Wardzala v Regional Court in Tarnow (Poland)

MR JUSTICE MITTING: The extradition of the appellant is sought on a conviction European Arrest Warrant issued by a judge of the Regional Court of Tarnow on 22 December 2014 for him to serve a sentence of imprisonment of 2 years and 7 months imposed by the District Court of Tarnow on 29 December 2008 and 7 May 2010 respectively. The first offence was the theft of the contents of a woman's handbag on 2 August 2008; the second and third, the subject of the decision of the court on 7 May 2010, were robbery of a mobile telephone on 13 October 2009 and the theft of a computer and a navigator from a dwelling house (i.e. burglary) on 8 January 2010. The sentences were initially suspended but were activated on 10 September 2010 and 24 April 2012 respectively. The warrant was certified by the NCA on 4 February 2015. The appellant was arrested on 13 March. He has been remanded in custody ever since.

After a contested hearing, his extradition was ordered by District Judge Barrie on 17 July 2015. He appeals with the permission of Cranston J, given on 25 August. The sole ground of challenge before the district judge and on appeal is that his extradition would infringe his and his family's right to respect for private and family life under Article 8 of the Convention (see section 21 of the Extradition Act 2003).

The appellant came to the United Kingdom in 2010. He has worked in the construction industry. He met his partner in February 2011. Their daughter was born on 2 February 2014. Initially they shared a home with his brother, his wife and two children. Since the appellant's arrest they have left, leaving his partner and her daughter alone. They have, as she has said in a witness statement signed for the purposes of this appeal, lived from hand to mouth ever since.

The appellant gave different accounts of his state of knowledge of the Polish proceedings against him. The district judge was satisfied that he knew of the sentences imposed upon him and of the obligations usual in Polish cases imposed on him while he was subject to a suspended sentence, i.e. that he must keep in touch with his probation officer and pay compensation. She was satisfied that the appellant was a fugitive.

She then conducted a balancing exercise, as suggested in Celinski. The factors in favour of extradition in summary were that he was a fugitive; that the offences were comparatively serious; and that there was a need to honour extradition arrangements. The factors against were that these were old offences, committed when he was only 17 and 18; that he had led a hard-working and blameless life since then; that he was in a committed relationship with his partner, which would be disrupted by his extradition; that extradition would have a great emotional and financial impact on his partner and on their 1 1/2-year-old daughter. She stated, having conducted that exercise, that it was a finely-balanced case. Nevertheless she proceeded to strike the balance in favour of extradition.

He seeks to rely on evidence that was not before the district judge, although it was foreshadowed by evidence which he gave and which she accepted: a witness statement from his partner and medical records relating to his daughter. There was at most formal opposition by Ms Farrant for the Judicial Authority to the admission of this evidence. I admitted it. I do so because evidence, particularly incontrovertible medical evidence about the condition of a child with a significant condition, ought in principle to be admitted unless there is good reason not to. A court would rightly be subject to criticism if evidence potentially critical to the well-being of a child was refused even in an extradition appeal.

The appellant's daughter was born on 16 September 2014 with a condition known as hydronephrosis, a blockage of her right kidney and some impact upon her left kidney. A scan on 8 October 2014 revealed that her right kidney function was only 40 per cent and there was no drainage of that kidney and there was slow drainage of the left kidney. Mr Seifert tells me, without opposition, that an operation known as a right pyeloplasty was performed in October or November 2014. The operation is attested to in the medical notes but not its date. It had the effect of unblocking the ureter, and thereby permitting freer drainage of urine than had been the case before. She is no longer receiving medication. She is due soon to attend a further appointment, at which the functioning of her kidneys will be reassessed and a prognosis given. There is an appointment which may be for that purpose on the 19th of this month.

In her witness statement, the appellant's partner says that she is destitute and staying rent-free with friends in Wolverhampton. She is not in contact with her father, who is in the United Kingdom (they are apparently on bad terms), or with her family in Poland. She says that she worries that she "will starve to death" because she has no documents and no money and probably no entitlement to central government state benefits. Her fear is objectively overstated, given that there is a longstop obligation on the local authority of the area in which she resides to provide for her and her daughter's essential needs under the National Assistance Act 1948 and the Children Act 1989. Nevertheless, I of course accept that her plight is dire. She has, it is to be noted, however, survived, as has her daughter, despite the incarceration of the appellant for two days under seven months.

The exercise conducted by the district judge was an impeccable Celinski balancing exercise. The conclusion which she reached on the evidence before her was one to which she was fully entitled to come; indeed, it would have been surprising had she come to the opposite conclusion. My task essentially is to consider whether or not the fresh evidence upsets her conclusion.

Mr Seifert has made submissions about the conclusions which she reached in the light of that evidence, in summary that more is now known about the appellant's daughter's condition; there is first-hand evidence from his partner; the offences are not of the most serious; there was some delay; the appellant has shown that he has rehabilitated himself by working since his arrival in the United Kingdom; and against all of that background the district judge expressed her conclusion that the exercise was finely balanced.

I accept that in the light of the new evidence I must re-conduct the balancing exercise. I do not depart from a word of the exercise conducted by the district judge; I agree with it. I note that she did take into account, albeit without the further evidence that I have, that the appellant's daughter was a little girl with additional medical needs and that the emotional and financial dependence of his partner and his daughter upon him was very great, and that in consequence his removal would make it unclear how they would manage emotionally and financially in his absence.

I am afraid that this is one of those unfortunate cases in which relatively serious offences committed by a young man, but one very far from childhood, have come back to haunt him because he has not faced up to the consequences in his native country. The district judge's balancing exercise was right, the new material adds but little to it in terms of the weight against extradition, and I uphold the decision. This appeal is dismissed.