Wisniewski & Ors v Regional Court of Wroclaw, Poland & Ors [2016] EWHC 386 (Admin)

Case No CO/5756/2015Case No CO/5828/2015Case No CO/5997/2015[2016] EWHC 386 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/03/2016
Before
LORD JUSTICE LLOYD JONES AND MR. JUSTICE HOLROYDE
Between
WOJCIECH WISNIEWSKIAppellantsTOMASZ SAPORAppellantKAROLINA WIRYNSKAAppellantREGIONAL COURT OF WROCLAW, POLANDRespondentsREGIONAL COURT OF POZNAN, POLANDRespondentDISTRICT COURT IN TORUN, POLANDRespondent
Alun Jones QC and Laura Herbert (instructed by O'Keefe Solicitors) for Mr. WisniewskiAlun Jones QC and Natasha Draycott (instructed by Lawrence & Co.) for Mr. SaporAlun Jones QC and Michael Goold (instructed by Sonn Macmillian Walker Solicitors) for Miss WirynskaJohn Hardy QC and Julia Farrant (instructed by the Crown Prosecution Service) for RespondentsHearing Hearing dates: 11 February 2016
JudgmentLORD JUSTICE LLOYD JONES :
[1]There are before the court three appeals against extradition orders in conviction cases made pursuant to Part 1, Extradition Act 2003 which raise similar issues as to the availability of the bar to extradition on grounds of passage of time under section 14 of the 2003 Act in circumstances where the requested person had left the requesting State (Poland) whilst subject to a suspended sentence of imprisonment which has subsequently been activated. The appeals Wisniewski v Regional Court in Wroclaw, Poland

The appeals

[2]The extradition of Wojciech Wisniewski is sought by the Regional Court in Wroclaw, Poland pursuant to a European Arrest Warrant (“EAW”) issued on 29 May 2014 and certified by the National Crime Agency on 6 May 2015. He was arrested on 14 July 2015 at his home in Bognor Regis, West Sussex and produced for initial hearing at Westminster Magistrates’ Court. He has been on conditional bail throughout the proceedings. The extradition hearing took place before District Judge Grant on 4 November 2015 and on 20 November 2015 District Judge Grant made an extradition order. He now appeals against that order.[3]The EAW is a conviction warrant. The appellant is sought to serve a suspended sentence of two years’ imprisonment imposed on 27 March 2001 and implemented on 2 September 2005 for the following offences:(1) Fraud by false representation committed in the course of his employment on sixteen occasions between September and November 1999, the total value of the fraud being 6,600PLN;(2) Theft from his employer between 4 September and 29 October 1999, the total value of the theft being 4,602 PLN.[4]At box F the EAW gives the following account in relation to the Appellant’s involvement in the proceedings in Poland:
‘Under the binding sentence of the District Court… dated 27th March 2001… Wojciech Wisniewski was sentenced to a cumulative custodial sentence of 2 years. He attended the main trial which led to rendering the judgment, and was present when the judgment was proclaimed. Under the sentence dated 2nd September 2005… the execution of the said penalty was ordered, as during the probation period the convict evaded the probation officer’s supervision, and failed to make any payment by virtue of the duty imposed on him. The convict, summoned to arrive in prison in order to serve his sentence, failed to comply with the court’s order. The search activities carried out as a result proved unsuccessful. As a consequence of the person hiding from justice, under the decision dated 6th December 2006, the District Court for Wroclaw-Srodmiescie ordered his search under an arrest warrant. Having the foregoing in mind, the District Court for Wroclaw-Srodmiescie, competent for the enforcement proceedings, requested of the Circuit Court in Wroclaw that a European arrest warrant for the said person be issued.’
[5]The EAW further states that a domestic warrant was issued for the Appellant’s arrest on 6 December 2006.[6]The Requesting Judicial Authority served further information in these proceedings on 12 August 2015. This stated that:(1) The appellant was interviewed and pleaded guilty in the preliminary proceedings and before the court.(2) He was present when sentence was passed.(3) He was informed of his obligation to appear at any summons during the course of court proceedings and to notify the authorities of any change of address. He was under this obligation during the course of his sentence. He was aware of this obligation and signed a document to confirm this.[7]In his proof of evidence the appellant states that:(i) He arrived in the United Kingdom on 6 January 2005 in order to settle permanently here with his family and that prior to that he was in Sweden for a couple of months working.(ii) He was present at the trial in Poland on 27 March 2001 at which he was sentenced to 2 years imprisonment with a conditional suspension of its enforcement for a period of probation of 4 years.(iii) He states that the assertion in the EAW that he made no payments towards the financial penalty imposed is incorrect as he made a part payment on 21 September 2000 (prior to the imposition of the sentence). He accepts that he made no further payments although he explains his attempts to do so.(iv) He accepts that he was under probation supervision during his suspended sentence.(v) He was not aware of the activation of his sentence on 2 September 2005 and was thus unable to lodge an appeal or to undertake any other steps prescribed in the Polish Penal Code.[8]The defence has obtained and served translations of the court judgments from the hearings on 27 March 2001 and 2 September 2005. In its judgment on 2 September 2005 the court at Wroclaw found as follows:
“The evidence gathered in the case file shows that Wojciech Wisniewski, despite the generated income, has failed to pay any amount due resulting from the obligation imposed on him till this day nor has he undertaken any action to agree the repayment terms and conditions with the injured party. Moreover, during the hearing held on 14th May 2004, the convicted misrepresented that the payment had been made, but when he was requested to produce documents confirming the payment, he failed to do so. Finally he ceased communication with his probation officer failing to inform them about changing his place of residence, without informing anybody about that fact. ”
In the court’s opinion, the above shows that the convicted not only disrespected the obligation imposed on him, but he purposefully tried to avoid the fulfilment of that obligation - hence, only a decision to execute the conditionally suspended imprisonment will allow to carry out the preventive and educational functions of the penalty.’[9]In his judgment of 20 November 2015 District Judge Grant summarized the appellant’s evidence relating to the payment of his financial penalty which he found it to be ‘untruthful and unbelievable.’ He commented that the Appellant had appeared to be ‘physically uncomfortable’ when giving evidence which departed from the account he had given in his proof of evidence.[10]The District Judge stated that the appellant accepted that he had not informed his Probation Officer of his plan to travel to Sweden and then to the United Kingdom. He said that he had thought his case was closed.[11]With regard to section 14 of the 2003 Act the District

Judge concluded:

“I disagreed with both advocates and find that the requested person is not a classic fugitive but nevertheless a fugitive who was unlawfully at large when he travelled to the United Kingdom.”
He had been referred to the judgment of Mitting J. in Pinto v. Portugal [2014] EWHC 1243 Admin., but did not consider this settled law and preferred the approach of Supperstone J. in Budzik v. Regional Court in Tarnow, Poland [2015] EWHC 2856 and that of Ouseley J. in Salbut v. Circuit Court in Gliwice [2014] EWHC 4275 (Admin.). The District Judge therefore found that the appellant was not entitled to rely on the passage of time bar. He further found that the Appellant was “unlawfully at large when he travelled to the United Kingdom.” The District Judge concluded that extradition would not be unjust or oppressive.[12]With regard to Article 8, the District Judge cited Polish Judicial Authorities v Celinski & Ors. [2015] EWHC 1274 (Admin) and set out the factors favouring extradition and those militating against it. Amongst the former he included that the appellant was unlawfully at large when he arrived in the United Kingdom, having failed to repay compensation in full to the victims, having failed to comply with his probation supervision and having failed to report his change of address to the authorities. In referring to the latter he stated that it was not clear to what extent the appellant had failed to comply with the supervision requirement attached to his suspended sentence. The District Judge concluded that the former outweighed the latter, mainly because of the importance of compliance with international extradition obligations, and that a decision to extradite the appellant would be proportionate. He made an order for the appellant’s extradition.

Sapor v Regional Court of Poznan, Poland

[13]The extradition of Tomasz Sapor is sought by the Regional Court of Poznan, Poland pursuant to an EAW issued on 20 April 2015 and certified by the National Crime Agency on 19 June 2015. He was arrested on 24 September 2015 at Milton Keynes Police Station and produced for initial hearing at Westminster Magistrates’ Court. He has been on bail throughout proceedings. His extradition was ordered by District Judge Grant on 20th November 2015. He now appeals against that order.[14]The EAW is a conviction warrant. The appellant is sought to serve a sentence of 2 years’ imprisonment, originally suspended for 4 years with a requirement for probation supervision, following his conviction by the District Court of Poznan-Nowe Miasto on 11 June 2010 for two offences equivalent to theft and fraud by false representation: i. On 17 August 2008 in Poznan he stole a Maestro ATM card from the purse of Dorota Glowacka; ii. On 17 August 2008 he withdrew 300PLN from an ATM to the detriment of Dorota Glowacka; and which was implemented in its entirety on 5 October 2011.[15]At box D the EAW indicates that the Appellant was not present during his trial. It then states that:
‘the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial.’
It then states at Box E.2:
‘Tomasz Sapor was aware of the criminal proceedings against him. On 5th March 2010 he was formally charged with the offence, advised of his rights and duties, and questioned as a suspect in the case. Tomasz Sapor admitted to the offence and requested to be convicted without holding a full trial and given a sentence agreed upon with the prosecution. Tomasz Sapor was duly notified of the date of the hearing scheduled for 11th June 2010 - notice was sent to his latest address available in the court files. Advice of delivery was twice left in his mailbox, the addressee failed to collect the registered letter on time, which was returned to the sender- the District Court Poznan-Nowe Miasto and Wilda in Poznan. Pursuant to article 133 of Polish code of criminal procedure, if a letter cannot be served on the addressee in person, letters sent by post shall be deposited at the nearest public post office. The person serving the letter in this way shall leave a notice in the addressee’s mailbox or on the door to his abode or in another conspicuous place, informing the addressee when and where was the letter deposited and that it should be collected within 7 days; should that term expire without the addressee collecting the letter, the above notice shall be left once again at the addressee’s abode.’
[16]At box F the EAW states that a domestic warrant was issued for the Appellant’s arrest on 7th March 2012.[17]The extradition hearing took place before District Judge Grant on 4 November 2015. The appellant represented himself. The sole issue raised was whether his extradition would be disproportionate pursuant to Article 8. In his judgment delivered on 20 November 2015 the District Judge summarized the appellant’s evidence in relation to his involvement in the court proceedings in Poland as follows:
‘He said that the agreement with the Prosecutor was that he would receive a suspended sentence for the offences. He travelled to the United Kingdom on 27th September 2010. From 2008 to 2010 he was not living with his parents, which possibly explains why he did not receive any formal correspondence. He said that his mother had deregistered him from her address. He did not know why she took that action but he was not getting on with his parents at the time. He did not inform anyone of his change of address because there was no need to do so. He said he never had a Probation Officer. The requested person said that he was not aware that his suspended sentence was activated and that he would be required to serve it. He admitted that without his parents’ cooperation both the court and probation service would be unable to contact him.’
[18]The Appellant also gave evidence about his personal circumstances. He co-habits with his partner and their three-year old daughter. He has set up a building firm and his partner works in a warehouse. There will be a serious financial impact on his partner and child if he is extradited to Poland.[19]The District Judge noted that it was accepted on behalf of the Judicial Authority that there was no evidence that the appellant was aware of the activation of his sentence. The judge considered that he entered into an agreement with the Prosecutor concerning his sentence, legitimately chose not to attend court, but then left Poland shortly after the sentencing hearing.[20]The District Judge disbelieved the appellant’s evidence that he was not aware that he was under an obligation to inform the authorities of any change of address. Notwithstanding the fact that it is not stated in the warrant that he was under any such obligation, the District Judge stated that his:
‘…understanding from dealing with other similar cases is that the obligation to report any change of address in Polish criminal proceedings continues until the conclusion of the appeal process and also continues until the end of a suspended sentence of imprisonment.’
[21]The District Judge also disbelieved the appellant’s evidence that he was not aware of the probation requirement imposed as part of the suspended sentence.[22]With regard to section 14 of the 2003 Act the District

Judge concluded:

“Whilst not a classic fugitive in that he was aware of the date when his suspended sentence was activated, I concluded that the requested person was nevertheless a fugitive and unlawfully at large when he left Poland without complying with his requirement to submit to probation supervision and without informing the prosecutor or court of his change of address.”
As in the case of Wisniewski, the judge referred to the conflicting decisions in Pinto, Budzik and Salbut, rejecting the approach of Mitting J. in Pinto.[23]With regard to Article 8, the District Judge cited Celinski and set out the factors favouring extradition and those militating against it. In considering the former he considered the sentence to be harsh by the standards of this jurisdiction but was reminded by Celinski of the need to respect different sentencing levels in other countries. He considered the delay since sentence was imposed to be relatively short compared to most extradition warrants dealt with by that court. In considering the latter he noted that the amount of money obtained by the use of the stolen credit card was relatively modest. Nevertheless, he concluded that the former outweighed the latter, mainly because of the public interest in complying with international extradition obligations, and that a decision to extradite the appellant would be proportionate.[24]As the appellant was unrepresented at the extradition hearing there was no proof of evidence from him. At the hearing of his appeal, he applied for permission to adduce further evidence. The respondent, while not accepting the statements in the proof of evidence, did not oppose the application and we granted permission.[25]In relation to the proceedings in Poland he states:
“I was arrested in relation to offences of theft and fraud which took place in 2008. I was interviewed and had admitted to the offences at the police station stage, as the authorities had told me that I would receive a suspended sentence. I agreed to this, and was told that the details of such a suspended sentence would be communicated to me following the interview. I did not attend court for these matters, as I was informed that this would be a procedural matter that would be dealt with outside of court. I was never told of the conditions of the suspended sentence. This was despite me having provided the police with my contact details. Until I was arrested and underwent these extradition proceedings at the Magistrates Court, I did not know there was a condition of supervision with probation. I remained in Poland until 27 September 2010, after which I travelled to the UK to start a new life and find work. I have lived openly in the UK. … I did not know that my suspended sentence had been activated in June 2011. The first time I found out that I was wanted for these matters was when I was arrested in the UK on 24 September 2015.”

I have lived openly in the UK. …

[26]In the proof of evidence the appellant also gives evidence about his personal circumstances and states his concern about the wellbeing of his wife and daughter in the event of his extradition.

Wirynska v District Court in Torun, Poland

[27]The extradition of the Karolina Wirynska is sought by the District Court in Torun, Poland pursuant to an EAW issued on 19 December 2014 and certified by the National Crime Agency on 8 June 2015. She was arrested on 3 October 2015, produced at Westminster Magistrates’ Court and remanded on bail. An extradition hearing took place before District Judge Zani who on 20 November 2015 ordered her extradition.[28]The EAW is a conviction warrant. The appellant is sought to serve a sentence of one year’s imprisonment, suspended for three years, which was imposed on 20th December 2006 in respect of five offences of theft of cameras and a mobile phone committed while the Appellant was an employee of a shop between February 2006 and 16 June 2006. This sentence was activated on 15th June 2009.[29]Box D of the EAW states:
“In her statement made before the public prosecutor on 13 October 2006, Karolina Wirynska pleaded guilty and she agreed on the sentence with the prosecutor. The accused person did not appear during the court sitting on 20 December 2006 when the sentence was adjudged. The court passed the judgement in accordance with the motion of the prosecutor. The notice about the date of the court sitting and a copy of the sentence were sent to the accused person in accordance with the provisions of Article 133 of the Code of Criminal Procedure, but she did not collect them. Since Karolina Wirynska was absent from her place of residence, the person delivering the notices left advice of delivery twice within an interval of seven days notifying the requested person that the notices could be collected at her post office.”
[30]The Requesting Judicial Authority served further information in these proceedings on 15 October 2015. This stated that:(1) During a period of 3 years commencing 17 August 2006 the appellant was obliged to inform the authorities of any change of address for a period of longer that 7 days. She was instructed of this duty which she confirmed by her signature.(2) During the preparatory proceedings the appellant pleaded guilty and on 13 October 2006 she agreed to the penalty, including the obligation to pay compensation. She was aware of the duties imposed on her by the court and of the possibility that the conditionally suspended sentence might be implemented if the duties were not fulfilled.(3) The appellant was required to pay compensation in the amount of 4,295.00 PLN not later than 28 December 2006 but she did not comply.(4) On 23 June 2008 the District Court in Torun made an order that the appellant be supervised by a probation officer, with the intention of encouraging her to pay the compensation due and to avoid the necessity of implementing the suspended sentence. However, this could not be done because the appellant had moved from the address she had provided.(5) Her failure to pay the compensation due resulted in the decision of 15 June 2009 implementing the suspended prison sentence.(6) The District Court in Torun sent a copy of the decision implementing the suspended sentence to the address indicated by the appellant and also to the address where she was registered as permanently resident. These attempts were ineffective but the notice was deemed to have been served after 14 days from the first attempt to serve it.(7) The appellant was summoned to prison on 26 August 2009 but failed to attend pursuant to the summons and an arrest warrant was issued on 13th April 2010.[31]In his judgment of 26 November 2015 District Judge Zani summarized the appellant’s oral evidence concerning the Polish proceedings:(1) She accepted being arrested, pleading guilty to the offences and agreeing the penalty of 1 year’s imprisonment suspended for 3 years.(2) She accepted that she was made aware of the need to pay compensation but she had insufficient funds to do this.(3) She accepted that she did not inform the Polish authorities of her decision to leave Poland, describing it as a very spontaneous decision. However, she denied being informed of an obligation to inform the Polish authorities of any change of address.(4) She said that she was not aware that her sentence was going to be activated.[32]The District Judge, in the context of his discussion of Article 8, made the following findings in relation to the appellant’s status:
“This court finds that KW is unlawfully at large and that, in the circumstances, this clothes her with fugitive status. The reasons for this finding are: The Judicial Authority have sent further information wherein they have stated that KW had been notified on 17 August 2006 of the need to notify the relevant Polish authorities of any change of address for a period of more than 7 days. This she failed to do. The last registered address provided by her was an address in Torun, Poland (as set out in the EAW). Furthermore, KW failed to comply with the terms of probation supervision as ordered by the sentencing court. Also KW was summonsed on 26 August 2009 to surrender to the Polish penal institution to serve her sentence, but failed to do so.”
[33]With regard to Article 8, the District Judge set out the factors favouring extradition and those militating against it. In this regard he concluded that the former outweighed the latter. He emphasised the need to comply with international obligations and his view that the offences set out in the EAW were serious and involved a breach of trust. He considered that a decision to extradite the appellant would be proportionate. He made an order for the appellant’s extradition. The applicable law Passage of time

The applicable law

[34]Section 11 of the 2003 Act provides:
“11 Bars to extradition iii. If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of – … 1. the passage of time” iii. If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of – … 1. the passage of time”
[35]Section 14 of the 2003 Act provides:
“14 Passage of time A person's extradition to 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– (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it).” (a) committed the extradition offence (where he is accused of its commission), or (b) become unlawfully at large (where he is alleged to have been convicted of it).”
[36]In his speech in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, a case on the Fugitive Offenders Act 1967, Lord Diplock addressed generally the significance of the passage of time in extradition cases. Section 8(3)(b) of the 1967 Act empowered the High Court to discharge an applicant if it appeared that “by reason of the passage of time since he is alleged to have committed the offence….it would, having regard to the circumstances, be unjust or oppressive to return him”. He continued: “Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them. As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. So where the application for discharge under section 8(3) is based upon the ‘passage of time’ under paragraph (b) and not on absence of good faith under paragraph (c), the court is not normally concerned with what could be an invidious task of considering whether mere inaction of the requisitioning government or its prosecuting authorities which resulted in delay was blameworthy or otherwise. Your Lordships have no occasion to do so in the instant case.” (at pp. 782-783)[37]In Gomes v Government of the Republic of Trinidad and Tobago; Goodyer v Government of the Republic of Trinidad and Tobago [2009] 1 W.L.R. 1038 (‘Gomes and Goodyer’), the House of Lords, in applying section 82 of the 2003 Act (the equivalent provision to section 14 in Part 2 cases), affirmed the principle set out in Kakis that an accused person cannot rely on delay which he himself has caused in order to resist extradition. In a ringing endorsement of Lord Diplock’s approach in Kakis Lord Brown, the author of the report of the Committee, refers to the paragraphs set out above as “Diplock 1” and “Diplock 2”. ‘26… 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 his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would 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”. 27 There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years—for example, the disappearance of witnesses or the establishment of close-knit relationships—it would tend rather to encourage flight than, as must be the policy of the law, discourage it. Secondly, as was pointed out in Diplock para 2, deciding whether “mere inaction” on the part of the requesting state “was blameworthy or otherwise” could be “an invidious task”. And undoubtedly it creates practical problems. Generally it will be clear one way or the other whether the accused has deliberately fled the country and in any event, as was held in Krzyzowski [2007] EWHC 2754, given that flight will in all save the most exceptional circumstances operate as an almost automatic bar to reliance on delay, it will have to be proved beyond reasonable doubt (just as the issue whether a defendant has deliberately absented himself from trial in an inquiry under section 85(3) of the Act). But it will often be by no means clear whether the passage of time in requesting the accused's extradition has involved fault on the part of the requesting state and certainly the exploration of such a question may not only be invidious (involving an exploration of the state's resources, practices and so forth) but also expensive and time consuming. It is one thing to say… that in borderline cases, where the accused himself is not to blame, culpable delay by the requesting state can tip the balance; quite another to say that it can be relevant to and needs to be explored even in cases where the accused is to blame.’[38]Lord Brown stated (at [29]) that the rule that an accused should not be able to benefit from delay which he has caused should be “strictly adhered to”. He added: “We recognise, of course, that in a section 82(b) case [i.e. a conviction case] the defendant will by definition have been ‘unlawfully at large’ and will generally, therefore, be subject to the rule in Diplock paragraph 1. Given, however that in these cases he will by flight have brought upon himself such difficulties as may then ensue from the passage of time, we see no reason why he should not be required to accept them - again, save in the most exceptional circumstances. He, after all, will not merely be accused of the crime but will actually have been convicted of it.” (at [30])[39]These authorities have given rise to the non-statutory concept of a “fugitive” who is precluded from invoking the consequences of his conduct as a bar to extradition. The application of these principles in circumstances where a convicted person subject to a suspended sentence of imprisonment has failed to comply with the conditions of that sentence and has left the jurisdiction before the sentence is activated has been considered in a number of recent cases in which, however, very different views have been expressed.[40]In Pinto v Judicial Authority of Portugal [2014] EWHC 1243 (Admin) the requested person,who had been sentenced to a term of suspended imprisonment in June 2002, came to the United Kingdom in 2003 or 2004 having first obtained confirmation from the local chief of police that he could do so without infringing Portuguese law. The District Judge also accepted that the sole reason for the activation of his sentence was that he had failed out of poverty to pay the compensation ordered. The District Judge was not satisfied to the criminal standard that Pinto was a fugitive when he left Portugal. However, he found that, as Pinto knew the terms of his suspended sentence and that he had not complied with them, he must have known that the suspended sentence would be activated. By remaining in the United Kingdom and not returning to deal with the suspended sentence he was evading justice and at that point became a fugitive.[41]Allowing the appeal on both section 14 and Article 8 grounds Mitting J said: “Oppression can be relied upon by a requested person in a conviction case since he is alleged to have ‘become unlawfully at large’. A person can only become unlawfully at large if he knows that he is required to serve a sentence of imprisonment. It is not enough that he might be eligible to be called upon to serve that sentence of imprisonment. In a case such as this where the sentence is suspended, at the minimum he must know that the sentence has been activated. On the facts there is no room to doubt that he did not know that his sentence had been activated until he was arrested on 4 July 2013. Accordingly… the judge’s conclusion that he was a fugitive is wrong.” (at [6])[42]This passage in Pinto was expressly followed by King J. in Jankowski v Regional Court in Bialystok, Poland [2015] EWHC 2522 (Admin) and Irwin J. in Herman v Polish Judicial Authority [2015] EWHC 2812 (Admin). In the latter case Irwin J., having cited the passage from Pinto continued:
“I apply that approach, which I find to be persuasive to the question of whether this appellant is a fugitive. If it is correct that for an individual to be a fugitive because he is eligible to serve a sentence of imprisonment which he has not attended to serve, he must know of that sentence, then that requires careful application to the facts of this case. While it may very well be that this appellant guessed there might be enforcement proceedings in Poland, he did not know of them. He was not told of them. He was not present at the proceedings and he therefore cannot have known that the sentence had been activated. At the very least there is no evidence demonstrating that he knew the sentence had been activated.”
Irwin J looked afresh at the determinations in relation to both section 14 and Article 8. In the context of Article 8 he accepted the submission that, even if the requested person was not a fugitive, he was “close to it because of his failure to comply”. “… [T]here was considerable fault at the hands of the appellant. He must have known he should keep in touch. Had he done so, even with a phone call or a letter, none of this would have happened. It seems to me, therefore, that although he is not a fugitive, and I do not describe him as a quasi-fugitive, the Article 8 balance and proportionality balance come down in favour of his extradition.”[43]However, in Salbut v Circuit Court, Gliwice [2014] EWHC 4275 (Admin) Ouseley J. did not follow Pinto. In Salbut the requested person had been sentenced in 2007 to a sentence of imprisonment suspended for 5 years. In 2011 the sentence was activated because of his breach of conditions requiring him to keep in touch with his probation officer and to notify him of any change of address. Ouseley J. considered that he was a fugitive. “I am, however satisfied that the appellant had become a fugitive in relation to the conviction offence in these circumstances. By the time he had been sentenced and was subject to provisions which required him to keep in touch with the probation officer and let her know his whereabouts and had failed to do so, thereby failing to comply with the restrictions, he is properly described as unlawfully at large, but not before that point. I put it that way because I do not regard the phrase “unlawfully at large” as simply and only applying from the point at which the sentence was activated in all circumstances. I have been referred to, but have been unable to read, a decision of Mitting J in Pinto v Judicial Authority of Portugal [2014] EWHC 1243 (Admin). In that case, as best as I have been able to understand it, the appellant, having been given a suspended sentence in Portugal, came to the United Kingdom with the consent of the relevant official, kept in touch, but failed to pay the compensation, which was a further obligation under the suspended sentence. Mitting J held that he did not become unlawfully at large merely because he had failed to pay the sum of money given that he had come with the consent of the Portuguese police. Be that as it may, it does not seem to me that it deals with the position where somebody, although coming to the United Kingdom with permission, thereafter breaches terms that require him to keep in contact, thereby becoming somebody whose whereabouts are unknown to the authority which is entitled to know of them, putting it beyond their power to deal with him for the breach which is he is committing. In the alternative, if what Mitting J said in that case, and it would be a view to which I would naturally give the greatest weight before disagreeing, is that the point at which a person convicted becomes unlawfully at large where they had been subject to a suspended sentence is the point at which that suspended sentence is activated, then this appellant became unlawfully at large on 19 September 2011 when the sentence was activated. I say that because it would be the prior act of failing to keep in contact which would have given rise to his inability to be told that the sentence was being activated. It seems to me in those circumstances those are matters of his choice and decision, and he cannot complain that, by concealing his whereabouts, or thereby evading arrest, he is not unlawfully at large.” (at [8])[44]It appears that neither King J. in Jankowski nor Irwin J. in Herman was referred to the decision in Salbut.[45]However, Salbut was followed by Supperstone J. in Budzik v Regional Court of Tarnow, Poland [2015] EWHC 2856 (Admin). There the requested person had been sentenced in 2010 to a suspended prison sentence for offences of fraud. In 2013 it was activated by a decision of the court because he had failed to comply with a condition of the sentence requiring him to pay compensation to the victim. The appellant had left Poland within two months of the original sentence being imposed. Supperstone J rejected the appellant’s submission, founded on Pinto, that it is only when the appellant knows that a suspended sentence has been activated that he can be considered a fugitive. “I reject this submission. It is not settled law that a person can only become a fugitive when his suspended sentence is activated. In Salbut v Circuit Court in Gliwice [2014] EWHC 4275 (Admin) Ouseley J. held at (at para 8) that the phrase ‘unlawfully at large’ was capable of applying from the moment the conditions of such a sentence are breached. In the present case the Appellant admitted in his evidence that he was aware when he left Poland that he had to pay compensation. He did not do so. I accept Miss Farrant’s submission that he therefore can properly be said to have become unlawfully at large as soon as he failed to meet the payments. The District Judge was entitled, in my view, to find that he was a fugitive from the time that he left Poland and failed to comply with the requirements under his suspended sentence. In any event, as Ouseley J. observed when granting permission to appeal: whether or not the Appellant is a fugitive seems unlikely to matter since he knew that he was not complying with the requirements of suspension and left Poland knowing that he would be imprisoned if he stayed.” (at [15])

Article 8 ECHR

[46]The approach to be followed where Article 8 of the ECHR is engaged in extradition proceedings was considered by the Supreme Court in Norris v. Government of the United States of America (No. 2) [2010] UKSC 9; [2010] 2 AC 487. In HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 Baroness Hale drew the following conclusions from Norris:
“(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation and expulsion, but the court has still to examine carefully the way in which it will interfere with family life.” (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no ‘safe havens’ to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”
[47]More recently, in Polish Judicial Authorities v. Celinski [2015] EWHC 1274 (Admin) the Divisional Court (Lord Thomas of Cwmgiedd CJ, Ryder L.J. and Ouseley J.) emphasized that judges in extradition hearings, when applying the principles set out in Norris and HH should bear in mind a number of matters which may be summarized as follows.(1) HH concerned three cases each of which involved the interests of children.(2) The public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the United Kingdom as a state willing to accept fugitives from justice.(3) The decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect.(4) Decisions on whether to prosecute an offender in England and Wales are on constitutional principles ordinarily matters for the independent decision of the prosecutor save in circumstances set out in authorities such as A (RJ) [2012] 2 Cr. App. R. 8.(5) 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.(6) In relation to conviction appeals: (a) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge has before him. (b) Each Member State is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a judge in the United Kingdom to second guess that policy. (c) It will therefore rarely be appropriate for the court in the United Kingdom to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. (at [7] – [13])[48]Of particular importance to these appeals are the observations of the Divisional Court in Celinski in relation to suspended sentences. “… [I]f a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence.” (at [13])[49]The Divisional Court in Celinski also addressed the correct approach of the appellate court to appeals on Article 8 grounds. “The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong… that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.” (at [24]) Discussion Article 14

Discussion

[50]It seems to me that two issues have become confused here. One is whether a person is unlawfully at large within section 14(b) of the 2003 Act. The other is whether a person is to be considered a fugitive in the particular sense in which that term is employed in Gomes andGoodyer to refer to a status which precludes reliance on passage of time as founding a statutory bar to extradition when it results from the fugitive’s own conduct. Both issues have an important but distinct bearing on whether the passage of time may be invoked by a requested person as a bar to extradition. “Unlawfully at large”[51]The term “unlawfully at large” is employed by section 14. The effect of section 14(b) and the words “if (and only if)” is that in a conviction case the only passage of time on which reliance may be placed as barring extradition under section 14 is that since the person became unlawfully at large. As a result, it is normally to be expected that a requested person would seek to establish that he was unlawfully at large at the earliest possible date so as to invoke the longest possible period of time as a bar to extradition. As Ouseley J. observed in granting permission to appeal in the case of Wisniewski, it is obviously in the interest of the convict to have as early a date for becoming unlawfully at large in order to increase the period available under section 14(b).[52]Section 68A of the 2003 Act, which was added by the Police and Justice Act 2006, provides a definition of “unlawfully at large”. However, that definition does not apply for the purposes of sections 14 and 63. This indicates that the expression may bear different meanings in different contexts and that caution is required. The words in their plain meaning suggest that a person who is unlawfully at large is liable to arrest without further order or judicial process. (See, generally, Julie Ginova v. The Government of the Czech Republic [2003] EWHC 2187 (Admin) per Dyson LJ at [7].) Furthermore, an EAW is defined by Article 1 of the Framework Decision as a “judicial decision … with a view to the arrest and surrender … of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”. As Mr. Hardy QC points out, it follows that a conviction EAW cannot be issued in respect of a person who has yet to become liable to serve a custodial sentence. I would, therefore, respectfully disagree with the observation of Ouseley J. in Salbut v. Circuit Court Gliwice (at [8]) that “by the time the requested person had been sentenced [to a suspended sentence] and was subject to provisions which required him to keep in touch with the probation officer and let her know his whereabouts and had failed to do so, thereby failing to comply with the restrictions, he is properly described as unlawfully at large, but not before that point.” In my view a person is not unlawfully at large within section 14(b) when he is not subject to an immediate sentence of imprisonment and it would require a further judicial act before he could be lawfully detained. (For the purposes of this discussion, I set to one side the question whether a requested person may be considered unlawfully at large because a warrant for his arrest has been issued in the requesting State but the suspended sentence has not yet been activated. That is not the case in any of the appeals and the point was not argued before us.)[53]I note that in Wisniewski’s case District Judge Grant held that the appellant was “unlawfully at large when he travelled to the United Kingdom”. I am unable to agree. At 6 January 2005 when the appellant travelled to the United Kingdom (and, indeed, some months earlier when, on his account, he travelled to Sweden to work) he was subject to a suspended sentence and may have been in breach of the terms of that sentence, but the sentence was not activated as a term of immediate imprisonment until 2 September 2005 and therefore he was not unlawfully at large. The same is true of District Judge Grant’s conclusion in Sapor’s case that the appellant was unlawfully at large when he left Poland on 27 September 2010 without complying with his requirement to submit to probation supervision and without informing the prosecutor or court of his change of address. In that case the suspended sentence was not implemented until 5 October 2011. In my view Sapor did not become unlawfully at large until that date.[54]Can a person be unlawfully at large if he is unaware that he is required to serve a sentence of imprisonment so that, in the case of a suspended sentence, the minimum the requested person must know is that the sentence has been activated? With respect to the observations of Mitting J. in Pinto and Irwin J. in Herman, I can see no reason to impose such a restriction on the plain meaning of the words in section 14(b). Whether a person is unlawfully at large within this provision depends on whether he is at large in contravention of a lawful sentence under the applicable legal system. This is an objective state of affairs to which his knowledge and understanding are irrelevant. This was common ground before us on these appeals. Moreover, if the words in section 14(b) were given the restricted meaning favoured in Pinto and in Herman, a requested person who is unaware of the activation of his suspended sentence until he is arrested under an EAW would not be able to invoke section 14 at all.[55]In none of the appeals presently before this court was there any evidence that it was a condition of the suspended sentence that the convicted person should not leave Poland during the period of suspension of the sentence. However, such a condition would not affect the answer to the question whether a person was unlawfully at large within section 14(b). In such a case, leaving Poland would be a breach of a condition of the sentence and might expose the convict to enforcement action including the activation of the sentence of imprisonment. However, unless the act of leaving Poland had the effect of automatically activating the sentence of imprisonment, I do not consider that the convict would be unlawfully at large for this purpose until the sentence was activated.[56]Mr. Jones drew to our attention the hypothetical case of an extradition request where there had been serious delay on the part of the requesting state but the requested person was not during that period unlawfully at large within section 14 because he had never been made subject to any order for his detention. Mr. Jones submitted that in such circumstances it would be necessary for the court to adopt a purposive interpretation of section 14 so as to extend its protection to the period before the requested person became unlawfully at large. I accept that it follows from what I consider to be the correct reading of section 14(b) that there may be cases in which a requested person will be, for reasons unconnected with his conduct, unable to rely on section 14 because he has not been unlawfully at large. However, even if the interpretation for which Mr. Jones contends were open to the court, which I doubt, it would not be necessary because in such circumstances Article 8 ECHR would provide a safety net which would permit the effect of passage of time to be brought into account. (See HH v. Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 per Lady Hale at [6]; Lysiak v. District Court Torun, Poland [2015] EWHC 3098 (Admin).)[57]I consider that each of the appellants in the appeals before us became unlawfully at large within section 14(b) only when their respective prison sentences were activated. This too was common ground before us on these appeals. Thus Wisniewski became unlawfully at large on 2 September 2005, Sapor on 5 October 2011 and Wirynska on 15 June 2009. Prior to those respective dates they may have been liable to be detained but they were not unlawfully at large. Accordingly, to the extent that they may otherwise be able to invoke section 14, the relevant period of time is that since those respective dates.

Fugitive

[58]“Fugitive” is not a statutory term but a concept developed in the case law, in particular in Gomes andGoodyer which elaborates the principle stated in Kakis. In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14. Before this rule can apply, a person’s status as a fugitive must be established to the criminal standard (Gomes andGoodyer at [27]).[59]On behalf of the appellants, Mr. Jones submits that in the passage in his speech in Kakis referred to in Gomes andGoodyer as Diplock 1, Lord Diplock was limiting the concept of a fugitive to cases where the person had fled the country, concealing his whereabouts or evading arrest. However, I consider that these were merely examples of a more general principle underlying Kakis and Gomes andGoodyer. Where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. Rather than seeking to provide a comprehensive definition of a fugitive for this purpose, it is likely to be more fruitful to consider the applicability of this principle on a case by case basis. Similarly, a process of sub-categorisation involving “quasi-fugitives” and “fugitives not in the classic sense” is unlikely to be helpful.[60]How does this work in relation to a breach of a suspended sentence? Mr. Hardy submits that the District Judge in each of the cases before us was entitled to find that the appellant had left Poland voluntarily with the inevitable consequence that he or she would not comply with his or her obligations pursuant to a suspended sentence, which in turn would inevitably result in its activation. Accordingly, he submits, the District Judge was right to hold that each appellant was precluded from relying on the passage of time bar to extradition. In one respect this seems to me to suggest too stringent a test; the activation of the sentence need not be an inevitable consequence of the appellant’s conduct. I consider that a person subject to a suspended sentence who voluntarily leaves the jurisdiction in question, thereby knowingly preventing himself from performing the obligations of that sentence, and in the knowledge that the sentence may as a result be implemented, cannot rely on passage of time resulting from his absence from the jurisdiction as a statutory bar to extradition if the sentence is, as a result, subsequently activated. The activation of the sentence is the risk to which the person has knowingly exposed himself. In my view, such a situation falls firmly within the fugitive principle enunciated in Kakis and Gomes andGoodyer. The fact, if it be the case, that a person’s motive for leaving the jurisdiction was economic and not a desire to avoid the sentence, does not make the principle inapplicable.[61]For these reasons I am unable to accept the submission of Mr. Jones that this court should approach the present appeals by simply weighing and balancing factors as, he submits, occurred in Union of India v. Narang [1978] AC 247. Since that decision, the House of Lords in Kakis and Gomes andGoodyer has developed and reaffirmed the fugitive principle. Nor do I consider that the decision of the Supreme Court in HH v. Italy [2012] UKSC 25 in any way diminishes the authority of those cases.[62]In the alternative, Mr. Jones submits that a requested person only becomes a fugitive when he is aware of the activation of the suspended sentence. As we have seen, one line of authority in the Administrative Court supports such a view. However, I have come to the firm view that the approach of Ouseley J in Salbut is correct on this point and should be followed. It is not necessary, in order that a requested person be treated as a fugitive, that he knows that his sentence has been activated. It is enough that he knows that it is liable to be activated because of his breach of the terms of its suspension. Any other approach would be inconsistent with the principle in Kakis and in Gomes and Goodyer and would introduce considerable uncertainty into this area of the law. In particular, as Ouseley J. points out, a person who breaches conditions of his sentence which require him to keep in contact thereby becomes somebody whose whereabouts are unknown to the authority which is entitled to know of them and puts it beyond the authority’s power to deal with him. It is his conduct in breach of the suspended sentence that has given rise to his lack of knowledge that the sentence has been implemented. He has as a matter of choice placed himself beyond the reach of the criminal justice system concerned. I consider that he is properly to be regarded as a fugitive from the legal process in his case. Where he has, in this way, brought about the delay himself, the passage of time bar should not be available to him.[63]Against this background, I turn to consider the individual appeals.

Wojciech Wisniewski

[64]Wojciech Wisniewski was sentenced on 27 March 2001 to 2 years’ imprisonment suspended for 4 years subject to a requirement of probation supervision. A condition of suspension required him to pay compensation to the victim within 1 year of 4 April 2001. Before the expiry of the period of suspension, he travelled to Sweden and then to the United Kingdom. The sentence of imprisonment was activated on 2 September 2005. The District Judge found that he was in breach of obligations to notify the authorities of a change of address and to pay compensation. There was evidence which entitled the District Judge to come to those conclusions to the criminal standard. In these circumstances, I consider that Mr. Wisniewski became a fugitive when he left Poland without notifying the authorities of his new address. His claim that he was unaware of the implementation of the suspended sentence until he was arrested on the EAW is immaterial. He is a fugitive and the District Judge correctly concluded that he is not entitled to rely on the passage of time under section 14(b).[65]In any event, the District Judge was clearly correct to conclude in the alternative that, having regard to all the circumstances of the case, it would be neither unjust nor oppressive by reason of the passage of time to extradite Mr. Wisniewski to Poland.

Tomasz Sapor

[66]Tomasz Sapor was sentenced on 11 June 2010 to 2 years’ imprisonment suspended for 4 years subject to a requirement of probation supervision. Only 3 months later on 27 September 2010 he travelled to the United Kingdom. The sentence of imprisonment was activated on 5 October 2010. There was no evidence before the District Judge of the conditions of the suspended sentence other than that he was subject to probation. In particular there was no evidence that he was under an obligation to notify the authorities of any change of address. Nevertheless, the District Judge did not believe Mr. Sapor’s evidence that he was not aware of the probation requirement imposed as part of the suspended sentence or that he was under an obligation to report a change of address. Here the judge said he would draw on his understanding from dealing with other similar cases that in Polish criminal proceedings the obligation to report any change of address continues until the end of a suspended sentence of imprisonment. I doubt whether the District Judge was entitled to draw on the evidence in other cases in this way (c.f. Jabczynski v. Circuit Court in Olsztyn II Penal Department, Poland [2013] EWHC 1803 (Admin) per Foskett J. at [3]). However, in the circumstances of this case where this appellant left Poland permanently for the United Kingdom just 3 months after the suspended sentence and probation requirement were imposed, and the suspended sentence was subsequently activated, I consider that it was open to the District Judge to draw an inference from the primary facts proved that the activation was caused by his breach of the conditions of his sentence and that his status as a fugitive was established to the criminal standard.[67]Accordingly, notwithstanding the District Judge’s acceptance that this appellant did not know of the activation of his sentence, he is a fugitive and the District Judge correctly concluded that he is not entitled to rely on the passage of time under section 14(b).[68]In this case the District Judge did not consider in the alternative whether it would be unjust or oppressive by reason of the passage of time to return this appellant to Poland. Having regard to all the evidence before the District Judge, I have come to the clear conclusion that it would not. His extradition would undoubtedly cause hardship to his family, but that does not meet the higher standard of oppression.

Karolina Wirynska

[69]Karolina Wirynska was sentenced on 20 December 2006 to 1 year’s imprisonment suspended for 3 years. Before the expiry of the period of suspension she travelled to the United Kingdom in October 2008. The sentence of imprisonment was activated on 15 June 2009. When summonsed on 26 August 2009 to surrender to custody she failed to do so. The District Judge found that she was in breach of her obligations to notify the authorities of a change of address and to comply with the terms of probation supervision. There was evidence which entitled him to come to those conclusions to the criminal standard. In addition, she accepted that she was in breach of conditions requiring her to pay compensation. In these circumstances, I consider that Miss Wirynska became a fugitive when she left Poland without notifying the authorities of her new address. It is immaterial whether or not she was aware of the implementation of the suspended sentence. She is a fugitive and the District Judge correctly concluded that she is not entitled to rely on the passage of time under section 14(b).[70]In her second witness statement dated 19 November 2015 Miss Wirynska states that at the end of 2009, when she was living in the United Kingdom, she telephoned her probation officer, Ms Langowska, in Poland. Miss Wirynska states that it was on the day she heard that her uncle had died. She phoned Ms Langowska to tell her what had happened and she tried to comfort her. On Miss Wirynska’s account, she told Ms Langowska that she was now living in the United Kingdom and Ms Langowska said “that it is fine but I should deal with the matter in Poland”. Miss Wirynska said that she knew but she had no money. Ms Langowska said nothing about any proceedings against her or that the sentence was or was likely to be activated. Miss Wirynska states that the conversation was short as she had limited funds on her pre-paid phone.[71]The District Judge does not refer to this evidence in his judgment. However, I note that Miss Wirynska does not suggest that she provided the probation officer with her address in the United Kingdom. On the contrary the EAW and further information provided by the judicial authority state that the last registered address provided by her was in Torun, Poland. Furthermore, no attempt was made to pay the compensation ordered until after the execution of the EAW. This evidence does not affect my conclusion that she is a fugitive.[72]In this case the District Judge does not appear to have considered in the alternative whether it would be unjust or oppressive by reason of the passage of time to return this appellant to Poland. Having regard to all the evidence before the District Judge, I have come to the clear conclusion that it would not.

Article 8 ECHR

[73]Mr. Wisniewski and Mr. Sapor also appeal against the extradition order on the basis of Article 8.[74]In all three cases the District Judge directed himself correctly by reference to Norris, HH and Celinski. In the cases of Wisniewski and Sapor the District Judge set out at considerable length in his judgment the principles stated in Celinski. In all three cases the District Judge listed those factors in favour of extradition and those militating against extradition before performing the required balancing exercise.

Wojciech Wisniewski

[75]In Wisniewski’s case the District Judge identified the following as supporting extradition.(1) The public interest in compliance with international extradition obligations.(2) The fact that there was a two year prison sentence outstanding in respect of 23 offences of fraud. Here I note that although the warrant relates to only two convictions it is clear from the particulars in Box E of the EAW that these relate to 23 different instances of fraud or theft. Accordingly, contrary to the submission on behalf of the appellant, the judge was correct in his description of the offending.(3) The requested person was unlawfully at large when he arrived in the United Kingdom, having failed to repay compensation in full to his victims, having failed to comply with his probation supervision and having failed to report his change of address to the authorities. For reasons explained earlier in this judgment, I consider that when Mr. Wisniewski arrived in the United Kingdom he was a fugitive but was not unlawfully at large. However, this has no bearing on the substance of the considerations invoked by the District Judge.[76]The District Judge identified the following considerations as militating against extradition.(1) The requested person had established a settled life in the United Kingdom with his partner and two daughters. Article 8 was clearly engaged.(2) It was not clear to what extent he had failed to comply with the probation supervision requirement. However, he had failed to pay outstanding compensation to the victims. Here I note that, while he had made some effort to compensate his victims, not all had been compensated and so it remains a proper consideration.(3) The offences were old and dated back to 1999.(4) The impact on his family would be considerable both emotionally and financially. In particular, he gave importance to Ms Stepura’s medical condition and forthcoming surgery.(5) The statute of limitations for enforcing the sentence will expire on 4 April 2016.[77]The appellant criticises the District Judge for placing too much emphasis on the public interest at the stage of the balancing exercise. He concluded that “the factors that favour extradition outweigh the factors militating against extradition mainly on the basis of public interest”. However, the judge was entitled to conclude that this vital consideration should be so influential in arriving at his conclusion. Having regard to all these considerations – and in particular the health of Ms Stepura – I have come to the clear view that the District Judge’s conclusion on proportionality was correct. (See Re B (A child) [2013] UKSC 22 per Neuberger SCJ at [93], cited in Celinski at [21].)

Tomasz Sapor

[78]In the case of Sapor the District Judge identified the following considerations as supporting extradition.(1) The public interest in compliance with international extradition obligations.(2) A term of 2 years’ imprisonment remained to be served. Although the District Judge considered the sentence harsh by UK standards, he reminded himself, correctly, of the need to respect different sentencing levels in other Member States.(3) The appellant left Poland while subject to a suspended sentence in breach of obligations to notify his change of address and in breach of probation supervision requirements. I have addressed earlier in this judgment the lack of evidence on these points. However, I consider that the District Judge was entitled to proceed on the basis that the appellant was in breach of the conditions of his sentence and that this resulted in the activation of the sentence of imprisonment. Whether he was unlawfully at large when he travelled to the United Kingdom does not affect the substance of the considerations invoked by the District Judge.(4) The delay since sentence was imposed is relatively short.[79]The District Judge identified the following considerations as militating against extradition.(1) The appellant had established a settled life in this country and his extradition would inevitably impact on his partner and daughter both emotionally and financially. Article 8 was clearly engaged.(2) He had not been convicted of any offence since arriving in the United Kingdom in 2010.(3) The amount of money obtained by the use of the stolen credit card was relatively small.[80]On behalf of this appellant it is submitted that the District Judge’s conclusion on Article 8 was irrational and unreasonable. However, it seems to me that it was a decision which was clearly open to the District Judge. Although the appellant was not represented below and had prepared no proof of evidence for the hearing, it is not suggested that the District Judge failed to take account of any relevant consideration. I agree with the appellant and the District Judge that the sum lost by the victim of this offending was relatively modest – some £50 – and that a sentence of two year’s imprisonment would certainly be considered harsh in this jurisdiction. However, it is important not to lose sight of the fact that the sentence originally imposed was a suspended sentence. Moreover, the District Judge correctly referred to the need to respect the sentencing policy of other Member States. He might have added that it is also important to respect the attitude of other Member States to the enforcement of suspended sentences. The District Judge in performing the balancing exercise, once again attached particular importance to the public interest in performing international extradition obligations. In my view he was entitled to do so. I consider that his conclusion on proportionality was correct.

Karolina Wirynska

[81]I have also considered Article 8 in the case of Miss Wirynska.[82]The District Judge identified the following considerations as favouring extradition.(1) The public interest in performing international extradition obligations.(2) The seriousness of the offences in respect of which the appellant was convicted.(3) The assertion by the judicial authority that she is a fugitive from justice.(4) Her failure to comply with the obligations of her suspended sentence.[83]He identified the following considerations as militating against extradition.(1) She has been settled in the United Kingdom since 2008. She has a fixed address and is in settled employment.(2) She has now paid compensation and an accompanying fine in full.(3) She has led a law-abiding life since coming to the United Kingdom.(4) She has no close family in Poland.(5) She asserts she is not a fugitive from justice.[84]The District Judge proceeded to weigh these factors. He attached great importance to this country meeting its international obligations in respect of extradition. He also considered that the offences were serious, involving a breach of trust. He did not find the competing considerations compelling so as to render her extradition disproportionate. I agree. I consider that his conclusion on proportionality was correct.

Conclusion

[85]For these reasons I would dismiss all three appeals. Mr

Justice Holroyde:

[86]I agree.

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