Gardjas v District Court in Jelenia Gora, Poland [2016] EWHC 198 (Admin)

Case No CO/615/2015[2016] EWHC 198 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/02/2016
Before
THE HON. MR JUSTICE SWEENEY
Between
Jaroslav Adam GARDJASAppellantDistrict Court in Jelenia Gora, PolandRespondent
Saoirse Townshend (instructed by Kaim Todner) for AppellantJulia Farrant (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 25 March 2015
JudgmentMr Justice Sweeney :Introduction
[1]The Appellant, who is now aged 41, appeals under the provisions of s.26 of the Extradition Act 2003 (“the EA”) against the decision of District Judge Grant, made in the Westminster Magistrates Court on 5 February 2015, to order his extradition to Poland (a Part 1 territory) pursuant to an accusation European Arrest Warrant (“EAW”) that was issued on 21 February 2005 and was certified by the National Crime Agency (“NCA”) on 4 September 2014, to face trial for 56 offences – variously said to have been committed in the period between April 1999 and March 2001.[2]The alleged offences are as follows - Offences 1 - 31 are frauds involving the use of the Appellant’s debit card to make cash withdrawals from various banks. Offence 32 is the obtaining by deception of credit. Offence 33 is a joint enterprise offence of forgery and/or fraud. Offence 34 is the joint enterprise obtaining of money when selling a car. Offences 35 – 45 are joint enterprise frauds in relation to the sales of motor cars. Offences 46-52 are frauds in relation to the sales of motor cars. Offence 53 is the fraudulent joint enterprise obtaining of the use of a car. Offence 54 is the sale of property in anticipation of insolvency. Offence 55 is the forgery of a signature in order to enable the obtaining of a Bill of Exchange. It was not disputed in the Court below that it was alleged that, as a result of the commission of those offences, the Appellant had obtained, in total, the sterling equivalent of around £65,000.[3]The Framework List is ticked for all the offences other than numbers 33, 54 and 56. Offences 1 - 32 and 34 - 53 are each punishable with a minimum custodial term of 6 months, and with a maximum term of 8 years. Offence 33 carries a maximum term of 8 years. Offence 54 carries a maximum term of 3 years. Offence 55 carries a minimum term of 5 years and a maximum term of 25 years. Offence 56 carries a maximum term of 8 years.[4]“Further Information” dated 15 December 2014 from the District Prosecutor’s Office in Jelenia Gora provides the following chronology: 15 December 2000 : The Appellant was questioned by a police officer in relation to some of the offences. 19 December 2000 : The Appellant was interviewed as a witness. (Date unknown) : A decision was made to charge the Appellant and a summons was issued to attend court on 6 February 2001. 24 January 2001 : The summons was received by “Aneta Ficyk”. 6 February 2001 : The Appellant failed to attend court in answer to the summons. (Date unknown) : Another summons was sent to the Appellant to appear at court on 5/6 March 2001. It was not received by the Appellant as he had left Poland. 5/6 March 2001 : The Appellant failed to attend court in answer to the second summons 11 May 2001 : The District Court in Jelenia Gora issued a preventative measure against the Appellant – ordering his provisional detention for a period of 7 days after arrest. 19 May 2001 : A Polish domestic arrest warrant was issued. 1 August 2003 : The District Court in Jelenia Gora issued another preventative measure against the Appellant – ordering his provisional detention for a period of 7 days after arrest. 10 October 2003 : An order was given that the Appellant be sought by means of an arrest warrant. 1 May 2004 : The EAW provisions came into force in Polish law. 21 February 2005 : The EAW was issued by the Circuit Court in Jelenia Gora. 6 October 2009 : The EAW was amended. October 2010 : The Circuit Prosecutor’s Office in Jelenia Gora wrote to SOCA notifying them about the EAW.[5]The “Further Information” also indicated that the search for the Appellant had been ongoing since February 2001 – with all correspondence sent to his most likely places of residence being returned without receipt by the Appellant, and with members of his family having been “repeatedly informed” of the search, and not providing any information as to the Appellant’s whereabouts.[6]In a witness statement, Stephanie Eldred of the NCA indicated that its first contact with the Polish authorities in this case was on 13 October 2010, when the NCA in London received correspondence with regards to a possible address for the Appellant which had been provided by the Polish police. In response to the NCA’s reply, the EAW was received by them on 8 November 2011 but, as already touched on above, was not certified until September 2014.[7]The Appellant was arrested on 14 October 2014 in Rippon in Yorkshire. Four issues were raised on his behalf at the extradition hearing, namely: i) The failure of the EAW to specify the location of offences 46-52 (s.2 of the EA). ii) The passage of time (s.14 of the EA). iii) Article 8 of the ECHR (s.21A (1)(a) of the EA). iv) Proportionality (s.21A (1)(b) of the EA).[8]During the course of the hearing the Appellant gave evidence and was cross-examined. In the result, the District Judge found against him on all four issues.[9]There are three grounds of appeal. It is asserted that the District Judge erred in his findings in relation to three of the issues, namely that: i) Offences 46-52 contained the necessary particulars to satisfy the requirements of the EA. ii) Extradition was not oppressive due to the passage of time. iii) Extradition was compatible with Article 8 of the ECHR.

Ground 1 - s.2 EA

[10]Section 2(4)(c) of the EA (the origins of which can be found in Article 8(1)(e) of the EAW Framework Decision) requires an accusation EAW to contain:
“particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence, and any provision of law of the category 1 territory under which the conduct is alleged to constitute an offence [….].”
[11]The EAW does specify the location of each of offences 1-34 (which are said to have been committed in the period between April 1999 and July 2000 and, on all but one occasion, in Jelenia Gora); and of offences 35-45 (which are said, in the preamble to the particulars of each, to have been committed in the period between May 2000 and November 2000 in Jelenia Gora; and of offences 53-56 (which are variously said to have been committed in Wroclaw, Jelenia Gora and Lesna in the period between July 2000 and March 2001).[12]By way of example, the preamble to offences 35-45 provides that:
“In the period of between May 2000 and November 2000, in Jelenia Gora, acting in order to obtain a material benefit, acting together and with the approval of Sylwia Goralik-Gardjas, he caused 11 persons to disadvantageously dispose of their property by taking advantage of their fallacious belief that he would fulfil the ensuing obligations as he received from the above–mentioned persons, in his F-1 garage (i.e. second-hand car dealers), 11 cars of various makes so as to sell them despite having no intentions, or possibility to meet the terms of payments, which took place in a way specified as follows: ”
[13]By way of further example, the particulars of offence 45 are specified as follows:
“On 27 November 2000, after having signed a contract of sale on commission No. 347-2000 with Jerry Tomczak, for the sale of an Opel Corsa car, registered temporarily (test plates) and having set the sale price for 18,500 zlotys, he did not pay the whole amount of the mentioned above sum of money to injured party but he only made down payments worth of 12,500 zlotys of total value, by which doing he acted to the detriment of Jerry Tomczak. ”
[14]The preamble to the particulars of each of offences 46-52 provides that:
“In the period of between December 2000 and February 2001, acting on his own, acting in order to obtain a material benefit, he caused seven persons to disadvantageously dispose of their property by taking advantage of their fallacious belief that he could fulfil the ensuing obligations as he received from the above-mentioned persons seven cars of various makes so as to sell them, even though he had no intentions or possibility to meet the terms of payments, which took place in a way specified as follows: ”
[15]The particulars of offences 46-52, taken together, also make clear that the offences are alleged to have taken place in the period between 5 December 2000 (the date of the first contract of sale - see offence 46) and 12 February 2001 (the date of the last car sale - see offence 48). It suffices, by way of example, to set out the particulars of offence 46, which are as follows:
“On 5 December 2000 after having signed a contract of sale on commission No. 4/2000 with Maciej Bukanski, for the sale of a Ford Escort car, reg. JAA 1988, and after having set the sale price for 11,000 zlotys, he did not pay the mentioned above sum of money to the injured party despite that fact that, on 20 December 2000, he sold the car in question for 11,800 zlotys, by which doing he acted to the detriment of Maciej Bukanski. ”
[16]The warrant asserts that offences 1-32 and 34-53 (i.e. including offences 46-52) were each contrary to Art. 286.1 of the Polish Penal Code.[17]Whilst the location(s) of alleged offences 46-52 is / are not, as such, particularised in the warrant, the “Further Information” dated 15 December 2014 (which was provided by the District Prosecutor) concluded:
“Apart from the answers provided above, as requested, I would like to advise you of the fact that all the events specified in the Decision of bringing charges against Jaroslav Gardjas, included in items 46-52, took place in the city of Jelenia Gora.”
[18]In dealing with this issue in his written judgment, the District

Judge said:

“The first issue raised is Section 2 in respect of offences 46-52 in that there is no mention of location despite the clear requirement of Section 2(4)(c). If the warrant consisted only of those offences there would be no doubt that the warrant would be discharged. The question however is whether, taking the warrant as a whole, an inference can be drawn as to the place where it is said that those offences occurred. On the Requested Person’s own admission he was running a car sales business at the relevant time with his ex wife in Jelenia Gora and offences 46 to 52 relate to the sale of motor vehicles. I concluded that I could infer from the warrant as a whole that these specific offences occurred in the course of the running of that business in Jelenia Gora and I rejected the Section 2 argument. ”
[19]On the Appellant’s behalf Miss Townshend argued that: i) The purpose of the provision of the requisite particulars under s.2(4)(c) of the EA is to inform the Requested Person of the offence he is alleged to have committed and of the nature and extent of the allegation made against him - see Hewitt and Woodward v Spain [2009] EWHC 2158 (Admin). ii) The description of the conduct must specify where the conduct took place otherwise it may be impossible to determine whether it amounts to an extradition offence – see Zigmund v Government of Slovakia [2005] All ER (D) 133 (Jul); La Torre v HM Advocate [2005] HCJAL 56, at [95] iii) The appropriate level of particularity will depend on the circumstances of each case but more will be required in an accusation case than in a conviction case – see Sondi v Romania [2009] EWHC 3079 (Admin) at [28]. iv) A balance needs to be struck between the need for an adequate description to inform the person and the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed is and to have an idea of the nature and extent of the allegations made against him in relation to that offence. The amount of detail may depend on the offence – see Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin), at [7]. v) If, nevertheless, the EAW does not contain sufficient detail, it is no answer to say that the Requested Person knew about the conduct in any event - the warrant will be invalid, see Morawski v Regional Court in Wroclawek, Poland [2012] EWHC 4102 (Admin), at [17]. vi) It was inescapable that the EAW did not particularise the “place” at which offences 46-52 were alleged to have take place. It was a basic requirement, which had been complied with in respect of all the other offences, and should not be dispensed with. vii) In accordance with Morawski (above) the District Judge was only allowed to take into account what was stated in the warrant, albeit in ”the warrant as a whole” - see Louca v The Office of the Public Prosecutor, Bielefeld, Germany and others [2008] EWHC 2907 (Admin). viii) However, on the facts of this case, he was not entitled to draw the inference that he did. Offences 46-52 covered alleged offending that was the last in time and did not overlap with any of the other alleged offences relating to cars, and the cars specified in offences 46-52 were different from those specified in the previous alleged offending. Therefore, the District Judge could not have been satisfied to the criminal standard of the place where the alleged offending occurred. ix) In addition, as this is an accusation case, the District Judge ought to have taken into account that more detail was required than in a conviction case to enable the Appellant to identify possible statutory bars to extradition (see Hewitt and Woodford above) and the place where the offences were committed in order to identify whether the offences were extraditable offences for the purpose of s.10(3) of the EA, and for the purposes of transposition exercise pursuant to s.64(3)-(5) of the EA.[20]Miss Farrant, on behalf of the Respondent, argued that, based on the warrant as a whole, the District Judge was correct to find that offences 46-52 were alleged to have taken place in Jelenia Gora, given that: i) Offences 35-45 and 46-52 were two sets of vehicle related fraud offences relating to the sale of used cars between May 2000 and February 2001. ii) The preamble to the particulars of 35-45 made it clear that it was alleged that those offences took place in the period between May and November 2000, in the course of the Appellant’s business as a second hand car dealer in Jelenia Gora. iii) Offences 46-52 were identical in nature to offences 35-45 and followed on in time from December 2000 to February 2001. iv) One alleged victim was common to both sets of offences, namely Marcin Pietka who was specified as the victim in relation to both offence 44 (said to have been committed in Jelenia Gora in the period between 24 November 2000 and February 2001) and offence 49 (said to have been committed in the period between 7 December 2000 and 9 February 2001). v) The registration number alleged in each of the offences was clearly Polish, and the currency allegedly obtained was Zlotys. vi) The continuity between the two sets of offences in time, in terms of the individuals involved, and of the modus operandi, impelled the inference that all the vehicle related fraud offences took place in Jelenia Gora in the course of the business that the Appellant was described as conducting there.[21]Plainly, this is an accusation warrant and it is important, for the reasons advanced by Miss Townshend, that such warrants make clear the place where each offence is said to have taken place. It is equally clear that the District Judge fell into error when he took into account the Appellant’s evidence, and that I must also ignore, in this regard, the content of the “Further Information” dated 15 December 2014.[22]The critical issue is whether, nevertheless, the District Judge was right to conclude that, taking the warrant as a whole, the inference could surely be drawn that the location of offences 46-52 was Jelenia Gora. In my view, he was. Whilst the modus operandi alleged in relation to offences 35-45 and 46-52 is not identical as such, and the Appellant’s ex wife is not alleged to have been involved in offences 46-52, the essential points advanced by Miss Farrant on behalf of the Respondent are, in my view, good. To them can be added the fact that the particulars of offence 54 assert that the Appellant was in Jelenia Gora on 12 February 2001.[23]Hence this ground fails.

Ground 2 – s.14 EA

[24]As I have touched on already, the Appellant gave evidence before the District Judge and was cross examined.[25]The District Judge concluded, in his written judgment, that the Appellant had been untruthful in his evidence about his knowledge of the circumstances of the offences and of the proceedings. He variously: i) Contrasted the Appellant’s assertion that he had never been questioned by either a police officer or a prosecutor about the alleged offences with the “Further Information” dated 15 December 2014 from the content of which it was clear that the Appellant had been questioned by a police officer on 15 December 2000 and interviewed as a witness on 19 December 2000 – concluding that the Appellant had thus been the subject of questioning by both a police officer and a prosecutor in late 2000. ii) Rejected the Appellant’s assertion that he did not know Aneta Ficyk (said, in the “Further Information”, to have received the summons intended for the Appellant on 24 January 2001) and Anna Fidyt (said, in the particulars of alleged offence 33, to have been urged by the Appellant to forge the signature of Anna Frygiel). iii) Rejected the Appellant’s assertion, contrasting it with his proof of evidence, that he had relinquished his interest in his garage in Jelenia Gora to his ex wife before leaving for England in January 2001. iv) Underlined that the Appellant had said in evidence that he had left Poland to go to the United Kingdom without informing anyone where he was going, without leaving a telephone number and that he never went back to Poland because he wanted to start a new life. v) Recorded that he did not believe the Appellant’s claim that he knew nothing about the ongoing proceedings in Poland especially in view of the content of his proof of evidence – which recorded that soon after moving a friend had told him that the police had closed down his garage, and taken paperwork from it. vi) Also underlined that, when arrested, the Appellant had said “I know what it’s about, it’s not me, it’s someone else using my name” and that he had used his second name Adam rather than his first name Jaroslaw and that the use of his second name may account for some of the considerable delay between the commission of the alleged offences and the extradition hearing.[26]On this issue the District Judge’s ultimate conclusion was as follows:
“Whilst not a classic fugitive in the sense that the Requested Person had been formally served with proceedings and was formally informed of a court date, I nevertheless concluded that he is a fugitive in that he knew about pending proceedings because of the police interview and the interview by a member of the local prosecutor’s office, he knew that the police had taken the unusual step of closing down his business and seizing paperwork but he left the jurisdiction without informing anyone of his whereabouts, without leaving any contact information and without any further inquiry being made despite having an accountant and a lawyer who acted for him whilst he lived in Poland. In those circumstances I rejected the passage of time argument, although I consider overall delay for the purposes of the Article 8 argument.”
[27]Section 14 of the EA provides that:
“A person’s extradition in a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be….unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have….become unlawfully at large.”
[28]On the Appellant’s behalf Miss Townshend reminded me of the basic requirements that the burden is on the Requesting Authority to prove, to the criminal standard, that an individual is a fugitive and that, failing that, the burden rests on the Requested Person to show, on the balance of probabilities, that it would be unjust or oppressive to extradite him. Time runs from the alleged commission of the extradition offences and a causal link must be shown between delay and injustice / oppression – which were classically defined by Lord Diplock in Kakis v Republic of Cyprus [1978] 1WLR 779 (“Kakis”).[29]Miss Townshend readily accepted, in accordance with Kakis (above) and Gomes v Trinidad & Tobago; Goodyear v Trinidad & Tobago [2009] UKHL 21 (“Gomes”), that delay brought about by the requested person fleeing the requesting country, concealing his whereabouts, or evading arrest cannot be relied upon to suggest that it would be unjust or oppressive for the individual to be returned unless the circumstances are exceptional.[30]If, however, I was to decide that the District Judge was wrong to conclude that the Appellant was a fugitive, Miss Townshend submitted that “an overall judgment on the merits is required, unshackled by rules with too sharp edges” (per Laws LJ in La Torre v The Republic of Italy [2007] EWHC 1370 (Admin) at [37]), and that culpable delay by a Requesting Authority may be an important factor in tipping the balance in favour of the Requested Person. Miss Townshend also drew my attention to the potential need for consideration of the seriousness of the offence (Sapstead v The Governor of Belmarsh & Spain [2004] EWHC 2352 (Admin) at [34]); the impact on family members (Kovac v Czech Republic [2010] EWHC 1959 (Admin), at [14]; and the matters identified by Lloyd-Jones LJ at [23] of the judgment in Wenting v High Court of Valenciennes [2009] EWHC 3528 (Admin)); together with the need to have regard to delay through the eyes of a citizen (R v Secretary of State ex parte Patel [1995] Admin 7 LR 56, at [51] onwards).[31]Delay may, of course, be relevant to issues / arguments in relation to both s.14 of the EA and s.21A (1)(a) of the EA (Article 8 of the ECHR).[32]As to the merits of this ground, Miss Townshend began by submitting that, whilst the District Judge was correct to conclude that the Appellant could not be described as a “classic fugitive”, he had erred in nevertheless finding the Appellant to be a “fugitive”, given that: i) The combination of the information provided by the Respondent and the Appellant’s proof / evidence showed that: a) The Appellant was not informed of any decision to charge him (as he had already left Poland on 21 January 2001). b) The District Judge was not entitled to infer that the Appellant knew Aneta Ficyk (who received the summons addressed to the Appellant on 24 January 2001) or Anna Fidyt (referred to in the particulars of alleged offence no. 33). c) The Appellant was not officially notified of the proceedings – given that all of the official correspondence posted to him was returned without being received by him. d) Apart for the hearing on 19 December 2000 the prosecuting authorities had had no contact with the Appellant. e) The Appellant’s passport was not suspended and there were no legal obstacles to him leaving Poland. f) The Appellant was not notified of any obligations to appear when summoned or to notify the authorities of any change of address. ii) The Appellant did not recall the words attributed to him on arrest but, even if said, they were not inconsistent with his account that after he had left Poland, he was told by a friend that his garage had been shut down. iii) The Appellant’s use of his middle name “Adam” had no bearing on the case.[33]Miss Townshend then went on to argue, in the event of the success of her argument as to the finding that the Appellant was a fugitive (and in any event in relation to the third ground of appeal), that the long delay in the case was its most striking feature, not least because: i) The alleged offences were committed in 1999-2001, yet the EAW was not issued until February 2005. ii) The five year gap between the issue of the EAW and it being sent to SOCA in 2010 remained completely unexplained. iii) Nor was there any explanation for the delay between 22 October 2010 (when the EAW was first received by SOCA) and 4 September 2014 (when it was finally certified). iv) The Appellant had lived openly in the UK – applying for a National Insurance number on his arrival in 2001 and paying taxes – as well as having dealings with the Police over the attempted kidnapping of his daughter in June 2012.[34]Finally, in this regard, Miss Townshend submitted that the District Judge had failed to address whether it would be oppressive to return the Appellant to Poland. The Appellant had, she submitted, lived a law abiding hard working and useful life (without any criminal conviction) since arriving in the UK. He had lived openly and had a settled life here with his family. He was the main bread winner for his wife and two young children (then aged 9 and 5) who had both been born in this country and who, along with the Appellant’s wife, would suffer greatly if he was to be extradited. In those circumstances, she submitted, it would be oppressive to return the Appellant to face extremely old charges with an unknown amount of time away from his family.[35]As to the suggestion that the Appellant had not been convicted of any offence in this country, it emerged shortly after the hearing, indeed was volunteered on the Appellant’s behalf, that on 12 March 2015 he had pleaded guilty to drink driving and had been sentenced to pay a fine and costs amounting to £200 and had been disqualified from driving for 10 months. The offence was committed whilst the Appellant was returning home after having signed on at Harrogate Police Station as part of his bail conditions.[36]On behalf of the Respondent, Miss Farrant reminded me of [26] of the Opinion of the Committee in Gomes (above), as follows: “…This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in this case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We could not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused’s own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not “of his own choice and making”.[37]Miss Farrant also relied upon [31] of the Opinion in Gomes – which makes clear that the test of oppression will not easily be satisfied, and that hardship is not enough.[38]Against that background, Miss Farrant submitted that, given the clear picture that emerged from the evidence, the District Judge was both entitled to, and right to find that the Appellant was a fugitive (i.e. had left Poland in order to avoid court proceedings and/or stayed away once he realised that he was wanted) including that: i) Contrary to the Appellant’s claim in interview, the “Further Information” showed that, just before he admittedly left Poland and came to this country in January 2001 he was aware, having been interviewed by the Police on 15 December 2000 and as a witness four days later, that the Police were investigating his business affairs. ii) The Appellant had given inconsistent accounts as to the timing and circumstances of his move to this country - in particular as to the degree of contact he had had with people in Poland after his move, and his knowledge of the Police interest in his business affairs. In his proof (which was in evidence) the Appellant had asserted that he had moved here in January 2001 to study English for three months (leaving his manager to run the company until his return), and that soon after moving here a friend had told him that the Police had shut his garage and taken his paperwork because of problems with the cars. Whereas in his evidence on oath the Appellant had claimed that he had transferred his interest in the garage to his ex-wife before he had left Poland, and went on to say that he had left Poland without informing anyone as to where he was going, had not left a telephone number, had not contacted anyone after he came to this country, and that no one in Poland had known where he was. iii) The fact that the Appellant changed his account in evidence was consistent with a belated attempt to distance himself from events in Poland at the material time. iv) The “Further Information” stated that the Appellant had been summoned to appear at a hearing on 6 February 2001 and that the summons had been received by Aneta Ficyk on 24 January 2001 and in his evidence the Appellant had denied knowing her or about the summons, but could not explain why the summons would have been received by her or at what address. He denied that she was the “Aneta Fidyt” who is alleged to have been involved with him in offence 33. v) The Appellant’s words on arrest. “I know what it’s about, it’s not me, it’s someone using my name”, were consistent with a greater degree of knowledge at the material time than the Appellant admitted in evidence, as was the Appellant’s admitted use in this country of his middle name Adam, instead of his first name, Jaroslaw.[39]It is not necessary to deal with Miss Farrant’s submissions in relation to delay at this stage. I summarise those submissions, and refer again to Miss Townshend’s submissions in that regard, when dealing with the third ground below.[40]The first issue under this ground is whether or not the District Judge was entitled to find as a fact that the Appellant was a fugitive. The Appellant gave evidence on oath and was comprehensively disbelieved by the District Judge - for the cogent reasons (summarised at [25] above) that he set out in his judgment. Whilst I have some hesitation as to the District Judge’s finding in relation to Aneta Ficyk / Aneta Fidyt (albeit that it was based on disbelief of the Appellant whose credibility he was in a far better position to judge than I am), I have no doubt at all that he was both entitled to and right to make his other findings of fact and, on foot of them (including the finding as to the use by the Appellant of his middle name) to reach the sure ultimate conclusion, in the terms set out at [26] above, that the Appellant was a fugitive. I see no tension between that finding and the finding that the Appellant was not a “classic fugitive” (as defined by the District Judge in his judgment). In any event the evidence was such that District Judge could equally have surely concluded, in the alternative, that the Appellant had chosen to stay away from Poland once he had realised, at an early stage, that he was wanted.[41]Given that this is plainly not one of the rare types of case contemplated in Gomes (above) in which, nevertheless, it would be appropriate to go on to consider oppression as such, that is dispositive of this ground - which therefore also fails.

Ground 3 −s.21A (1)(a) EA

(a) EA

[42]During the course of the argument in the court below the District Judge was referred to the principles set out in the two leading authorities as to the approach in relation to Article 8 of the ECHR in the context of extradition – Norris v Government of the United States if America (No.2) [2010] UKSC 9; [2010] 2 AC 487 (“Norris”) and HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 (“HH”).[43]In his judgment the District Judge variously indicated that he had fully considered the relevant principles; that Article 8 was clearly engaged; and that he bore in mind that the Appellant had a settled life in this country with his wife and two children, that he had no convictions (whether in this country or in Poland) and had led an industrious life here since 2001.[44]On the question of delay, the District Judge noted that the “Further Information” indicated that the EAW had been issued on 21 February 2005; that the UK authorities had been notified about it in 2010 (presumably after information that the Appellant was in this country); and that there was no information as to why it took until 2014 for the warrant to be certified, but that it was reasonable to assume that there was no precise information as to the Appellant’s whereabouts until then.[45]Against that background, the District

Judge continued:

“Happily the Requested Person, his partner and their two children are in good health although it was mentioned in evidence that a concern had been raised about their nine year old son Tomasz who had some blood in his urine which needs to be investigated. It is clear that extradition will cause both emotional upset and financial hardship to the family but that is often the regrettable result of such an order. This is especially so because the Requested Person’s wife does not drive and she works as a dinner lady on a limited income. To their credit, the family has never lived on benefits and no enquiries have been made about the family’s entitlement to benefit in the hope that extradition will not be ordered. I concluded that the public interest in extradition outweighs the Article 8 right to family and private life of the Requested Person and his family members, that extradition would be proportionate in this case and I rejected the Article 8 argument.”
[46]On the Appellant’s behalf, Miss Townshend drew my attention to the familiar principles enunciated in Norris and HH (above) – underlining, in particular, the correct approach in relation to the Appellant’s children and also to delay. She further drew attention to the errors to be avoided when conducting the requisite analysis.[47]As to delay, Miss Townshend reminded me that in HH at [147] Lord Kerr stated that:
“delay in applying for extradition may reach the weight to be attached to the public interest in maintaining an effective system of extradition”
. She submitted that delay had been deemed highly relevant, in many cases decisive, of the proportionality of extradition with Article 8 – including cases involving Appellants who had been found to be fugitives. She went on to draw my attention to a number of cases in which such issues had been considered, in particular: Jusczczak v Circuit Court in Poznan, Poland [2013] EWHC 526 (Admin); Majchrzak v Poland [2013] (unreported); Chmura v Poland [2013] EWHC 3896 (Admin); Matuszewski v Regional Court in Radom, Poland [2014] EWHC 357 (Admin); and Glica v Regional Court of Kielce, Poland [2014] EWHC 359 (Admin). To those I would add Tomaszewicz v Poland [2013] EWHC 3670 (Admin) and Slawonir Oreszczynsi v Krakow District Court, Poland [2014] EWHC 4346 (Admin).[48]There was some debate in argument as to how the Court should approach an appeal put on the basis that the relevant judge erred in finding that extradition was a proportionate interference with Article 8 rights. Miss Farrant, for the Respondent, relied upon the then recent decision of the Divisional Court in Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin) (“Belbin”), but Miss Townshend pointed to Re B (A Child) (FC) [2013] UKSC 33 and to the judgment of Lord Neuberger at [93] & [94] (with whom Lord Clarke at [140] agreed) as to the different ways in which an appellate judge might consider a trial judge’s conclusion on proportionality (with a scale of seven potential conclusions ranging from one that it was the only possible view, to one that it was an unsupportable view) and argued that it was the correct approach.[49]At [93] Lord Neuberger said this:
“There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge’s conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge’s view is in category (i) to (iv) and allowed if it is category (vi) or (vii). As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge’s decision was not based on his assessment of the witnesses’ reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge’s decision was wrong, then I think that she should allow the appeal.”
[50]It is unnecessary to set out the argument in any further detail as the position has since been resolved by the decision of the Divisional Court (presided over by the Lord Chief Justice) in Polish Judicial Authorities v Adam Celinski & others [2015] EWHC 1274 (Admin) (“Celinski”).[51]As to hearings at first instance the court ruled, amongst other things, that:(1) The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in Norris (above) and HH (above). In future, absent further guidance from a specially constituted Divisional Court or the Supreme Court, it would not be necessary to cite any other authorities. In the latter case at [8] (above) Baroness Hale JSC made clear, at subparagraphs (3), (4) and (5), that the question raised under Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition; that there was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that the UK should honour its international obligations; that the UK should not become a safe haven; and that the public interest would always carry great weight, but that the weight varied according to the nature and seriousness of the crime involved (emphasised again by Baroness Hale JSC, and also by Lord Judge LCJ, Lord Kerr JSC and Lord Wilson JSC).(2) It was important that the judge bore in mind, amongst other things, that: (i) HH was concerned with cases that involved the interests of children, and the judgments must be read in that context [8]. (ii) The public interest in ensuring that extradition arrangements are honoured is very high, as is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice (both of which factors would be expected to be addressed in the judgment) [9]. (iii) The decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect – particularly since the UK has been subject to the CJEU (which has stressed the importance of mutual confidence and respect) since 1 December 2014 [10]. (iv) The independence of prosecutorial decisions must also be borne in mind [11]. (v) It is also important for the judge to bear in mind that factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; and the judge must also take into account that personal factors relating to family life which will need to be brought into the balance under Article 8, will also form part of the matters considered by the court in the requesting state in the event of conviction [12]. (vi) A structured approach to Article 8 cases is essential, given that each case will turn on the facts found by the judge and the balancing of the considerations set out in Norris and HH [14 (ii)]. (vii) The approach should be one in which the judge, after finding the facts, sets out a list of the “pros” (militating for extradition) and “cons” (militating against extradition) in “balance sheet” fashion, and then sets out his reasoned conclusion as to the result of the balancing exercise and why extradition should be ordered or the defendant discharged [16] & [17].[52]As to the approach on appeal, the Court (at [23]) endorsed the general approach of Beatson LJ at [66] in Dunham v USA [2014] EWHC 334 (Admin) and of Aikens LJ in Belbin (above), but concluded that the application of that approach was likely to be more consistent by use of the analysis of Lord Neuberger at [93] & [94] in Re B (above). Accordingly, in this context, the single question now for an appellate court is whether or not, applying Lord Neuberger’s analysis, the Judge made the wrong decision. It is only if he / she has done so that an appeal can be allowed. Findings of fact, especially when evidence has been heard, must ordinarily be respected and the focus must be on the decision itself – errors and omissions in the reasoning do not, of themselves, necessarily show that the decision was wrong.[53]In the light of the decision in Celinski, Miss Townshend made further written submissions consolidating her arguments in relation to this ground. She submitted that the District Judge was wrong to find that extradition would be a proportionate interference with the Appellant’s private and family life under Article 8 because: i) His factual findings on a relevant factual issue of whether the Appellant was a fugitive were not supported by evidence. ii) The offences alleged were not trivial, but neither were they serious – for example, offences 22-31 were not alleged to involve dishonesty. iii) Insufficient account was taken of substantial and undoubtedly culpable delay on behalf of both the Respondent and the NCA – see [33] above. No explanation was provided by either for the significant 9 year delay (2005 – 2014) between the issue of the warrant and certification – which was particularly difficult to accept as reasonable given that the NCA had discovered a possible UK address for the Appellant in 2010 but nothing was done until 2014. iv) The District Judge failed to give sufficient weight to the Appellant’s family life in this country as the interference with the family life of the Appellant’s partner (with whom he has lived a settled life in this country for over 14 years) and young children would have a devastating impact – in circumstances where the Appellant had been in continuous employment since his arrival in this country and his partner works as a dinner lady.[54]As indicated above I have rejected the argument that the finding that the Appellant was a fugitive was not supported by evidence.[55]On 18 December 2015, in view of the long delay in the provision of this judgment, for which I must sincerely apologise, I invited Miss Townshend to update the Court, in writing, as to both the Appellant’s circumstances since the hearing before me on 25 March 2015 and any further submissions that she wished to make. In the result I was provided with a second proof of evidence (dated 5 January 2016) from the Appellant; a proof of evidence (dated 6 January 2016) from the Appellant’s partner Katarzyna Szan; some medical documents (dated February - April 2015) in relation to their son Thomas; and additional submissions on the Appellant’s behalf. In her written response Miss Farrant indicated that the Respondent did not oppose the admission of the fresh evidence, which I have therefore taken fully into account.[56]Miss Townshend submitted that the delay argument was heightened and compounded by events since the hearing in such a way that it was necessary to conduct the proportionality exercise afresh. She placed particular reliance on the following aspects, in summary, of the fresh evidence: i) In April 2015 (whilst the judgment in Celinski was awaited) the Appellant’s wife had an abortion (as she believed that she would be unable to cope with three children alone if the appeal was dismissed) and had suffered significant psychological scars as a result – leading to concerns as to the family’s welfare if she had to cope alone. ii) The health of Thomas (now aged 10) has also worsened; he has continued to suffer from bedwetting and anxiety and is due to see a paediatrician again in February. iii) The Appellant has been subject to strict conditions of bail including (until October 2015) a long curfew and thrice weekly reporting, his liberty has thereby been curtailed, he has been unable to plan anything with his family, and is suffering from extreme anxiety.[57]As to the curtailment of the Appellant’s liberty, Miss Townshend drew my attention to Kacailo v Latvia [2014] EWHC 2327 (Admin) – a case in which Burnett J (as he then was) found that extradition would be disproportionate given the time that the Appellant had been in custody and thereafter on tagged curfew - as compared to the sentence that he was likely to receive if convicted.[58]Miss Townshend further submitted that the family’s anxieties had been worsened by the fact that, if the Appellant was extradited, he would be away for an unknown period of time awaiting trial – as illustrated in July 2015 by the decision of the European Court of Human Rights in Rutkowski & Others v Poland (Application no’s 72287/10, 13927/11 and 46187/11) that there had been violations of Articles 6 and 13 in cases that had taken over 11 years and 13 years respectively, and that the operation of the remedy at national level was defective.[59]As to delay Miss Farrant, on behalf of the Respondent, underlined that: i) The decision to charge the Appellant had been taken quickly, and within weeks of that steps had been taken to try to bring the Appellant before the court – culminating in the preventative measure issued on 11 May 2001 and the domestic arrest warrant issued 8 days later. ii) The evidence showed that the search for the Appellant in Poland was ongoing from 2001, and that his family had been “repeatedly informed” of the search, but had not provided any information as to the Appellant’s whereabouts. iii) Further orders had been made in 2003, and the EAW was issued on February 2005 - within 9 months of the relevant provisions coming into force in Poland.[60]Whilst accepting that there was no evidence as to why the EAW had not been brought to the attention of the authorities in this country until October 2010, and that there was no evidence as to why it had not been certified until September 2014, Miss Farrant submitted that, given the finding that the Appellant was a fugitive, the Court should be cautious before finding that any of the delay was culpable, and that the District Judge had been entitled when conducting the balancing exercise to assume that there was no information as to the Appellant’s precise whereabouts until 2014.[61]As to the Article 8 balancing exercise generally, in her written Additional Submissions dated 17 January 2016 Miss Farrant submitted that: i) The Appellant could not demonstrate that the District Judge’s decision was wrong, and therefore it ought not to be interfered with on appeal. ii) Whilst the Respondent did not seek to gainsay the substance of the fresh evidence, it was not supported by any independent evidence, was over six months old in relation to Thomas, should be attributed only limited weight, and was not capable of being decisive. iii) Against the background that no evidence had been put forward as to the existence of a real risk of a flagrant breach of the Appellant’s Article 6 rights, the pilot judgment of the European Court of Human Rights in Rutkowski (above) should not be taken account of as a balancing factor – see [24] of the judgment of Cranston J in Komar v District Court of Torun, Poland [2015] EWHC 2547 (Admin). iv) The court had not been provided with evidence of factors capable of outweighing the high public interest in extradition. v) The following were decisive factors in favour of extradition in this case: a) The nature and number of the alleged offences – involving 56 offences of dishonesty said to have taken place over a two-year period and, in part, in the course of the Appellant’s business. b) The alleged offences are clearly viewed seriously in Poland, as they would be in this country - with each carrying a potentially substantial term of imprisonment with, in particular, offence 55 carrying a minimum term of 5 years and offences 1-31 & 34-53 each carrying a minimum term of 6 months, and dishonesty plainly being implicit in offences 22-31. c) The Appellant is a fugitive. d) There is no suggestion that the Appellant’s partner and family would not be able to access state support if he is extradited.[62]To state the obvious, each case of this type turns on its own facts. It is clear that the District Judge fully considered the principles identified in Norris and HH (both above). The question for me in considering his decision, applying Celinski (above) and thus Lord Neuberger’s approach is Re B (also above), is whether or not he made the wrong decision. In reaching my answer I have taken into account the matters urged upon me by both sides, as summarised at length above. In the balance against extradition, the District Judge took into account the considerable delay (albeit finding that it was reasonable to assume that the delay between 2010 and 2014 was explained by the fact that there had been no precise information about the Appellant’s whereabouts until 2014); the fact that the Appellant had a settled and industrious life in this country with his partner and two children, and was of previous good character; and the hardship likely to be caused to the Appellant’s partner and children. In the balance in favour of extradition (and having found that the Appellant was a fugitive), the District Judge took into account the public interest in extradition and (implicitly) the fact that the hardship caused to the Appellant’s family was likely to be no more than was often the result of an extradition order.[63]I have already rejected Miss Townshend’s argument that the finding that the Appellant was a fugitive was not supported by evidence. Indeed, I have concluded that the finding was right. In addition, there were other factors that the District Judge could have weighed in the balance in favour of extradition – namely that not only is the public interest in ensuring that extradition arrangements are honoured very high, but so also is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice; and, taken together, the alleged offences amounted to serious criminal conduct. Thus, even assuming that a significant proportion of the delay was culpable, and being as generous as possible to the Appellant and his family as to the hardship involved, it seems to me that on the evidence before the District Judge the only possible result of the balancing exercise was the conclusion that the interference with the private life of the Appellant and his family was outweighed by the public interest in extradition. Hence I conclude that the District Judge was not wrong, indeed was clearly right, to reach the decision that he did.[64]I make clear that I do not hold the Appellant’s conviction against him. I have carefully weighed the fresh evidence and additional factors that Miss Townshend has invited me to consider in carrying out a balancing exercise of my own. Again, the factors advanced on each side are summarised above. This is not, in my view, a case in which the curtailment of liberty to date equates to the likely sentence that the Appellant, if convicted, would receive. Even including the worsened anxieties arising from the decision in Rutkowski (without deciding the propriety or otherwise of doing so), and even continuing to assume in the Appellant’s favour that a significant proportion of the delay was culpable, and whilst being as generous as possible to the Appellant and his family as to the hardship involved, the balancing exercise, in my view, again results in the clear conclusion that the interference with the private life of the Appellant and his family is outweighed by the public interest in extradition.[65]Accordingly, this ground also fails.

Conclusion

[66]For the reasons set out above, this appeal is dismissed.