Cwikla v Polish Judicial Aurhtority

The appellant appeals against a decision of District Judge Zani made on 21st April this year to order her extradition to Poland pursuant to a conviction European Arrest Warrant (“EAW”). That warrant was issued by the Regional Court in Poznan, Poland, on 11th March 2013 and issued for service by the National Crime Agency on 29th January 2014. The domestic warrant for the appellant's arrest had been issued in August 2012.

The EAW covers two offences. The first is an offence committed on 30th March 2006 of possessing some 35 grammes of amphetamine, 162 grammes of marijuana and 222 ecstasy pills. The second offence occurred over the period October 2005 to March 2016. It involved supplying Class A and Class B drugs, supplying ecstasy tablets on at least five occasions, marijuana on several occasions for commercial gain, and the attempted supply of at least 215 ecstasy pills, 52 portions of amphetamine and at least 135 portions of marijuana. The warrant also states that the appellant aided another to supply narcotics by the supply of narcotics to him. In the warrant, the EAW framework list is ticked for drug offending.

As a result of this offending he appellant was sentenced in 2010 to two years and two months' imprisonment. She served some time in prison, it is thought, on remand, and consequently the remaining sentence is one year, eight months and two days. The sole ground of appeal is Article 8 of the European Convention on Human Rights.

When the matter came to a hearing on 16th August this year, I ordered that the case be adjourned so that Miss Bostock could obtain through the CPS further information from the Polish authorities about what provisions would be made for the appellant were she to be extradited. That is because the appellant at that point was some six months pregnant. She is due to give birth towards the end of November this year. Information has been provided.

The appellant was born in 1981. She has a husband and a daughter, "M", from a previous relationship. M resides with the appellant's mother in Poland. On the appellant's account, M's father refused to allow M to come to live with the appellant in the UK. However, she is now 18 years old and it is anticipated she will come here.

The appellant was present at her trial in 2008. She unsuccessfully appealed against her sentence. However, she was successful in applying to defer her sentence on two occasions for six months at a time. That was because she was pregnant with her second daughter, "D", who was born in 2010. The appellant told the District Judge that she thought that a third application for deferral had been made, but she later learnt that that was not the case.

Before the District Judge she accepted that, as he put it, she "somewhat buried her head in the sand". The District Judge commented that she was hoping that the Polish authorities would not pursue her. The appellant had in fact come to this country in November 2010 with her husband and they began a new life here. She lives with her husband and her daughter D, who is now six years old and attending Year One at school. In fact the appellant and her husband, who attended at the hearing on the first occasion when this case was adjourned, cannot be here today because it is D's first day at school. The appellant, as I have foreshadowed, is now pregnant with her third child. At the time the District Judge heard the case she was eight weeks pregnant.

The appellant has been working part-time as a cleaner. Her husband has been undertaking courses to improve himself, including an Open University degree for engineering. He informed the District Judge that should his wife be extradited he would have to curtail his studies. As well he would not be able to work overtime in his current employment since he would have to care for D. His evidence before the District Judge was also that when he met his wife she was going to through a difficult period in her life and had been a victim of domestic violence. He told the District Judge that he had contacted his mother, who resides in Germany. She had offered to come here to assist the family were the appellant to be extradited, although the District Judge commented that it was unclear as to how long she would be able to remain.

The District Judge referred to the authorities in relation to the Article 8 point, in particular to Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551. In accordance with that decision he set out the factors in favour of and against extradition. In favour he mentioned the public interest in the United Kingdom abiding by its international extradition obligations, the seriousness of the offending and his finding that the appellant was a fugitive from justice. Against extradition were the appellant's settled and law-abiding life here, that she was in employment and the family had accommodation, that she lived with her husband and daughter, and that she was five weeks pregnant, so that she might have to give birth in custody if extradited. The District Judge added that she asserted "that if she is to be considered to be a fugitive from justice, that should be only from 2012 onwards."

The District Judge then set out his findings and ruling. He concluded that it would not be disproportionate to extradite the appellant. After referring to public interest factors in favour of extradition he said that the offences were serious and added that the appellant was unlawfully at large:

The District Judge then continued:

Miss Herbert for the appellant, in cogent and careful submissions, contends that the District Judge was wrong. His Article 8 balancing was flawed in three respects.

First, she identifies, correctly, that the District Judge failed to mention the length of time since the offences were committed. She refers to the well-known passage by Lady Hale in HH v Deputy Prosecutor of the Italian Republic of Genoa [2012] UKSC 25, [2013] 1 AC 338, that delay since a crime was committed:

Miss Herbert then submitted that the delay in this case was significant in that the appellant now had a six-year-old daughter and by the end of the year would have a further child. In summary, the passage of time in this case significantly increased the impact of extradition on family life and the District Judge had not undertaken the careful examination as required by authorities such as HH.

Miss Herbert contended that the District Judge had wrongly taken into account the fact that the appellant was a fugitive and unlawfully at large. There was in her submission no evidence that the appellant had fled the country. What had happened was that she had applied and been granted a deferral of her sentence, and that having occurred she had come to this country and established a new life.

Thirdly (and this is where Miss Herbert concentrated her submissions) the conclusion of the District Judge was flawed because he had not properly taken into account the effect of extradition on the family, in particular on D and on the unborn child. He had simply stated that there would be hardship, but he had failed to address how the family would cope with the appellant's absence for one year and eight months were she to be extradited. There was no one available to assist the appellant's husband, who would have to give up his studies, and as well D, who knew her mother was pregnant, and would not be able to bond with her new baby brother or sister.

Quite apart from the impact of the appellant's absence of her mother, D would be affected by that particular loss. She would not be able to visit her mother in prison, certainly not on a regular basis, given that the expectation was that the family would remain in this country. Quite apart from that, Miss Herbert underlined the fact that the District Judge had not taken into account the impact of the birth of the new baby in prison in Poland were she to be extradited.

My task in the appeal is to determine whether the conclusion the District Judge reached is wrong. I have referred to the balancing exercise he undertook in accordance with Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551 and to his findings and rulings. The background is that the appellant is wanted to serve the remainder of a sentence imposed for serious offending. Notwithstanding Miss Herbert's attempt to underplay the seriousness of the offending, given that the sentence was only just over two years in length, there can be no doubt that this was serious offending, commercial drug-dealing. Undoubtedly the District Judge omitted to mention delay. Miss Bostock contended that as an experienced judge the District Judge was aware of delay and would have factored it into his consideration. In any event the delay in my view does not play a decisive role in the Celinski balancing outcome in this case.

There has been a passage of time, and that has had effects on the family which Miss Herbert quite rightly raised. But the delay is attributable in large part to the appellant herself. The appellant left Poland knowing that she still had a sentence to serve. The Polish authorities had allowed her to defer her sentence but she was aware that at some stage she had to serve it and she should have kept in touch with the Polish authorities.

Indeed, that is the background to the District Judge's conclusion that the appellant was unlawfully at large and a fugitive. She had been released because of the impending birth of D, and although there was no evidence that she was subject to travel restrictions, the plain fact is she left Poland and did not remain in contact with the Polish authorities. She gave the explanation to the District Judge that she thought there had been an application for a further deferral of the sentence and only learnt later that that had not occurred. To my mind that goes nowhere since it would only have been for another six months.

Let me then turn to the major consideration in this case, the impact of the appellant's extradition on the daughter, D, and on the unborn child. To some extent the case which Miss Herbert now advances is at odds with the evidence before the District Judge, although I accept Miss Herbert’s point that when the appellant prepared her witness statements for the hearing it may be that she had not fully appreciated the impact of her pregnancy should she be extradited.

However, the evidence before the District Judge was that both the appellant and her husband cared for D and worked, in other words, that she was not the sole carer. There was also evidence before him that the husband's mother was prepared to come from Germany, at least for a time, to assist the family. In addition there was evidence that the oldest child, now 18, intended to move from Poland and also that the husband had a sister who lived in the United Kingdom – both potentially able to assist. And contrary to what is being said now, there was no evidence about the feelings that D might have were her mother to be extradited, and were she not to be able to bond with her baby brother or sister, albeit that one can understand that that might be the natural reaction of a young girl.

The impact of extradition on young children is obviously a relevant consideration in the Celinski balance, but that does not mean that extradition will be disproportionate. The District Judge stated that there would be hardship, and that included hardship for D, but the points which Miss Herbert quite rightly advanced are inevitable in this type of unfortunate situation.

In my view it would have been better if the District Judge had given specific consideration, in particular, to the position of the unborn child. In the context of domestic criminal justice as a result of R v Petherick [2012] EWCA 2214 (Crim), [2013] 1 Cr App R (S) 116, sentencing courts in this country need to ask whether a custodial sentence is a proportionate means of balancing the effect of the sentence, taking into account the legitimate aims of sentencing, against the impact of that sentence on young children, and that includes specific consideration of any unborn young child, (see the recent decision of R v Roman(Ana-Maria) [2017] EWCA Crim 6, [2017] 1 Cr App R(S) 43). Albeit not ideal, the existence of mother and baby units in this country mean that babies have the company of their mother in the same way as though not in custody.

As I say, it would have been preferable if the District Judge had given specific consideration to the position of the unborn child. Perhaps he assumed that the appellant would apply again, successfully, for a deferred sentence as she had in the past, or that he knows the position in Polish prisons. In any event we now know, as a result of the enquiries which Miss Bostock initiated, and as set out in the further information provided on 21 August by the Regional Court in Poznan, that there are two prisons in Poland which are adapted for pregnant females and that they do have facilities so that a child can accompany their mother serving a prison sentence. The further information sets out in detail the healthcare which is available as well as the other special arrangements which are made for pregnant prisoners or those with very young children. In particular, the further information states that until the child reaches the age of three years it is possible for him or her to remain with the mother.

In light of what I have said, and albeit that the position of this family will be far from ideal as a result of extradition, in particular that D will not have her mother and will not have her baby brother or sister, and that that baby may be with her mother in prison, I cannot regard the conclusion of the District Judge as being wrong as regards the Article 8 assessment. This was serious offending. There is a public interest in the court upholding the UK's obligations to other countries under extradition arrangements. Notwithstanding the powerful arguments which Miss Herbert has advanced I cannot conclude that the District Judge's extradition decision was wrong. I dismiss the appeal. Thank you very much. Is there anything more?

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