Szlichting v Circuit Court Zielona Gora

SIR ROSS CRANSTON: Before me this afternoon there are two matters concerning the extradition of Raphael Szlichting ("the appellant"). For convenience, these have been linked by the court.

The first matter is an accusation European arrest warrant ("EAW") where leave to appeal has been granted by Mrs Justice Lang. In this case District Judge Branston ordered the extradition of the appellant on 14 November 2016. The accusation warrant had been issued by the Polish Judicial Authority on 29 July 2016 and was certified by the National Crime Agency on 29 August 2016. In this warrant the appellant is wanted for two offences committed in March 2013: first, driving whilst under the influence of drugs, and secondly, giving false details to the police. Permission to appeal was granted in relation to the first offence, namely the driving offence, but subsequently Mrs Justice Lang gave permission to the appellant to amend his grounds to add a point regarding Article 8 of the European Convention on Human Rights (“ECHR” of “the Convention”).

As detailed in this EAW, the first offence is that on 21 March 2011 in Racula, Lubiskie Province, the appellant drove a BMW vehicle being under the influence of drugs. The warrant does not condescend to any more detail regarding that offence. However, on 23 September 2016 the Polish prosecutor explained that on examination the appellant's blood revealed 9-THC carboxylic acid at a concentration of 46 nanograms/millilitres, and amphetamine at a concentration of 194 nanograms/millilitres. The information from the Polish prosecutor added that the appellant was under the influence of a psychotropic substance and amphetamines, after the use of a drug from the group tetrahydrocannabinol.

At the hearing before the District Judge on 27 September 2016 the appellant sought an adjournment because he was unrepresented. That was refused. Miss Brown, representing the Judicial Authority, who also represents it today, also applied for an adjournment to obtain further information in respect of this first offence. That application was also refused.

The hearing continued. Miss Brown, quite properly, drew the judge's attention to the dual criminality requirements of Section 10 and Section 64 of the Extradition Act 2003 (“the 2003 Act”)in the context of driving under the influence of drugs. In the law of England and Wales there are two relevant offences. First, there is Section 4 of the Road Traffic Act 1988 which provides for the offence of driving or being in charge of a vehicle when under the influence of drugs or drinks. Section 4 (5) reads:

There is a series of cases before this court, most recently the decision of Mr Justice Irwin in Grabowski v Regional Court in Wloclawek [2014] EWHC 3602 Admin, which clearly state the law in this area, that for the dual criminality requirements to be satisfied for this offence the inevitable or only reasonable inference must be that a person was so intoxicated by drink or drugs as to be unfit to drive.

The second relevant offence in the law of England and Wales is Section 5A of the Road Traffic Act 1988. That was introduced by amending legislation in 2013 and did not come into effect until March 2015. Thus, it was not in force at the time of the appellant's offending. It creates an offence of driving a motor vehicle with a concentration of specified controlled drugs above specified limits. Those drugs and the corresponding limits are contained in The Drug Driving (Specified Limits) (England and Wales) Regulations 2014, as amended. For amphetamine, the limit is 250 microgrammes per litre of blood; for delta-9-tetrahydrocannabinol it is 2 microgrammes per litre of blood.

The District Judge held that the first offence in the European arrest warrant met the dual criminality requirements of those sections. After referring to Section 4 of the Road Traffic Act 1988, in particular Section 4 (5), he said as follows:

To my mind, the comparison which the District Judge drew between the current legal limits for an individual to drive a vehicle and the figures provided by the Judicial Authority was open to him and entitled him to the inevitable inference that the appellant's ability to drive the vehicle was impaired at the relevant time. In other words, the District Judge was in my view entitled to reach the conclusion he did.

However Miss Brown has very fairly drawn attention to a difficulty for the Judicial Authority’s case in the warrant and the prosecutor’s further information. As I have said, the warrant did not condescend to detail. The further information of 23 September 2016 referred to a drug "9-THC carboxylic acid" and a drug from the group of tetrahydrocannabinol. That wording does not definitely demonstrate that one of the drugs in the appellant's system at the time of the alleged offending was in fact delta-9-tetrahydrocannabinol. That being the case, it seems to me that the District Judge was entitled to proceed on the basis that he did.

Miss Brown seeks the admission of further information from the Judicial Authority dated 22 March 2017, that in the course of the pre-trial proceedings in Poland the evidence was that the use of the drugs had impaired the appellant's ability to drive motor vehicles. In my view, even if admitted, that evidence does not overcome the difficulty in the identification of the substance found in the appellant's blood, in other words whether in fact he was under the influence of a controlled drug. On that basis, I reach the conclusion that the appellant should be discharged in relation to that first offence in the warrant because the dual criminality requirement is not met.

That leaves the second offence. The second offence is stated in the warrant as follows:

I accept the submission of Miss Brown that this offending could be characterised as an attempt to pervert the course of justice, a serious offence.

For the appellant, Miss Townshend accepts that this second offence is not a trivial offence, but she submits that the offending occurred at the time when the appellant was under the influence of drugs and his attempt to push the blame on to the third party, is to that extent, mitigated.

Miss Townshend then contends that because the appellant has been discharged of the first offence in the warrant, there needs to be a re-balancing exercise in the consideration of Article 8 ECHR. The District Judge conducted the Article 8 balancing in accordance with the binding authority of Celinski [2015] EWHC 1274 (Admin). He did that against the background of the information before him about the appellant, who had come to this country and was later joined by his wife and three children, two sons aged 19 and 17 and at college, and a daughter 12 years old.

After considering the public policy factors in favour of extradition, the District Judge added on that side of the balance the seriousness of the offending; that the appellant had moved to this country in the full knowledge that he was being investigated for the offences; that although he had no convictions in this country he had previous convictions in Poland; that he was not the sole or even the primary carer of the children; that his wife worked and was clearly capable of looking after the daughter; and that the appellant's sister lived in Britain and might well be able to provide some assistance.

Considering factors in favour of extradition, the District Judge also referred to the fact that the appellant had been extradited in 2013. That was under a conviction warrant where he had to serve two and a half years in prison. Having served what appears to have been that period, he returned to this country in 2015. The District Judge’s said that the appellant had the opportunity at that point of dealing with the matters he faces in the EAW before me, but he chose to avoid his responsibilities. I will return to this point in a moment.

Against extradition, the District Judge considered a number of factors, that he had a settled life here; that extradition would have an adverse impact on both his family and himself; that he had no convictions in this country; that there had been delays since 2011; that the extradition would cause emotional harm to the family which might be especially keenly felt by the eldest son; that his wife might well find it difficult coping; and that he himself had some health problems. Although he had a sister in Scotland, there was no evidence of any close friends or other family to help his wife with the children.

Miss Townshend's submission is that in undertaking a re-balancing exercise with the appellant’s discharge on the first offence I would reach a different outcome, in particular because of the delay involved. She submits that the District Judge was incorrect in asserting that the appellant had the opportunity to address the current proceedings when he was extradited in 2013: he had a right not to waive specialty. The appellant not having agreed, she submitted that under the Framework Decision the correct procedure was for the Judicial Authority then to seek consent from the executing authority - in other words, Westminster Magistrates' Court - to deal with the appellant for the offences on the current European arrest warrant. The District Judge was wrong not to take into account the right of the appellant to refuse his consent to be dealt with for these additional offences when he was extradited under a previous warrant and was also wrong to consider that as a factor in favour of extradition.

Miss Townshend draws support in this regard from Mr Justice Blake's decision in Zapala v Circuit Court Warsaw, Poland [2017] EWHC 322 Admin. In the course of that decision Mr Justice Blake noted that the requested person was entitled to refuse consent in circumstances similar to the present, and that if the Polish authorities in that case had used the correct procedure under the Framework Decision the matter he was then considering could have been dealt with at the time of the earlier extradition. He commented that it was puzzling that the same court in both cases was aware of the outstanding domestic warrants for the two offences in the first place. Mr Justice Blake then said that the failure of the Polish authorities to address the matter on that occasion gave rise to a false sense of security on the part of the requested person. He added that it was disturbing and disruptive for the requested person to have to endure two periods of incarceration separated by, in that case, two years. Miss Townshend submits that Mr Justice Blake’s reasoning is on all fours with this case.

I accept that the appellant in this case had a right to refuse his consent when extradited under the earlier warrant in 2013 to have the current matters dealt with then. I also accept that the Polish authorities could have applied under the Framework Decision to have the matters finalised at that point. So, in a sense, the delay which has occurred is attributable to an extent to the Polish authorities. However, I cannot accept that it lies in the mouth of the appellant to assert that the delay which has occurred in dealing with the matter in this warrant is solely attributable to the Polish authorities. It certainly is not.

In any event, it seems to me that there are three important points. The first is that the crucial factor is whether the appellant's extradition constitutes a disproportionate interference with his right to a private and family life pursuant to Article 8 ECHR. Even were I to conduct a re-balancing, given the accepted fact that the second offence is not a trivial offence, and given that the delay in this case is not unusually long in the context of extradition, it seems to me that the re-balancing exercise would not lead to a different conclusion from that reached by the District Judge. I add as a footnote that given that the European arrest warrant was issued in 2013 the delay since that point cannot be taken into account.

Secondly, it seems to me that no sense of false security on the part of this appellant has been established. The fact is that he was aware in Poland in 2013 that there were outstanding matters. He chose not to have them dealt with at that time which was his right. But there is no evidence that he was ever told that that was the end of the matter and that he could legitimately take the view that the Polish authorities would not pursue him any further.

The third point is this: that it is a very rare case where under Article 8 the extradition of a requested person will have a disproportionate effect on him and his family in ordinary circumstances such as those in this case.

As I have outlined, the District Judge in this case conducted a detailed balancing exercise taking into account all relevant factors. The seriousness of the offending is reduced with the appellant’s discharge on the driving offence, and it may be that some of the delay should be partly sheeted home to the failure of the Polish authorities to apply to Westminster Magistrates' Court for the matter to be dealt with in 2013. But that is no basis for concluding that the outcome of the Article 8 balancing conducted by the District Judge would be different. In the circumstances of this case there is no conceivable outcome other than that this appellant's extradition is proportionate under Article 8 ECHR.

The appellant is discharged on the first offence but otherwise the appeal on this first EAW is dismissed.

That leaves the second, a conviction EAW. In respect of it the appellant seeks to renew an application for permission to appeal against another decision of District Judge Branston, this time dated 6 February 2017, at Westminster Magistrates' Court. On that occasion he ordered the appellant's extradition. The warrant had been issued by the Circuit Court of Zielona Gora on 26 August 2016. It was certified by the National Crime Agency on 7 October 2016. Under it the appellant was sought to serve two remaining sentences of imprisonment - one year, and one year three months and four days - in relation to offences of supplying five grammes of amphetamine, theft of a car and theft of tools from a car.

The only point raised on the appeal concerns Article 8. Miss Townshend contends that the judge was wrong in deciding that extradition was proportionate. She reiterates her points about the judge taking into account that the Judicial Authority did not act in 2013 in seeking consent from the Westminster Magistrates' Court under the Framework Decision to deal with the appellant for these offences.

Given what I have said already, and given the District Judge conducted a very similar Article 8 balancing exercise under Celinski, the result, in my view, is that this application fails. It cannot conceivably be said that the District Judge was wrong in deciding that the appellant's extradition would not be disproportionate even were it correct that he should have recognised that the Polish authorities could have taken action in 2013 under the Framework Directive as described earlier in the judgment.

I refuse the application.

Is there anything more?

MISS TOWNSHEND: No.

SIR ROSS CRANSTON: Thank you both very much.