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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hein v The Regional Court In Opole, Poland [2015] EWHC 2855 (Admin) (09 October 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2855.html Cite as: [2015] EWHC 2855 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal under s.26 of the Extradition Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 October 2015

Mr Justice Supperstone :

1. The Appellant appeals against the decision of District Judge Goldspring ("the DJ") at the Westminster Magistrates' Court of 19 June 2015 ordering his extradition to Poland pursuant to an accusation European Arrest Warrant ("EAW") issued by the Respondent on 13 December 2012 and certified by the National Crime Agency ("NCA") on 6 January 2015.
2. The warrant relates to five offences of fraud committed between 22 May and 30 July 2002. The total value of the frauds is the equivalent of approximately £2,753.
3. Before the DJ the Appellant raised two challenges to extradition: first, that due to the passage of time it would be unjust or oppressive to extradite him, pursuant to section 14 of the Extradition Act 2003 ("the 2003 Act"); second, that it would contravene his rights under Article 8 of the European Convention on Human Rights, pursuant to section 21 of the 2003 Act. In addition the DJ was obliged to consider the independent statutory proportionality bar under section 21A of the 2003 Act. The same bars to extradition are pursued on appeal. Ms Bright, for the Appellant, stated in her "Speaking Note" (at paragraph 5) that the Appellant is content for this court to find that submissions in respect of the Article 8(1) ECHR and section 21A of the 2003 Act bars to extradition dovetail with the passage of time that has lapsed bar pursuant to section 14 of the 2003 Act.
4. The Appellant was not represented before the DJ. Granting permission to appeal, Cranston J noted that the DJ regarded the matters as "finely balanced" on the Article 8 ECHR challenge, and observed that "it may be that the balance would have come down differently if the Applicant had been legally advised and represented". As the Applicant had no advice as regards section 14 of the 2003 Act, he also granted permission to appeal on that ground.
5. At the full hearing before the DJ on 16 February 2015 the Appellant relied on two written statements and he gave oral evidence. For the purposes of this appeal he made a further statement dated 9 September 2015. Mr Seifert, for the Respondent, did not object to its admission in evidence.
6. I shall consider the grounds of appeal in turn.

Ground 1: passage of time (section 14 of the 2003 Act)

7. Section 14 of the 2003 Act provides as follows:

"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 is accused of its commission), or

(b) become unlawfully at large (where he is alleged to have been convicted of it)."

8. It is common ground that a person cannot rely on this bar to extradition if he has been responsible for the delay by either fleeing the country, concealing his whereabouts and/or deliberately evading arrest (Decision, para 13; and see Gomes v Government of Trinidad and Tobago [2009] UKHL 21).
9. The DJ found the Appellant to be a fugitive (para 9). The further information from the Respondent dated 16 March 2015 states that he was questioned on 11 June 2003. He was charged on 8 March 2004 and he signed a document confirming that he had been charged. He was obliged by Article 75(1) of the Code of Criminal Proceedings to notify the Prosecuting Authorities about each change of address exceeding 7 days. He failed to comply with this obligation. The further information states:

"Owing to the fact that the Defendant was aware of the prosecution, the lack of information about the change of address may be deemed to be an attempt to evade the prosecution and the charges."

10. Further information from the Respondent dated 12 June 2015 states that the Appellant failed to appear at the hearing and hid from the prosecution.
11. Ms Bright submits that the finding that the Appellant was a fugitive from justice is susceptible to challenge. In support of this submission she refers in her Speaking Note (para 9) to the Appellant's witness statement of 9 September 2015. However the contents of that statement do not, in my view, assist the Appellant in this regard.
12. In her oral submissions Ms Bright relied on the decision of the District Court in Opole of 22 December 2004 revoking the preventive measure banning the Appellant from leaving the country as supporting his evidence before the DJ that when he left Poland he was not under any cloud of suspicion and in his mind he was not subject to any obligation to notify the authorities of any change of address.
13. Having regard to this evidence and the DJ's appraisal of the Appellant as a witness of truth there was, Ms Bright submits, no evidential basis for the finding that he was a fugitive.
14. I reject this submission. In my judgment the DJ was entitled to find that he was a fugitive on the evidence summarised at paragraph 9 of the Decision. I am satisfied that nothing in the Appellant's further statement dated 9 September 2015 undermines that finding. The decision of the District Court of 22 December 2004 is not to the point. The DJ was entitled in making the finding that he did to rely on the further information from the Respondent dated 16 March 2015 and 12 June 2015 to which I have referred.

Ground 2: Article 8 ECHR and s.21A of the 2003 Act

15. In relation to the Article 8 challenge the DJ properly had regard to the relevant authorities (Norris v Government of the United States of America (No.2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, and Polish Judicial Authorities v Celinksi [2015] EWHC 1274 (Admin)), and he conducted the required balancing exercise. Ms Bright does not suggest to the contrary.
16. The focus of Ms Bright's submissions challenging the conclusion of the DJ on Article 8 related to the gravity of the offences and the likelihood of the imposition of a custodial sentence. She accepted that they were serious allegations but they were not, she submitted, grave offences. That being so a custodial sentence was not inevitable. Indeed, in the event of conviction, she submits, it is unlikely that the Appellant would be imprisoned, even if he fell to be sentenced for all instances of the alleged conduct. A significant period of time has passed since the alleged conduct and the formal opening of extradition proceedings, and in that time the Appellant has lived a blameless life. He has a dependent 7-year-old son whom, if he was extradited, would be left to be looked after by his partner who has problems with her knees. As a result of her health condition she was off work for a few weeks twice this year.
17. Ms Bright submits that where a DJ finds, as in the present case, that the arguments against and in favour of extradition are finely balanced, he should vindicate the presumption of non-interference with fundamental rights.
18. I accept Mr Seifert's submission that even if the decision is finely balanced, the question is whether or not the DJ has made the wrong decision (see In the Matter of B (a child) (FC) [2013] UKSC 33).
19. In my judgment the DJ was entitled to find that the Appellant is facing serious allegations and that if convicted a custodial sentence is likely to follow. In this regard the DJ observed (Decision, para 27) that it would do so in this jurisdiction (see Sentencing Guidelines Council definitive guideline on fraud, page 21). The EAW records that the maximum length of the custodial sentence or detention order which may be imposed for the offences is eight years.
20. The DJ noted that the interests of children are a primary consideration (para 26), and had regard to the blameless existence of the Appellant in the UK, his family life and the obvious hardship that his family will suffer in the event of his extradition (para 29). The public interest in honouring our international obligations is, the DJ observed, militated little by the delay, particularly where, as here, that delay is the fault of the Appellant (para 28).
21. I consider the DJ was entitled to find on the evidence, although finely balanced. that he was satisfied that the Appellant's children can and will be provided with an appropriate environment in which to be brought up and the factors in favour of discharge, whilst reducing the public interest in honouring extradition arrangements did not outweigh it so as to make it disproportionate for the Appellant to be extradited (Decision, para 30).
22. The contents of the Appellant's additional statement dated 9 September 2015 do not, in my view, add in any material way to the evidence before the DJ and do not lead to any conclusion other than the one he reached.
23. I accept Mr Seifert's submission as to the specified matters relating to proportionality in section 21A(3): the conduct alleged to constitute the extradition offence is grave, the likely penalty that would be imposed if the Appellant is found guilty is not inconsiderable, and there is no evidence that the Polish authorities could take measures which would be less coercive than the extradition of the Appellant.
24. For the reasons I have given this appeal is dismissed.