Konecny v District Court Czech Republic

This is an appeal against a decision made on 24 April 2017 by District Judge Ashworth, sitting in the Westminster Magistrates’ Court, whereby he directed that the Appellant should be extradited to the Czech Republic to serve a sentence of 8 years’ imprisonment which had been imposed upon the Appellant on 12 May 2008 for three offences of fraud. At the extradition hearing the Appellant argued that his extradition was barred on two bases. First, that extradition would be unjust or oppressive within section 14 Extradition Act 2003. Second, that extradition would constitute a disproportionate interference with the Appellant’s rights and those of his partner under Article 8 ECHR. In this appeal, brought, with the permission of Collins J, the Appellant submits that DJ Ashworth was wrong to conclude that the extradition of the Appellant would not be oppressive or unjust and wrong to conclude that extradition would not be a disproportionate interference with the human rights of the Appellant and his partner.

The Appellant is now very nearly 56 years old. The offences for which he stands convicted in the Czech Republic were committed on 26 November 2004, 21 December 2004 and 7 March 2005 when he was in his early forties and resident in the Czech Republic. The offences were serious offences of their kind; the victims were deprived of property having a value in sterling of approximately £70,000 as at the date of the offences.

The Appellant was tried in his absence in 2008. He had left the Czech Republic in June 2007. The sentence of 8 years’ imprisonment was imposed after a trial in which the Appellant did not participate although he was represented by a lawyer who had been allocated to defend him by the appropriate state agency.

It was common ground before the District Judge that the Appellant had served a sentence of imprisonment between about 2001 and 2003 for an offence of “misappropriation”. He was released from that sentence, conditionally, on 26 March 2003.

According to his evidence before the District Judge (which was accepted to be truthful) the Appellant had some contact with the police in relation to the offences of which he was convicted in his absence in November 2005. The Appellant’s account was that “the police/authorities” approached him and he handed various documents to them. The documents were very important, according to the Appellant, since they had the effect of proving his innocence of the charges which were brought against him subsequently.

Despite this involvement with the authorities in the Czech Republic in 2005 it was accepted by the Respondent that the Appellant was not to be regarded as a fugitive from justice. At the time when the Appellant left the Czech Republic in 2007 he was entitled to do so; there were no proceedings against him and no restriction upon his right to travel and leave the Czech Republic.

Information provided by the Respondent and adduced before the District Judge shows that a decision to detain the Appellant was made in November 2007. On 14 April 2008 a court in the Czech Republic authorised the Appellant’s prosecution and a trial must have taken place very quickly thereafter because sentence was imposed in May 2008.

Although, as I have said, a lawyer was appointed to represent the Appellant in the proceedings in the Czech Republic, the Respondent accepted before the District Judge that the Appellant had no knowledge of the proceedings which had been brought against him until he was arrested under a European Arrest Warrant (EAW) in 2017. The District Judge proceeded on that basis.

Should this appeal be dismissed the Appellant will have an unfettered right to a re-trial in the Czech Republic upon his return. It was common ground before me that I should proceed on the basis that such a trial would respect and conform with the Appellant’s right to a fair trial under Article 6 ECHR.

As I have said, the Appellant came to the UK in June 2007. He was soon followed by his long term partner Ms Olga Janeckova. They have lived together in the North West of England since September 2007. For the last 10 years the Appellant has been employed as a lorry driver. Ms Janeckova has also been gainfully employed. However, in December 2012 she suffered a significant hand injury at work. This inhibited her employment; for the last 4 or 5 years Ms Janeckova has been self-employed making jewellery and selling it on-line. At the time of the hearing before the District Judge the Appellant and his partner had accumulated debts. In the main, that was because the Appellant had been remanded in custody following his arrest and he was unable to work. Following the Appellant’s release on bail (following a hearing before me) the Appellant has resumed his work as a lorry driver.

The EAW was issued by the Respondent on 17 April 2013. It was not certified until 2 March 2017. No explanation for the delay between issue and certification was offered to the District Judge; the delay was not explained before me. The Appellant was arrested pursuant to the warrant on the day it was certified i.e. 2March 2017. He was in custody from that date until early May April 2017.

The relevant provisions of section 14 Extradition Act 2003 are as follows:-

“A person’s extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have

(a)

committed the extradition offence (where he is accused of its commission), or

(b)

become unlawfully at large (where he is alleged to have been convicted of it)”

Despite the apparent clarity of the wording of section 14 Mr Seifert argues that the District Judge was wrong to conclude that the “passage of time” to be considered in this case was from the date when the Appellant was sentenced i.e. 12 May 2008. Mr Seifert submits that the passage of time to be considered in this case was the period from the commission of the first offence i.e. 26 November 2004. He supports that submission by reference to the decision of Blake J in Rahman v County Court of Boulogne Sur Mer, France [2014]EWHC 4143 (Admin).

The salient facts in Rahman were similar to the facts in the instant case. Mr Rahman (a British citizen usually resident in the UK) was alleged to have committed tax evasion offences in France in the period 2007 to 2008. Criminal proceedings in respect of the alleged offences were commenced in October 2009 by which time, on any view, Mr Rahman was residing in his usual home in the UK. On 15 November 2011 he was convicted in his absence and sentenced to a term of imprisonment. It was common ground that Mr Rahman had no knowledge of the proceedings which had been instituted in 2009 nor his conviction and sentence in 2011 until he was arrested pursuant to an EAW in 2013. At his extradition hearing before a district judge and on appeal before Blake J Mr Rahman argued that he was entitled to rely upon section 14 of the 2003 Act and that the relevant “passage of time” began with the earliest date of the alleged offending namely 2007. Mr Rahman had an unfettered right to a re-trial in the event that he was returned to France.

During the course of his judgment Blake J reviewed a number of earlier authorities before concluding:-

“31 ….the ordinary meaning of unlawfully at large is to apply. Indeed any other meaning would render the words of the section absurd if an absentia conviction which is not the responsibility or fault of the appellant could prevent him, essentially, pleading delay at all. Mr Sternberg [counsel for the judicial authority] conceded that cannot have been Parliament’s intention. One of the canons of construction is to avoid consequences that are absurd if it is possible to do so.”

Later, at paragraph 37, Blake J expressed himself thus:-

“Fortified by these authorities I reach the conclusion that in effect a person remains accused of a crime for the purposes of the oppression limb of section 14 unless or until there has been a conviction from which he was required to participate from which he has absconded himself and is therefore a fugitive from justice….”

In the result Blake J concluded that the period of delay to be considered in Mr Rahman’s case began with the earliest date of the offending not the date when Mr Rahman was sentenced.

In Wisniewski and others v Regional Court of Wroclaw, Poland and others [2016] EWHC 386 9Admin) the Divisional Court (Lloyd Jones LJ and Holroyde J) had before them 3 appeals against extradition which raised issues as to the availability of the bar to extradition on the grounds of passage of time under section 14 of the 2003 Act in circumstances where a requested person had left the requesting state whilst subject to a suspended sentence of imprisonment which was activated thereafter in his absence. During the course of his judgment (paragraphs 34 to 45) Lloyd Jones LJ set out the effect of a number of authorities in which section 14 of the 2003 Act had been considered particularly so far as those authorities threw light upon the concepts of a person being “unlawfully at large” within section 14(1)(b) of the 2003 Act and a fugitive. He then expressed himself thus:-

“51.

The term “unlawfully at large” is employed by section 14. The effect of section 14(b) and the words “if(and only if)” is that in a conviction case the only passage of time on which reliance may be placed as barring extradition under section 14 is that since the person became unlawfully at large……”

At paragraph 54 he continued:

“54.

Can a person be unlawfully at large if he is unaware that he is required to serve a sentence of imprisonment so that, in the case of a suspended sentence, the minimum the requested person must know is that the sentence has been activated?.........Whether a person is unlawfully at large within this provision depends on whether he is at large in contravention of a lawful sentence under the applicable legal system. This is an objective state of affairs to which his knowledge and understanding are irrelevant”

It does not appear that the decision of Blake J in Rahman or the authorities upon which Blake J relied were drawn to the attention of the Divisional Court in Wisniewski. Given the context in which the argument was taking place in Wisniewski that is not surprising. However, it seems to me that the conclusion which was reached by Lloyd Jones LJ at paragraph 54 of his judgment (see above), a conclusion with which Holroyde J agreed, must be a statement of the law which is applicable no matter what the factual circumstances may be. Even if Wisniewski is not binding upon me, strictly, as it is the later of the competing authorities I should follow it unless completely satisfied that it is wrong. As it happens I consider it is a compelling elucidation of the meaning of the statutory provisions. Accordingly, in my judgment, the fact that the Appellant was unaware of his conviction and sentence in the Czech Republic until 2017 is irrelevant to the question of when he became unlawfully at large. In accordance with Wiszniewski he became unlawfully at large upon the date when a lawful sentence was imposed upon him in respect of his convictions for fraud. The date when that sentence was imposed was 12 May 2008.

It follows that in assessing whether the passage of time rendered extradition unjust or oppressive the date when the relevant period of time commenced was 12 May 2008. The District Judge was correct so to decide.

I turn to consider whether the District Judge was wrong to conclude that the passage of time between May 2008 and the date of the hearing before him did not render extradition unjust or oppressive. It is now settled that the word “unjust” is directed primarily to a consideration of whether there is a risk of real prejudice to a requested person in the conduct of any trial in a requesting state and that the word “oppressive” is directed to hardship to a requested person resulting from changes in his circumstances that have occurred during the passage of time under consideration.

The District Judge dealt with the issues of injustice and oppression in a comparatively short section of his judgment in the following terms:-

“The long period between conviction and his eventual arrest on the EAW has not been a time of particular change in his life. I have to consider that the offending is particularly serious, repetitive and follows hard upon his release for a like offence. He has been termed a particularly dangerous recidivist. He states that he gave documents to the police in 2005. There was a trial in 2008 and there is no evidence to suggest the documents would have been lost or destroyed. If the documents were lost, as the RP is entitled to a complete re-trial, I am entitled to presume under the principle of mutual trust and respect that the JA would provide an Article 6 compliant trial that would take that potential unfairness into account in the RP’S favour.

Bearing all these factors in mind, the circumstances of the delay do not justify a finding that it would be unjust or oppressive to extradite. It would not be a borderline case in my assessment where culpable delay on the part of the JA would tip the balance in the RP’s favour.”

Mr Seifert takes issue with this passage in a number of respects. He submits that the District Judge was wrong to conclude that the delay was coincidental with a period of time during which there had been no particular change in the Appellant’s life. He submits, too, that the District Judge was wrong to “adopt” the description of the Appellant as a “particularly dangerous recidivist”. Finally, he argues that the District Judge was wrong in his approach to the Appellant’s evidence about his handing over exculpatory documents to the police in 2005.

I accept that the District Judge’s expression of view to the effect that nothing of particular significance changed in the Appellant’s life between 2008 and 2017 misses the point to some extent. Of course it is true that during this period the Appellant led a settled life in the North of England during which period both he and his partner were in gainful employment. In that sense nothing much changed. This pattern, however, represented a very marked change from that which had preceded it when the Appellant was apparently committing serious crimes in the Czech Republic over some years.

There is less force in the suggestion that the District Judge “adopted” the phrase “particularly dangerous recidivist”. In my judgment the District Judge did not adopt the phrase so much as simply record a view of the Appellant which had been set out in the EAW – as to which see paragraph 34 below.

I am also of the view that the District Judge cannot be criticised for his approach to the evidence given by the Appellant about the handing over of exculpatory papers to the police in 2005. His statement to the effect that there was no evidence to show that the papers had been lost was factually accurate. He was also correct to assume that if the papers had been lost that would be dealt with appropriately by the Czech trial court (upon the assumption that the Appellant exercised his right to a re-trial if extradited).

Mr Swain submits that extradition would be neither unjust nor oppressive. He acknowledges the substantial passage of time which has elapsed since the Appellant became unlawfully at large but he submits that there is no evidence to suggest that the Appellant could not receive a fair trial (if he chooses to exercise his right to a re-trial) and that he has failed to show that extradition would be oppressive. He submits that such hardship as the Appellant will face, if extradited, is no more than is “the inevitable impact” of extradition.

I have reached the conclusion that the extradition of the Appellant would not be unjust or oppressive. There is no real basis for a conclusion that extradition would be unjust. The Appellant has been convicted of serious crimes in his absence. I am entitled to infer and do infer that the evidence presented to the court justified the convictions. Upon his return to the Czech Republic the Appellant can exercise his right to have a re-trial if so advised and I must assume or infer that such a trial will be fair within Article 6 ECHR. That being so the production of the Appellant’s documents will, if he is correct, result in his acquittal. If they are not adduced in evidence the reason for that state of affairs will be examined critically and the Appellant’s right to a fair trial respected.

Oppression is an elusive concept. However, the bar for oppression is a high one, requiring more than proof of mere hardship. It is a hurdle which will not be satisfied easily – see Gomes v Government of Trinidad and Tobago [2009] UKHL 21 at [31]. On the basis of the facts found in this case I cannot conclude that the District Judge was wrong to conclude that extradition of the Appellant would not be oppressive. I am not persuaded that such would be the hardship to the Appellant and his partner that it would be oppressive to direct extradition. This ground of appeal does not succeed.

I do not ignore that Mr Seifert made detailed submissions to me about the delay which has occurred in this case. However, he did so primarily in the context of his contention that the undoubted delay was such that extradition, now, would constitute a disproportionate interference with the Article 8 rights of the Appellant and his partner. I am satisfied that the issue of delay is best dealt with in the context of the Art 8 challenge. If it does not tip the balance against extradition in that context it will not do so in the context of section 14 of the 2003 Act, at least in this case.

Whether or not extradition constitutes a disproportionate interference with a person’s rights under Article 8 ECHR (or those of his family) is to be judged by reference to a trilogy of cases, namely Norris v Government of United States of America (no.2) [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa 2 [2012] UKSC 25, and Celinski and Others v Polish Judicial Authority [2015] EWHC 274. No useful purpose would be served by citation from those authorities; they are extremely well known to practitioners in this field.

Mr Seifert submits that the assessment undertaken by the District Judge in accordance with Celinski was flawed in a number of respects and that his ultimate conclusion that extradition was not a disproportionate interference with Article 8 rights was clearly wrong. The points made by Mr Seifert in support of these contentions were these. First, the District Judge was wrong to regard the fact that the Respondent regarded the Appellant as a “particularly dangerous recidivist” as a factor favouring extradition. Second, the District Judge reached unjustified conclusions about the truthfulness and/or accuracy of Ms Janeckova’s evidence about her suicidal thoughts. Third, the District Judge attached undue weight to the sentence imposed upon the Appellant given that he had the right to a re-trial upon his return. Fourth, he was wrong to conclude that the Appellant’s right to a re-trial constituted a factor in favour of extradition. Fifth, the District Judge failed to consider the substantial delay between issue and certification of the EAW.

When setting out the factors which favoured extradition the District Judge said:-

“Due to a previous conviction for like offending in 2003 for which he was sentenced to 4 years in custody he was deemed by the court to be a particularly dangerous recidivist”

The phrase “particularly dangerous recidivist” is to be found in Box (e) in the EAW. It is, apparently, a term which is to be found in a criminal statute in the Czech Republic (see Box (e)). I infer, as I should, that the Respondent is using the phrase accurately in the EAW and that the Appellant is, correctly, regarded as a “particularly dangerous recidivist” in the Czech Republic.

That being so, I agree with the District Judge that it is a factor in favour of extradition. The fact that the Appellant has been a law abiding citizen since coming to the UK does not negate a view of him which the Respondent is entitled to hold by virtue of its domestic law. In any event, of course, the fact that he had been convicted and sentenced in respect of similar offences prior to the commission of the offences in question was clearly, and obviously, a factor favouring extradition. I do not accept that the District Judge fell into error in treating the Respondent’s categorisation of the Appellant as a “particularly dangerous recidivist” as a factor favouring extradition.

I am not persuaded, either, that the District Judge was in error in making an assessment of the truthfulness and/or accuracy of the evidence of Ms Janeckova by reference to her demeanour and conduct in the witness box. In her proof of evidence Ms Janeckova asserted that the prospect of the Appellant’s extradition was making her suicidal. No expert evidence was called before the District Judge on this issue. It is clear to me that in the absence of such evidence the District Judge had to assess the evidence of Ms Janeckova by reference to such “tools” as were available. In my judgment, he was entitled to make an assessment of that evidence by reference to her demeanour and apparent “stress level” when giving oral evidence. It is to be noted that he made his assessment, too, by reference to what she said. In my judgment such an approach was not flawed; day in and day out judges up and down the country engage in similar processes.

The District Judge was not wrong to conclude that the significant sentence imposed upon the Appellant and the Appellant’s right to a re-trial were factors which favoured extradition. Self-evidently, in my judgment, the fact that the Appellant had received a long prison sentence following conviction was a factor which supported an order for extradition. Similarly, the fact that he had an absolute right to a re-trial if he chose to exercise it was a factor which favoured extradition. By that process the propriety of the Appellant’s conviction could be scrutinised.

That leaves the issue of delay. The District Judge correctly identified it as a factor which militated against extradition. He noted that the delay between offending and the present time was 12/13 years and that the offences were committed “when the [Appellant] was considerably younger”. He went on to conclude:-

“There has been considerable delay in locating the RP. He has got on with his life in that time and there is no evidence that he had any knowledge of the proceedings against him. If he were to be extradited, it would no doubt, cause great distress to his partner who has lived with him for 10 years and cause financial hardship. …..Due to the passage of time, the imperative for justice will have diminished, and, apart from the RP leaving the requesting state shortly before his [domestic] arrest warrant was issued (hence their inability to locate him) there is no explanation for why it has taken quite so long to find him bearing in mind he was living openly in another member state….. ”

As I have said Mr Seifert’s principal complaint, at least in his written material, is that the District Judge failed to consider the delay which occurred between the issue of the EAW and its certification. It is true that he did not mention this aspect specifically when dealing with his assessment of the impact of extradition upon the Article 8 rights of the Appellant and his partner and/or his assessment of the proportionality of extradition. There can be no doubt, however, that he was aware of the period of time between the issue and certification of the EAW because it is mentioned at the beginning of his judgment. Further, on any view, the Judge was fully aware of the very long delay between offending and the hearing before him and specifically mentioned it as a factor against extradition as I have explained above.

I appreciate that there have been decisions of this court which have been critical of the authorities in requesting states and in the UK over unexplained delays in either issuing or certifying EAWs. The decision of Hickinbottom J (as he then was) in Stryjecki v District Court in Lublin, Poland [2016]EWHC 3309 (Admin) is a very good illustration of this point. As Hickinbottom J himself recognised, however, each case in which Article 8 is raised as a bar to extradition is fact specific and the weight to be attached to unexplained delay in any given case must depend upon the nature of the other factors in play.

In this case the District Judge accepted that the domestic warrant for the Appellant’s arrest was executed promptly. The delays thereafter (prior to issue and following issue before certification) were unexplained as the District Judge recorded. He did not make a finding as to whether the unexplained delays were culpable but on the scant information before him that his hardly surprising.

I have reached the conclusion that the District Judge was not wrong simply to categorise the delays in this case as unexplained. A degree of caution needs to be exercised about categorising conduct (or lack of action) as blameworthy or culpable when very little information is provided to a court by way of explanation. In my judgment, the District Judge was entitled to approach this case on the basis that there had been long delays in the processes leading to the certification of the EAW which were unexplained. He was not wrong to desist from inferring that such was the length of the delay that the Respondent and/or the NCA were guilty of culpable delay. That said, the delay in this case was a powerful factor militating against extradition.

In the light of the foregoing, was the District Judge wrong to conclude that extradition was not a disproportionate interference with the Article 8 rights of the Appellant and his partner? He correctly considered that there were very powerful factors supporting an order for extradition. They are set out with clarity in his judgment at pages 9, 10 and 11. As I have found, he did not err in his identification of some of those factors as suggested by Mr Seifert. In particular the District Judge was correct to attach considerable weight to the serious nature of the offending coupled with the lengthy prison sentence imposed and the “general” public interest factors which are present in all extradition cases. He was entitled to attach weight to the Respondent’s categorisation of the Appellant.

I would, myself, have been troubled about the length of delay in this case (and perhaps the reasons for it) to a greater extent than was the District Judge. That is a far cry, however, from concluding that his ultimate decision about whether extradition was a disproportionate interference with Article 8 rights was wrong. Having reflected carefully upon the submissions of counsel I am not persuaded that the decision of the District Judge on the Article 8 issue can be said to be wrong and accordingly I must dismiss this appeal.