CO/10060/2012 
Neutral Citation Number: [2013] EWHC 698 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 8 March 2013
 
B e f o r e: 

MR JUSTICE MITTING 
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Between: 
DANIEL WYCZESANY 
Appellant

v 

DISTRICT COURT WARSZAWA, POLAND 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Miss M Westcott (instructed by Shaw Graham Kersh) appeared on behalf of the Appellant
Miss N Draycott (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR JUSTICE MITTING:  I refuse to adjourn this appeal.  There is no certainty that the current state of play in the Warsaw courts will be brought to a final conclusion within a very short time, and accordingly applying settled jurisprudence it would be wrong for me to adjourn the hearing of this appeal any further.  It has already been adjourned once and the position is not significantly clearer than it was before. 
 [Counsel addressed submissions to the Court on the appeal] 
2.	MR JUSTICE MITTING:  By a conviction European arrest warrant issued by a judge of the Circuit Court at Warszawa on 14 June 2012, the extradition of the appellant is sought to serve three sentences of imprisonment imposed by two different courts for offences committed in 2004 and 2005.  The warrant was certified by SOCA on 16 July 2012; the appellant was arrested on 27 July 2012; his extradition was ordered after a contested hearing by District Judge Snow on 19 September 2012.
3.	His extradition was sought to serve sentences of eight months' imprisonment and one year's imprisonment imposed for an offence of assault by battery by the use of fists and feet committed on 22 May 2004, and attempted burglary of a barracks committed on 20 July 2005.  Those sentences were imposed by the District Court at Wolomin on 4 July 2005 and 8 March 2006.  A further sentence of nine months' imprisonment was imposed for theft of 200 metres of telephone cable on 17 August 2005 by the District Court at Legionowa on 25 May 2006.
4.	The procedural history of these matters is far from straightforward.  The appellant arrived in England at some time in 2006, almost certainly after his appearance before the District Court in Legionowa on 24 May 2006.  An accusation warrant had then been issued by the Wolomin Court.  His extradition to Poland was ordered on that warrant.  He was tried for the offences, the subject of that warrant, and a suspended sentence was imposed.  He remained in Poland until a date, which no one is able to identify with precision, in early 2009.
5.	Information about the precise sequence of court appearances, and of the manner in which the sentences imposed on him were imposed, has emerged in dribs and drabs from the requesting authority, but the position is now reasonably clear.  For the offence of assault committed in 2004, for which he was sentenced by the District Court in Wolomin on 4 July 2005, he was sentenced to a suspended sentence of imprisonment with a probation period.  The conditions of suspension required him to "observe the surveillance" (by which I understand the requesting authority to mean that he was required to remain in touch with his supervising officer) and required him to permit the supervising officer to visit him at his home in Poland.  On a date which I do not know, and is not stated in the documents provided by the requesting authority, that sentence was converted from a suspended sentence into a sentence with, in principle, immediate effect.  I say "in principle with immediate effect" because, by a letter dated 23 August 2012, the requesting authority explained that the appellant had a significant, but unidentified, period in which to present himself voluntarily at a prison to serve the sentence.  That explanation was offered to justify the fact that no European arrest warrant had been issued in relation to that offence, nor had he been dealt with for it by a Polish court when he was in Poland, as he was throughout 2008.
6.	Again, on a date that I do not know, the suspended sentence imposed for the attempted burglary of the barracks by the Wolomin Court, on 8 March 2006, was converted in principle to an immediate sentence of imprisonment.  Again the same explanation was offered by the requesting authority for the fact that that offence had not been dealt with during 2008, namely that he still had the opportunity of presenting himself voluntarily to a prison to begin serving that sentence.  
7.	No such difficulty arises in relation to the third offence, which gave rise to the sentence of nine months' imprisonment imposed for theft of the 200 metres of telephone cable at the District Court at Legionowa on 24 May 2006.  The appellant was present then.  It seems that he left Poland shortly afterwards for the United Kingdom.  He was, in relation to that offence at least, clearly a fugitive.
8.	Before I turn to the substantive merits of the appeal, I deal with a discrete question raised by Miss Westcott for the appellant.  As a result of activity on behalf of the appellant in Warsaw, by lawyers acting for him while he has remained in the United Kingdom, applications have been made to the Warsaw courts for orders deferring the sentences formerly suspended, now, in principle, immediate.  Those applications succeeded in small part.
9.	By a letter bearing the seal of the Circuit Court of Warszawa‑Praga, dated 2 February 2013, the Deputy Head of the Fifth Criminal Division of that court stated that the sentence imposed for the third offence by the Legionowa Court was not suspended, but deferred until 15 July 2013 to permit the appellant to make financial recompense in the sum of 2,000 Polish Zloty.  There is a dispute, which is irrelevant for present purposes, as to whether or not he had made that recompense.  That decision, the letter goes on to state, "is invalid" and has been appealed by the prosecutor.  As far as the two offences dealt with by the Wolomin Court are concerned, an application made by the appellant's Polish lawyer has failed.  I am told by Miss Westcott that as the prosecution have appealed the third case his Polish lawyer has appealed the first and second.
10.	The discrete point advanced by Miss Westcott arises in relation to the third offence only.  She submits that because of the current state of play in Warsaw he cannot be required to serve the sentence of imprisonment imposed for the third offence, so his extradition is not sought for the purpose identified by section 2(5)(b) of the Extradition Act 2003, which sets out one of the two circumstances in which a European arrest warrant may be issued: 
"For the purpose of being sentenced for an offence, or of serving a sentence of imprisonment." 
11.	Miss Westcott submits that he is not sought for the purpose of serving that sentence of imprisonment, because it has been deferred until 15 July 2013.  That point is a good one.  However, his extradition is being sought for the purpose of being sentenced for that offence on 15 July 2013, in the event that he does not make the financial recompense demanded.
12.	This argument, it seems to me, can only be raised as a facet of an oppression argument, rather than as a freestanding argument in its own right on these facts.  On the face of the warrant the extradition of the appellant is sought to serve three sentences of imprisonment: two immediate and one, on the present state of play, deferred.  The two immediate sentences, even if concurrent, will take him up to and beyond 15 July 2013.  Therefore if he were to be extradited on this warrant he would not be extradited to spend time at liberty, perhaps conditional liberty in Poland, awaiting sentence on 15 July 2013, which might well be oppressive if he was not subject to any other sentence.  Instead he will be serving one or both of the two other sentences.  In those circumstances if it is right that he should be extradited on the first two offences, then the addition of the third cannot give rise to a legitimate complaint of oppression.  For those reasons I reject the first and discrete argument.
13.	I turn now to the substance of the appeal.  The appellant gave and called evidence before the District Judge, which the District Judge set out in a full and careful written judgment.  He noted that the appellant said that he was present when each of the three sentences, the subject of the warrant, were passed.  He accepted that all three sentences were suspended on conditions, including a condition that he allowed the probation service to visit him at home.  He said that when he left Poland to come to the United Kingdom in 2006 he did so without the knowledge or permission of his probation officer.  That seems to me to record a finding by the District Judge on the evidence that he heard, including those admissions, that at the time when the appellant left Poland for the United Kingdom he did so knowing that he was doing so in breach of the conditions of his suspended sentences.
14.	The District Judge went on to note his acceptance in cross‑examination that by leaving Poland he had breached his suspended sentences.  Miss Westcott says that that was a question put to him on the basis of the knowledge that he now has about the requirements of Polish law.  The District Judge, it seems to me, treated it as an admission which reflected his state of knowledge at the time.  In any event, it was only an additional finding to that which he admitted, about permitting the probation service to visit him at home.
15.	That evidence formed the basis of the District Judge's finding that he was a fugitive between 2006 and May 2008 on which date, it seems, he was returned on the earlier accusation warrant.  The District Judge said in paragraph 28 of his written decision that he was satisfied, so that he was sure, that the defendant knew he had breached the conditions of his suspended sentence when he left Poland in 2006.  That conclusion was one which was open to the District Judge, indeed inescapable on the evidence given by the appellant.  Miss Westcott faintly challenged it.  I do not accept that her challenge in that respect has any merit.
16.	The District Judge then picked up the story, again beginning with the appellant's evidence, which dealt with his return to Poland on the accusation warrant and to his being sentenced to a suspended sentence for those offences. Following his release he returned to his registered address in Poland, where he remained for nine months.  
17.	The appellant said that he was given permission to return to the United Kingdom by a judge and did so in 2009 (by necessary implication in early 2009, if he, as the District Judge found, was a fugitive until May 2008).  If he spent nine months at his registered address in Poland, it necessarily follows that he must have returned to the United Kingdom with, as he claimed, the permission of the judge at some time in early 2009.
18.	The District Judge accepted that evidence.  He found as a fact that the appellant had remained at his registered address in Poland for nine months and had left Poland with the permission of the judge.  Accordingly he found that from May 2008 onwards he was not a fugitive.  Again the District Judge's finding was one that was plainly open to him and fully justified by the facts which he found.
19.	In 2010 the appellant said, and the District Judge accepted, he met his partner Inga Jankaiskaute, a Lithuanian national.  She had a daughter born on 27 November 2009, now three, whom the appellant treated as his own child.  The couple had a son born on 12 July 2012, now some eight months old.  They have lived at an address in Wembley, the appellant's partner's home, since 2008.  
20.	The District Judge had before him a medical report from her general practitioner, which recorded that she suffered from back pain that would be worsened, in his professional opinion, if she did not get enough help and support from, as he put it, her husband to look after their two children.  The appellant said, and the District Judge accepted, that he had worked as a builder since 2009 earning about £400 per week, and that his partner received Child Benefit of £80 for her daughter.  They had a flat which they sublet to another family for £450 a month.  The rent on the flat which they occupied was £1,000 a month.  He said that he and his partner and their two children relied solely upon his income for support.
21.	Miss Jankaiskaute gave evidence in support of the appellant.  She confirmed the relationship.  She said that her daughter had contact with her father, but despite that he did not make regular payments towards her support.  She had made no enquiries about any entitlement that she might have to UK state benefits in the event of the appellant's extradition.  While she was in court giving evidence a friend had looked after their son and her daughter's father had looked after her.  She confirmed that she had severe back pain and had undergone an X‑ray of which results were awaited.
22.	The District Judge found, on the basis of that evidence, that the appellant had lived an industrious life in the United Kingdom and was the father of two small children, the support of them and of his partner and also, although this is perhaps of marginal relevance, of her mother.  He accepted that the daughter would undoubtedly suffer distress if separated from the appellant, but that their son, in the light of his age, was unlikely to be affected.  Miss Westcott criticises that observation in the light of a passage from a document published by the Children's Commissioner and cited by Lord Wilson in HH v Deputy Prosecutor of the Italian Republic [2012] 3 WLR 90 at paragraph 160, in which it is said that attachments between baby's and their mothers, or primary care givers, starts in the early stages of life and that they become attached by around the age of six months.  
23.	To the extent that it matters, I accept Miss Westcott's submission that the District Judge erred marginally in stating the conclusion that he did there.  Although the appellant is not the mother, or even primary care giver of his son, it is nonetheless reasonable to expect that he will have formed a close bond with his son and that his son would be, to some extent, affected by his enforced absence.
24.	The District Judge went on to find that life for Miss Jankaiskaute would be difficult in his absence, but that her daughter's father and a friend of the appellant would be able to assist her.  He said that he was not persuaded that the family would not be able to survive financially in his absence, in part because Miss Jankaiskaute had been able to survive for a substantial period before she met him, was likely to be eligible for benefits and might be able to sublet her home.  His overall conclusion on the issue of oppression was stated as follows:  
"Whilst there is evidence that if I do so it would cause hardship to RP [the requested party] and his family, I am not satisfied that it would be oppressive to do so." 
Accordingly he found that there was no bar under section 14.  
25.	He went on to consider the separately raised but linked ground of a right to respect for family rights under Article 8 of the appellant and his family.  He laid emphasis on the fact that the appellant was, as he had found correctly, a fugitive for two years, or so, and observed that it was important that the United Kingdom does not become a safe haven for criminals and that it honours his international obligations.  He was satisfied that the appellant's partner would be able to look after their children, and that the public interest in extradition outweighs the interference with the private and family lives of the appellant and his family.
26.	These were clearly fairly finely balanced judgments.  The material which the District Judge had has been supplemented by a report obtained yesterday from Miss Jankaiskaute, her general practitioner.  I admit it because it was not evidence that could reasonably have been obtained at the time of the original hearing (indeed it covers events that have taken place since) and because it goes to an issue of direct relevance in this appeal.  Miss Jankaiskaute's general practitioner says that she suffered a miscarriage on 29 December 2012 and has since been complaining of intermittent abdominal pains and irregular bleeding.  She has been referred for blood tests and an ultra sound of her pelvis to rule out retained products of conception.  The ultra sound confirmed a normal uterus with likely blood clots, but no retained products of conception.
27.	The position then, as of now, is that for reasons that are partly explained by that in that letter, the appellant's partner continues to suffer from intermittent abdominal pains and irregular bleeding: a condition which must have some, albeit not major, bearing upon her ability to care for her two young children and to provide for herself financially in the absence of the appellant.  The District Judge did not find that Miss Jankaiskaute could support herself by going out to work.  He looked perhaps speculatively at other sources of income from individuals and at the possibility of receiving state benefits.
28.	I have found this to be a very finely balanced case.  Putting to one side the events which occurred in Poland in 2008 and 2009, I would have regarded this as a run‑of‑the‑mill Article 8 case which could not give rise to a finding of oppression, or of a finding that it was in breach of the appellant's right to respect for his private and family life to extradite him to serve these sentences.  
29.	Three factors need to be weighed in the balance in his favour.  First, the offences, for which he was sentenced, although by no means trivial, are not of the most serious.  That the seriousness of offences like their antiquity can be taken into account in considering a claim under Article 8, and so by necessary extension of oppression under section 14, is established by the reasoning of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic, Genoa and H(P) v Same, F‑K v Polish Judicial Authority [2012] 3 WLR 90.  The seriousness of offences in the case of two of the individuals was treated as a highly relevant and significantly determinative feature, whereas the relative lack of seriousness, together with antiquity of the offences in the case of FK, counted in favour of the appellant.  Again by itself that factor is an unremarkable commonplace factor which would not persuade me, by itself, to discharge the appellant on the grounds of oppression.  
30.	Two unusual factors, are, however, present in this case.  The District Judge made an express finding that the matters which give rise to these warrants "should have been resolved in 2008 when he appeared before the same court that imposed two of the suspended sentences which he had breached."  Further he remained at his registered address for nine months.  That suggests to me an implied finding by the District Judge, which he was plainly entitled to make, that by failing to deal with him in 2008 the Polish judicial authorities were at fault.
31.	Secondly, and to my mind of at least equivalent weight, is the fact that the appellant sought, and was granted, the permission of a Polish judge to leave Poland. Although the District Judge did not find when that permission was granted, by necessary inference I think it must be early 2009.  I do not of course know, nor did the District Judge, what, if anything, the Polish judge, who granted that permission, knew of the matters which give rise to this warrant.  It is possible that by further explanatory letters the requesting authority might have indicated that the judge was in some way misled by the appellant when he sought and was granted that permission, but no such suggestion has been made.  Combined with the  District Judge's finding that the Polish judicial authorities should have resolved these matters in 2008, that seems to me to lead inescapably to the conclusion that the appellant was given a false sense of security by the actions of the courts in Poland, and so came back to the United Kingdom aged 24 to embark upon the life which the District Judge described in favourable terms for the next four and a half years.
32.	I said that this was a finely balanced case, but I have reached the conclusion that the balance tips just in favour of holding that it would be oppressive to order the extradition of the appellant to Poland.  In doing so I am conscious that I have differed on a question of judgment from an experienced District Judge, and have done so on substantially the same material as he had, modestly supplemented in the way that I have indicated.  But my task and duty, if satisfied that the District Judge's decision was wrong, is to say so and to order the discharge of the appellant, as I do. 
33.	MISS WESTCOTT:  May I request the usual order for costs?  I do not know whether it would assist the associate to take his email address and to draft up any further order in collaboration with my learned. 
34.	MR JUSTICE MITTING:  I am sure that would help.  You may have a public funding assessment of the appellant's costs.