extradition would be compatible with the appellant's convention rights under Article 8. Section 21 requires the Judge to decide whether the person's extradition would be compatible with his convention rights and to discharge him if it would not. The Judge below decided this question against the appellant. It is not in dispute that if that question should have been answered differently, this appeal must succeed.[10]The exercise which the court has to undertake when Article 8 is raised in this context is well-known. It is a balancing exercise. On the one hand there is the heavy weight to be given to the public interest in extradition and in the honouring by the United Kingdom of its extradition treaty obligations, and in particular in the present context the public interest in the extradition of persons who have been convicted and in respect of which there is an outstanding sentence. There is a clear and weighty public interest in there being no safe havens to which such persons can flee in the belief that they will never be sent back. On the other hand, against that consideration has to be weighed the nature and gravity of any interference with the requested person's private and/or family life which on the facts his extradition will entail. The court in carrying out this exercise is seeking to assess the proportionality of the interference in the particular case to the legitimate objective or aim which extradition serves. If on the facts it would be disproportionate, extradition would not be compatible with and would be in breach of the convention rights of the extraditee. On all this see the well known decisions of the Supreme Court in Norris [2010] UKSC 9 and HH [2012] UKSC 25 . In particular see Baroness Hale in HH at paragraph 8 and 30.[11]This issue of proportionality is fact sensitive. Although it is still the case that more often than not, given the constant and heavy weight to be given to the public interest which I have identified, any interference will be found to be a proportionate response, nonetheless as Blake J said in Matchuski in [2014] EWHC 357 Admin at paragraph 20:
"…since 2012, this court in the exercise of its jurisdiction to review whether a decision is disproportionate has been willing to give much greater weight to factors such as the pure passage of time, the age of the offender, the seriousness of the offence, the time served, as well as the impact upon third parties, particularly minor children."
[12]I was referred also to the observations of Wilkie J in Jesionowski [2014] EWHC 319 at paragraph 13 where he too emphasised that although there were general principles informing the decision of the court in dealing with such appeals, such decisions are very much fact sensitive:
"So it happens that in two of the three cases which are directly in point, this court did uphold an appeal where as a result of the passage of time, the period for which the individual will return to serve in Poland would respectively be a maximum of two months and a maximum of five months. In the latter case, the ……Court expressed the view that it would be very hard to see how his release could be refused given the passage of time, the fact that no offence had been committed and that the individual had a good employment record."
[13]Although Ms Collins for the respondent urges upon me the view that considerations of proportionality in the context of an Article 8 appeal in a conviction case are not the same as the considerations of proportionality which now apply as a freestanding matter under Section 21A of the 2003 Act in the case of an accusation warrant, I am quite satisfied that the proportionality exercise to be undertaken when Article 8 is raised in response to a conviction EAW , should include as relevant factors, amongst other things, an assessment of the seriousness of the particular offence, the distance in time since its commission, and since conviction, and the likely period of time which is going to be served if the requested person is surrendered.[14]In this case, this offence is not at the highest level of seriousness. It is the obtaining by fraud of a loan for a relatively small amount. If the appellant had managed to repay the loan whatever the falsity of his representations as to means I have no doubt no prosecution would have followed. The offence is at a low-level of relative seriousness, having regard to the amount involved and the nature of the fraud itself, that is to say making false representations as to the ability to pay the instalments.[15]I agree with Ms Herbert that if this were an offence committed in this country and assuming that it would be prosecuted here, it is highly unlikely that any immediate custodial sentence would be imposed and it is far more likely that the sentence would be a fine or a community order. I accept however this is but a factor to be put in the balance, and cannot in itself be decisive since as

Lord Judge said in HH ( at paragraph 132 ):

"…this court 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…"
[16]As indicated, it is also a relevant factor that the sentence which is to be served is a short one, maximum seven months. Further, the court is entitled to take into account the well-known fact that the Polish authorities have a discretion to allow release after one half or two-thirds of the sentence has been served. There must be a real possibility here that the actual time to be served by the appellant will be significantly less than seven months.[17]Further, while properly taking into account Ms Collins' submission based on Lord Judge's observations in HH referred to above that this court should be slow to impose on a contracting state its own views as to the seriousness of the material offence, the court nonetheless, in line with the observations of Baroness Hale in HH at paragraph 45,' can take notice of the fact no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW ,no matter how comparatively minor the offences ,how much time has elapsed since they were committed ,and how respectable the life which the offender has lived since then' .[18]In this case this appellant has committed no offences since 2008.He on the evidence before the court has built up a life in this country which is law abiding and involves employment. He has put down roots here with his siblings and those siblings' children. The distance in time since this offence actually occurred, namely April 2007, is over seven years ago.[19]I am not in any position, any more in my judgment than the District Judge was, to resolve the issue whether the appellant knew when he left Poland that his prison sentence had been activated. There is just insufficient information in the warrant as to precisely when the activation took place, what notice was given to the appellant, and as to what the breach of the suspended sentence was. Even if I assume, and it is an assumption, that the appellant knew that there was a possibility that the sentence had been activated, I cannot go further than that and I do not consider on the material before him, that that the District Judge should have done. It is in my judgment very questionable whether the appellant was in truth a fugitive, as the District Judge found. It is, of course, the fact that the appellant knew that there were some seven months outstanding as regards the sentence imposed in 2008 but that is not the same as knowing that that had been activated.[20]There is the further mystery in this case, if it be correct that the appellant was released from custody by the Polish authorities in October 2010 (and I repeat there is no information from the requesting state to contradict the appellant's evidence that he was), as to how this release was allowed notwithstanding there was an outstanding activated seven-month sentence. This is a mystery which this court is in no position to resolve.[21]My conclusion on this appeal is as follows . Undertaking the balancing exercise referred to it would in my judgment be disproportionate on these particular facts to order extradition.[22]I repeat the principal matters I have taken into account in reaching this conclusion : the offending was not of a serious nature. It was at the low-level of offending. It was committed nearly 8 years ago. A short suspended sentence was imposed just under 7 years ago. It is unclear as to why the sentence was activated. Since leaving Poland in 2010, the appellant, who is now some 32 years of age, has been law abiding, has obtained employment and has settled roots in this country. The length of time he is likely to have to serve in respect of the matter for which his surrender is sought, is of a relatively short length. At maximum it is some seven months, but it could well be less.[23]In all these circumstances, notwithstanding the heavy weight which must always be given to the public interest in extradition, I consider it would be disproportionate to order surrender on the present facts. The district judge in answering the question under section 21, should, in my judgment, have decided that the appellant's extradition was not compatible with his Article 8 rights and ordered his discharge. I accordingly allow this appeal.[24]MISS HERBERT : I am grateful, my Lord.

MR JUSTICE KING : Nothing else? No.

Cited in 6 later judgments