Domanski v The Regional Court in Warsaw, Poland

MR JUSTICE SWEENEY: The appellant, who is now aged 38, appeals under section 26 of the Extradition Act 2003 ("the EA") against the decision of District Judge Ikram, made on 27 November 2014 at the Westminster Magistrates' Court, to order his extradition to Poland, a category 1 territory, pursuant to an European Arrest Warrant ("EAW") issued by the respondent on 31 January 2010, modified on 8 October 2013, and certified by the National Crime Agency on 1 August 2014 -- which sought the appellant's return to face trial in relation to conduct amounting to human trafficking and the forcing of women into prostitution said to have taken place in the period between July 2004 and October 2005 and carrying a maximum sentence of 15 years' imprisonment.

The background chronology, as gleaned from further information served by the respondent prior to the extradition hearing, combined with the judge's findings of the facts during the course of that hearing is, in short, as follows: (1) the decision to charge Mr Domanski was taken on 26 October 2006; (2) Mr Domanski was not interviewed or advised of the charges; (3) border patrol records in Poland showed that he left Poland on 22 September 2006. It is clear that thereafter he moved to this country in around October 2006, that his wife joined him in this country later in 2006 and that he took up work thereafter as a self employed gardener; (4) on 29 November 2007 a decision was taken to suspend the investigation into the appellant in Poland; (5) on 11 June 2008 an arrest warrant was issued in relation to the appellant; (6) as a domestic search for the appellant was unsuccessful, on 4 December 2009 the prosecutor applied for the EAW, which was granted on 13 January 2010. That was the same year in which the appellant's father came to live with him in the United Kingdom; (7) on 9 August 2013 the Polish police became aware that the appellant was living in High Wycombe; (8) due to a change in the law the charges against the appellant were modified on 14 August 2013 and, as I have already touched upon, a modified EAW was issued on 8 October 2013; (9) at the time of his arrest the appellant was separated from his wife and two children, who are now aged approximately 7 and one and a half.

The appellant was arrested on 7 August 2014 and was produced at the court the following day, when an initial hearing was held. The appellant was remanded in custody.

At the extradition hearing itself on 27 November 2014 the respondent accepted that it could not prove to the requisite standard that the appellant was a fugitive. The appellant's proof of evidence was put before the court and was not challenged. The appellant's wife neither made a statement nor gave evidence during the course of the hearing.

Issues were raised on the appellant's behalf under section 2 of the EA (inadequate particulars of the conduct alleged); section 14 (the passage of time) and section 21 (Article 8). The District Judge ruled against the appellant on each issue. In particular, he concluded that there was no culpable delay on the part of the respondent; that there was no oppression and no hardship beyond that which occurs on any extradition and that he was not persuaded that it would be unjust or oppressive to extradite the appellant.

As to Article 8, whilst accepting that the appellant had an ongoing parental role, albeit separated from his children's mother (with whom they lived) the judge found that extradition would not amount to a disproportionate interference with the Article 8 rights of the appellant or his family.

There are two grounds of appeal, namely that the judge erred in finding that: (1) the appellant's extradition was not oppressive due to the passage of time; (2) the extradition would not result in a disproportionate interference with the appellant's Article 8 rights.

As to the passage of time, it is accepted that the burden rests upon the appellant to show on the balance of probabilities that it would be unjust or oppressive to extradite him. It is accepted that the mere fact of delay is unlikely to justify a finding of oppression or injustice and that the appellant must show more than mere hardship. It is further common ground that, amongst other things, the seriousness of the extradition offence, the impact upon family members and the sheer length of time itself may all be taken into account in what is an overall judgment on the merits.

On the appellant's behalf Ms Collins recognises that there is inevitably an overlap between the two grounds of appeal. She points out that it was accepted that the appellant was not a fugitive. The court was therefore concerned with a delay of nine years including, she submitted, an unexplained period of four and a half years from January 2010 when the EAW was issued and its certification in August 2014. While she accepts that the alleged offence is a serious one, that should not, she submits, be used as a trump card, particularly where, as here, the interests of children are involved. The appellant, she points out, until his remand in custody remained in frequent contact with his children, indeed saw them daily and stayed with them when his estranged wife was at work. Ms Collins points out that the appellant's father lives with him; and that both work for the gardening business run by the appellant, indeed set up by him, as I have already made mention.

Against that background it is submitted that he was wrong to attach only limited weight to the appellant's account in evidence, which was not disputed, and it is submitted that the district judge placed too much weight upon the lack of support in evidence from the appellant's estranged wife. It is further submitted that the District Judge did not give adequate consideration to the life that the appellant had built up in this country over the last nine years and in particular the strong relationship with his two children.

Whilst it was accepted that the appellant was convicted of an offence of assault occasioning actual bodily harm in this country in 2009, Ms Collins points out that he received a suspended sentence for that offence, complied with its terms throughout the period of suspension and has been out of trouble since. The principal oppression alleged would arise from the separation with his children as they are young and he plays a key role in their lives.

Ms Collins points out that as of today the appellant has been in custody for a period of almost six months, a factor which she submits must also be taken into account.

As to Article 8, and as I have already touched on, Ms Collins accepts that there is a degree of overlap which I have touched upon. She has referred me in her skeleton argument to the principal authorities of Norris v the Government of the United States of America[2010] UKSC 9; to HH V Deputy Prosecutor of the Italian Republic of Genoa[2012] UKSC 25 as well as to Neuman v the Circuit Court, Katowice, Poland[2013] EWHC 605 (Admin) which indicates that lapse of time is a material factor when one considers Article 8 and to A and B v Hungary[2013] EWHC 3132 (Admin) in relation to the correct approach to the position of children.

Against that background it is submitted that a number of factors are relevant, as set out in Miss Collins' skeleton argument at paragraph 52 sub-paragraphs (a) to (f).

On the respondent's behalf, Ms Hill draws my attention to the correct interpretation of oppression, as defined in paragraph 31 of the judgment of Lord Brown in Gomez v the Government of Trinidad & Tobago[2009] 1 WLR 1038, namely that hardship is not enough and that the test of oppression will not easily be satisfied.

Ms Hill further points out that even when there has been delay the focus must remain on whether the result of the delay is oppression; see for example Brzeskiv Regional Court in Gdansk Poland[2012] EWHC 1138 (Admin).

As to Article 8, Miss Hill also relies upon passages in Norris and HH (above) and to paragraph 66 of the recent judgment of the Divisional Court in the case of Belbinv the Regional Court of Lille, France[2015] EWHC 149 (Admin).

Ms Hill points out that the offence for which the appellant is sought is an extremely serious one. It is a crime with identifiable victims, whose rights must also be taken into account. Whilst accepting that the appellant is legally entitled to argue the passage of time, she asserts that his case falls far short of establishing oppression and that this is far from being one of those extremely rare cases in which such an argument should succeed.

As to Article 8, underlining, as Belbin does, that the court's function on appeal in relation to Article 8 issues is one of review, Ms Hill submits that there is nothing perverse, irrational, or legally flawed in the decision of the District Judge. She submits, in short, that the judge's findings were all entirely appropriate.

Ms Collins recognised at the outset of her submissions that the case of Belbin presents a considerable hurdle to the success of the appeal. In my view the District Judge was clearly entitled to reach the decisions that he did on the two issues which are the subject of the appeal. I can see nothing wrong at all with his findings in relation to both delay and Article 8. In those circumstances this appeal is dismissed. Anything else?

MS COLLINS: No.

MR JUSTICE SWEENEY: Thank you very much.