Kocik v Regional Court Krosno, Poland

MR JUSTICE CRANSTON: This is an appeal against a decision of District Judge Blake on 12 February 2015 to order the appellant's extradition to Poland pursuant to a European Arrest Warrant issued by the Regional Court of Krosno on 24 March 2011. The warrant was certified by the National Crime Agency on 11 November 2014.

Under the warrant the appellant faces two charges of participating in a criminal organisation which fraudulently collected front-end fees for loans. The warrant explains that the offending occurred between 10 January and 22 March 2005. There was an arrest warrant issued by the District Court of Krosno on 22 June 2007. The warrant explains that the maximum length of custodial sentence which can be imposed in relation to the offences set out in the warrant is 12 years' imprisonment. The warrant sets out in considerable detail the nature of the offending. It is described as what we would regard as a fraud involving pyramid selling and the misleading of prospective borrowers. The warrant refers to the Polish legislation of 2007 on combating unfair commercial practices, under which the appellant is accused. The warrant then lists a large number of individuals who have been said to have suffered as a result of the fraud.

Additional information was provided by the Polish authorities about the appellant's case. That additional information explains that some 43 witnesses will be heard at trial and there are another 138 testimonies to be read. The further information indicates that the appellant was not arrested or questioned, and that communications sent to him were returned "the addressee was absent". The additional information states that the delay in the issue of the warrant was due to a delay while the law was being amended so as to give effect to the new law of 23 August 2007, to which I have referred. As I observed in the course of argument, the new law was no doubt based upon the European Union Directive 2005/29/EC on combating unfair commercial practices.

The additional information from the Polish authorities states further that there were searches in Poland for the appellant; he was not residing at his last place of residence; and his whereabouts were unknown. There was then reason to believe that he was elsewhere in the European Union and might be sojourning in the United Kingdom.

Before the district judge the appellant explained that he had come to this country in 2006. He knew nothing about the offending. He had worked for the managing director and the organisation named in the warrant, but all he knew was that the managing director had been arrested and that there was a criminal investigation into the business. He had visited Poland on three occasions since coming here and had not learnt about the investigation during those visits. It was only in May 2014, when he went to the Polish consulate in London to renew his passport, that he was told that there was an investigation and that he was wanted for questioning. At that point he had instructed a Polish lawyer. He also explained in his evidence that, six months after coming here, his wife had joined him with their daughters. His family was now settled in the United Kingdom; his daughter attended school; and his wife worked three days a week as a teaching assistant. In November 2014 he had begun a lawnmower repair business.

The judge said that he did not conclude that the appellant was a fugitive. However, when he considered the gravity of the offence and the delay he did not consider that the extradition would be unjust or oppressive. The appellant had an established family life which would be severely affected by ordering extradition, but there was a weighty public interest in those accused of crimes being brought to trial. Having regard to the circumstances, the judge concluded that the appellant's rights under Article 8 ECHR did not overcome the public interest in ordering his extradition.

Before me Ms Draycott, for the appellant, contended that the appellant's extradition should not be ordered both pursuant to section 14 of the Extradition Act 2003 (because the lapse of time meant that it would be oppressive to return him) and also as a result of Article 8 of the European Convention on Human Rights. The delay was an element in the Article 8 balance. In this case, she submitted, the offending had occurred ten years ago. That factor and the other circumstances had not properly been taken into account by the judge when concluding that the appellant should be extradited. The judge had held that this appellant was not a fugitive, but had not properly accorded weight to other matters. The offending occurred when the appellant was 26 years old; by contrast, he was now 35 years old with children and a business in this country.

Ms Draycott also underlined that the appellant had never been arrested in Poland; he had simply left the employment, had never been paid, and, after remaining for a year in Poland had come to this country. She contended that there had been a dragging of feet on the part of the authorities. Firstly, there was the overall delay. Moreover, delay could be broken down as regards the delay between the offending and the court decision in 2007; then the further delay between 2007 and the issuing of the European Arrest Warrant in 2010; and the yet further delay between that and the certification of the European Arrest Warrant in 2014. All of that delay had not been satisfactorily explained. Overall it would be oppressive to return the appellant and it would be in breach of Article 8 of the European Convention on Human Rights.

As the district judge indicated, there is no doubt that there will be hardship in this case. To my mind, however, the oppression test in section 14 is not met. As Lord Diplock said in Kakis v Government of Cyprus [1978] 1 WLR 779, and as was restated in Gomes and Goodyer v Trinidad and Tobago [2009] 1 WLR 1038, the test for oppression is not easily satisfied. Hardship is a comparatively commonplace consequence of an order for extradition, and hardship by itself is not enough.

I would also reject the argument about the authorities dragging their feet. This was a fraud, and frauds of this nature, especially given the large number of victims, take a considerable time to investigate. It is not all that surprising that it took three years for the issue of the domestic arrest warrant. The Polish authorities then sought to find the appellant; he could not be found. The explanation was simple: he had left the jurisdiction. It could not be said that there was a dragging of the feet there. There is the delay between 2010 and the certification of the warrant. There is no explanation for that, but that of itself does not constitute delay which, in the overall context of the 10 years' delay, would satisfy the test set out in section 14 of the Act.

As regards Article 8, delay certainly is a factor to go into the balance. There is the position of the family who will be left in this country. However, this is serious offending in the sense that it can attract 12 years' imprisonment. There are also many alleged victims, as I have said. The family will find it difficult, as will the appellant; the children will be without a father. But the appellant's wife does seem to be relatively self-sufficient, albeit that she will find it much more difficult in his absence.

To my mind, notwithstanding the personal difficulties faced by the appellant and his family, the Article 8 balance comes out in favour of his extradition. I dismiss the appeal.