Burzynski v District Court of Poznan (Poland) [2017] EWHC 855 (Admin)

Case No CO/2868/2016[2017] EWHC 855 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 3 March 2017
Strand
London WC2A 2LL
B e f o r e:
SIR WYN WILLIAMS
(Sitting as a Judge of the High Court)
Between
BURZYNSKIAppellantv
Between
DISTRICT COURT OF POZNAN (POLAND)Respondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Malcolm Hawkes (instructed by Aneta Maziarz) appeared for AppellantMs Hannah Hinton (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T (Approved)

SIR WYN WILLIAMS: This is an appeal with the leave of Collins J against a decision of District Judge Coleman made on 2 June 2016 whereby the District Judge ordered the extradition of the appellant to Poland to serve a sentence of 12 months' imprisonment which had been imposed upon him many years ago.

[2]In the aftermath of the District Judge's decision an application for permission to appeal was made and considered on the papers. An experienced judge of the Administrative Court decided that there was no realistic prospect of success in an appeal. Undeterred, the application for permission was renewed and a judge of equal if not even greater experience of the proceedings in this court decided that there was a realistic prospect of success, hence the hearing today. I set those facts out at the outset to demonstrate that this case is one in which at the very least it is clear that judges of considerable experience within this jurisdiction could reach very different conclusions.[3]The basic facts are these. On or about 14 February 2002 when the appellant was aged in his late twenties, he engaged in what I will describe as a comparatively minor fraud. The fraud was perpetrated upon a bank in Poland and the sum at issue was of the order of £600 or £700. It seems that the fraud was perpetrated so as to assist the appellant's immediate family. He may have been a beneficiary personally. However, it is at least possible that he was simply assisting other family members. Whatever the precise circumstances of the offence and whatever the precise motivation for carrying it out, it was in my judgment properly to be regarded as a comparatively minor offence of its type.[4]The appellant pleaded guilty to an offence under Polish law at a hearing in 2003. Many months later he was sentenced to a term of one year's imprisonment, suspended for two years. In Mr Hawkes' skeleton argument at paragraph 4 he recites that the suspension was subject to two conditions, one of supervision and secondly paying either compensation or, to use his word, redress for the loss caused to the bank. It is common ground that the appellant did not pay the sum which was owing to the bank as he had been directed to do by the terms of the sentence. Accordingly, on 11 January 2005 the suspended sentence was activated.[5]At the hearing before the District Judge, there was a debate about quite what the appellant knew at the time he left the jurisdiction of the Polish court and came to the United Kingdom. It is common ground that he left Poland for the United Kingdom sometime in 2004.[6]Before the District Judge, it had been argued that the appellant did not know or may not have known the final outcome of his court case. About that, the District

Judge had this to say:

"I do not accept that this RP did not know the outcome of his court case. He was present at the hearing on the 14th November 2013 when he pleaded guilty to the offence and apparently gave evidence. He was back in court on 22nd January 2004. He chose not to attend the final hearing for judgement on the 29th but it is clear from his request of the 24th March 2004 to pay the compensation in instalments that he was aware of the outcome. My finding is that this RP knew of the sentence and deliberately left Poland knowing full well he had not complied with the requirements of his order."
On that basis, the District Judge found that the appellant was a fugitive from justice. In my judgment, that was a finding which was clearly open to her on the material available and no useful purpose, in the context of this case at least, would be served by seeking to determine at precisely what date the appellant became a fugitive.[7]Having left Poland in 2004 and having come to the United Kingdom in the same year, the appellant has set about developing a family and private life in this country. There is no dispute about the fact that since his arrival in the UK or at least from a time shortly thereafter he has made his home in south west Wales and he now lives in that area with his wife and son. I will return to the significance of the appellant's family life shortly.[8]The information available to the District Judge about events between about 2004 or 2005 and the appellant's arrest, at least so far as attempts to bring the appellant to justice is concerned, was sketchy. It is sufficient to recount the history by reference to Mr Hawkes' skeleton argument, paragraph 32. The decision to activate the suspended sentence was taken on 11 January 2005. On 24 April 2006 a domestic arrest warrant was issued. On 26 March 2012 the European Arrest Warrant was issued and on 13 December 2015 that warrant was certified.[9]The long periods of time between those steps are not explained in any evidence put in on behalf of the judicial authority. Mr Hawkes invites the court to the view that these long periods of time elapsing before steps being taken properly lead to an inference that there was no urgency about bringing the appellant to justice. In the context of this case, I accept that that is a proper inference, finding as I have that the appellant's offending was comparatively minor.[10]Before the District Judge two potential bars to extradition were raised. One related to section 2 of the 2003 Act, which I need not consider since this argument was put before the District Judge by Mr Hawkes as a protective measure, he acknowledging that as the law stood at the time he could not mount a successful defence to extradition based upon that section. That remains the position.[11]The battlefield before the District Judge was whether or not extradition should be categorised as disproportionate and a disproportionate interference with the rights of the appellant and his family under Article 8 of the European Convention on Human Rights. In respect of this issue it is as well to recognise what it was that the District Judge had before her by way of evidence. She had the European Arrest Warrant; she had an arrest statement; she had a proof of evidence of the appellant; a proof of evidence of his wife, or perhaps partner, it matters not which it is; and what are described as medical letters relating to their son, Michal. She also had a bundle of documents relating to the family's financial circumstances, and in particular a bundle of documents which included statements which demonstrated that the family home was the home of either the appellant or the appellant and his wife/partner together, and that it was subject to a mortgage.[12]The child of the family, Michal, was eleven years of age at the time of the hearing before the District Judge. He suffers from significant disabilities on account of a genetic illness. The illness is known as velocardiofacial syndrome. At paragraph 15 of his skeleton Mr Hawkes describes how that syndrome affects the child in his daily life. The syndrome means that Michal has what can be called colloquially a hole in the heart. This condition appears to have resolved but must be monitored regularly. I then quote directly from Mr Hawkes' paragraph 15. Michal has:
"b. Cleft palate; this has been operated on twice c. Speech and communication difficulties d. Learning difficulties; he is recognised as having special educational needs e. Hearing problems; Michal wears a hearing aid in his right ear f. Weak bones - he has had two operations for a broken arm - and leg pain; this may reflect the syndrome's characteristic calcium deficiency g. Mood swings, impulsive behaviour and immaturity; phobias h. Weakened immune system and frequent infections with high temperature i. Insomnia j. Dental problems: 11 teeth have recently been removed under anesthetic"
[13]At the time of the hearing, the evidence showed that the appellant and Michal's mother devoted a large part of their time to his care. Very much to everyone's credit involved with his care, Michal was able to attend a mainstream school although that was subject to an Individual Educational Plan or Individual Development Plan within the school and there were anxieties about the child's ability to mix with other children in a mainstream school.[14]The appellant gave oral evidence before the District Judge. His account of his family life was not challenged in the sense that he was accepted as being a truthful historian about the events which had occurred since he had come to this country in terms of the family life which he had developed. A proof of evidence was put in from his wife. She was not required to give evidence and her evidence was accepted as being accurate and truthful. It is as well to set out now what she had to say about Michal:
"Our son, Michal was born with a genetic disorder which translates into an array of health issues and diminished mental capability. Michal demands ongoing care and attention. To date he has undergone several surgeries including the on palate due to cleft palate. Michal's disorder has been compared to Down syndrome and he has difficulties speaking, hearing and communicating. He suffers with mood swings, is impulsive and suffers with various phobias. He has thin and fragile bones including teeth (11 of his teeth have been recently removed). In addition, Michal requires constant care as his immunity is weakened and as a result he suffers from frequent infections and fevers. When Michal's day is well-planned and organized he is less irritable and more calm. For that reason, we do not often go out and usually stay at home and try to keep Michal entertained. Michal feels uncomfortable in a crowd of people. Sometimes [the appellant] takes him to the cinema or swimming but those days are rare. Michal loves to spend time with his dad. [The appellant] is very crafty so him and Michal spend time together doing DIY. [The appellant] and I share everything. [The appellant] is an extremely supportive person and has a wonderful relationship with our son. He is a loving, patient father. I cannot imagine our life without him. I am unable to work full time due to Michal's condition so [the appellant] is the main breadwinner in our family. [...] [The appellant]'s extradition would have a disastrous effect on our family. Michal would not be able to understand his disappearance and I am worried how it would affect his health condition. When [the appellant] was arrested I had to make up a story for Michal that his dad had left for couple of days for work. He was anxious and nervous, kept on asking: 'where is daddy, when will he be back'? I know that [the appellant]'s extradition would destroy our son mentally."
[15]As Mr Hawkes and Miss Hinton acknowledge, at the heart of this case is a balancing exercise to be conducted in accordance with what is loosely called the Celinski criteria, in order to make an assessment about whether the extradition sought in this case would be a disproportionate interference with the family rights of the appellant, his wife and son.[16]On the face of it that is exactly what the District Judge did. She identified a number of factors which militated in favour of extradition and in particular the very great public interest in the United Kingdom honouring its obligations to extradite people who have been convicted of offences abroad. She also identified the factors which militated against extradition. At first blush, it might be difficult to see how this court could reach the conclusion that the judge fell into any kind of error, notwithstanding as I have observed at the outset of this judgment that this is the sort of case where judges might have very different views about the appropriate outcome.[17]Nonetheless, I have been persuaded by Mr Hawkes that there is at least one error in the District Judge's reasoning, and there may be two. The aspect which I do identify as an error is encapsulated in that part of the District Judge's judgment in which she outlines the factors which may militate against extradition. At paragraph 6, she says this:
"Michal would be deprived of his very loving and attentive father. He is not a baby however. It is said by Mr Hawkes that the effect on him would be devastating. That is an unsupported assertion."
I pause at this point. It is clear from the extracts from the witness statement of the child's mother which I have read that the mother was describing the effect of extradition in terms which are virtually identical to the submission which Mr Hawkes made to the judge. Ms Hinton points out that it is not uncommon for family members to use words like "devastating" when describing the effect of extradition in an attempt to avoid it. I proceed on the basis that Ms Hinton's submission about that is correct, and that I should be somewhat cynical about accepting at face value the suggestion that extradition would have a devastating effect.[18]However, the witness statement of the mother in my judgment does demonstrate that the effect of extradition on her and Michal would be, if not devastating, at least extremely serious. This is a child of 11/12 years of age who suffers significant disabilities and in consequence his carers have very significant responsibilities. The removal of Michal's father for a period of up to 12 months would in my judgment have a very significant, if not devastating effect upon this family unit.[19]In my judgment, the District Judge was wrong when she said that the effect said to be devastating was unsupported. It was the point made by the mother which was unchallenged, and on the face of it accepted by the judicial authority. In my judgment, the District Judge did fall into error in appearing to suggest that the effect of extradition, described as devastating or extremely significant or very significant, to use my words, was an unsupported assertion.[20]This is not a situation in which the District Judge has analysed the witness statement of the mother and given cogent reasons as to why she considered that the mother's view was exaggerated. If that had been the position, different considerations would have applied. To repeat, I consider that it was an error on the part of the District Judge to describe the effects of extradition as being an unsupported assertion.[21]That is not to say, of course, that the District Judge had no regard to the obvious plight that this family would face in terms of looking after the 11-year-old child. At the end of her listing of the factors which militated against extradition, the District Judge said this:
"There is no doubt in my mind that but for the child the RP ought to be extradited. The needs of the child however are a primary consideration. If the RP is extradited the child will miss his father. He will need to be told carefully in a child appropriate way why he will not see his father for a while but he will still have the stability of his mother, his regular teachers and support workers and the friends he plays with. No doubt financial assistance by way of welfare benefits can be made available to Ms Trzynska. She would be well advised to accept such support as can be made available to her."
Much of what the District Judge says in that paragraph is clearly correct. There would still be a network of support if this extradition takes place. There would be, at least by way of likelihood, financial assistance made available to ensure that the child and his mother did not become destitute. It does strike me, however, that to describe the effect of the extradition upon the child in terms of his "missing his father" is to substantially underestimate the true effect of extradition. The reality is that the appellant is an integral part of the support network which is necessary for the benefit and welfare of this child.[22]Having reflected upon this with considerable care, not least because I am considering an appeal from an extremely experienced and able District Judge, I have reached the conclusion, however, that her assessment of the effect of extradition upon the welfare of the child was flawed. That being so, both Ms Hinton and Mr Hawkes are in agreement that I must conduct the balancing exercise for myself.[23]I do not intend to undertake a full Celinski balancing exercise because more or less all the relevant factors are set out in the District Judge's judgment. However, I attach a great deal more significance to Michal's medical condition and the effect of extradition upon his welfare than was attached by the District Judge. I have reached the conclusion that extradition would be a disproportionate interference with the family life and welfare of Michal in particular. It is common ground that I must respect his rights just as much as the rights of his mother and father and it is on that basis primarily that I reach a different conclusion to that of the District Judge.[24]I should add for completeness that I would also attach more significance to the very substantial periods of delay which have occurred in this case than is apparent from the decision of the District Judge. That, perhaps, of itself would not have persuaded me to reach a different ultimate conclusion from her, but in my judgment there are very long delays in this case which are unexplained, and they must be set in the context of a comparatively minor conviction.[25]It should also not be forgotten, albeit very belatedly, that the major feature which triggered the activation of the suspended sentence, namely the non-payment of the compensation, has now been remedied because it is common ground that in the face of these extradition proceedings the appellant paid the sum which had been owing for so long.[26]At the conclusion of the judgment of the District Judge she said that it had been a difficult balancing exercise to undertake. I concur with that view, and at the risk of onerous repetition I am conscious that different judges might reach different conclusions on this case. But having identified an error on the part of the District Judge, as I see it, it falls to me to make my decision and my decision is that this appeal should be allowed.[27]I take it that the order for costs -- you are legally aided, Mr Hawkes? Is that the position or not?[28]MR HAWKES: That is right. (Inaudible) make an application for a tax order. There is no need to do that. It is contained in the order. There is nothing to be done.

SIR WYN WILLIAMS: Fine, thank you. Thank you both as usual for your help.