Janik v Judicial Authority of Poland

This is an appeal against the decision by District Judge Timothy Devas made on 23^rd September 2016 at Westminster Magistrates' Court ordering the applicant's extradition to Poland in respect of a conviction European Arrest Warrant (“an EAW”). The EAW was issued by a judge of the public prosecutor's office in Poland on 22^nd February 2016 and certified by the National Crime Agency in May last year. The applicant's extradition is sought to serve two remaining sentences of imprisonment, one of eight months and ten days and the other of five months and 28 days.

The appellant is a 29 year old Polish woman. She has two children, one aged 7 and the other aged 3. She came to this country in the summer of 2009.

Her offending comprised two groups of offences. The first group comprises three offences. First, on 22^nd July 2006, when she was 18, she forged the signature of her mother on a purchase agreement at pawnbrokers. No loss is indicated. On 22^nd July 2006 she gave a false statement to the police informing them that she had found a mobile phone whereas, in fact, she had received it from her father. The third offence is that on 22^nd July 2006 she assisted in the sale of a mobile phone to the detriment of another, the value being some £63 according to the exchange rate at the time.

The second group of offences involved shoplifting. On 5^th December 2007, when she was 19, she, in company of two others, stole a pair of shoes valued at £161 and women's underwear valued at some £152. The total value of the offending amounted to £376.

For the first group of offences the appellant was given a suspended sentence of 10 months' imprisonment on 30^th August 2007. That sentence was activated by the Regional Court at Kielcach, Poland on 3^rd June 2009. The appellant states, and it seems to be the case, that the activation occurred as a result of the shoplifting offences. She seems to have spent six weeks in custody in respect of that offending.

As regards the second group of offences, the two shoplifting offences, the appellant was given a suspended sentence of six months on 19^th December 2008. All but two days of that sentence remain to be served.

Further information from the judicial authority informs us that the appellant attended the hearing at which the 10 month sentence of imprisonment was activated, but that after the decision became final, when she was called to prison to serve her sentences on 22^nd August 2009, she did not appear. In fact, as I have said, by then she had come to this country.

When the matter came before the district judge, it seems that the appellant was ill-served by her then representatives. There was a proof of evidence to which I shall return. That was unsigned and the appellant has complained about inaccuracies in it. More importantly, there was no written argument before the district judge. Had there been a written argument I am sure that some at least of the points now made would have been addressed by the district judge. There are further criticisms by the appellant of her previous representatives in relation to the appeal lodged with this court. Certainly the lack of any response by the previous representatives to contact by the appellant’s current solicitors reinforces the criticisms made.

The district judge had one issue before him, namely whether the appellant's extradition would be incompatible with her rights under Art.8 of the European Convention on Human Rights and thus barred by s.21 of the Extradition Act 2003.

The district judge said that he had read the appellant's proof of evidence and the opening note on behalf of the judicial authority. He described the offending as fraud, perverting the course of justice and handling a stolen mobile, the first group of offending, and had then referred to two thefts, namely the shoplifting. His account of the relevant law which followed is impeccable.

Then in a short analysis the district judge set out the factors in favour of extradition. As well as the public interest factors, he said that the appellant was clearly a fugitive given that she was aware that she had to serve a sentence of imprisonment. The delay in the case, in any event, was as a result of her own actions:

As regards the factors that militated against extradition, the district judge referred to the appellant's family life, including the inevitable distress and upheaval that extradition would cause her two young children. He added that the appellant's conduct in this country had been without blemish.

In conclusion, in accordance with Polish Judicial Authorities v Celinski & Ors [2015] EWHC 1274 (Admin), he concluded that the balance came down in favour of extradition.

Let me return to the unsigned witness statement before the district judge. It stated that the father of the children had left and that he did not want anything further to do with the appellant or the children and had withdrawn financial support. It also referred to the appellant’s parents and her two sisters who lived in this country. The mother and father were said to be in good health, living with the two sisters, one sister having two young children, a six year old and a baby of four months. That sister's boyfriend also lived with the family in the three bedroomed house. The appellant herself, the statement continued, lived in her own house with her children, but she did not have any income from child benefit. Her parents were not able to help her financially.

Subsequently, the appellant has identified important inaccuracies in that statement, which she contends would have been corrected if she had been properly represented. Importantly, her father had left her mother some three years previously. In addition, far from her mother being in good health, she suffered from depression.

The appellant appealed to this court. I gave permission to appeal since I was concerned with the age of the conduct, dating as it does back over a decade, and also with the characterisation by the district judge that this was serious offending. I was also concerned about the appellant's young age at the time of the offending.

The matter came on for a hearing before Nicol J and he granted a renewed application for funding to enable a report to be prepared by a forensic psychologist. In addition, Nicol J directed that Enfield Social Services, which covers the area where the appellant lives, should be invited to provide a report on the appellant and her children pursuant to s.7 of the Children Act 1989. Through unfortunate error, it seems, this court never served that invitation on Enfield Social Services. Consequently, this court is deprived of the benefit of its report, especially in relation to what arrangements would be made for care of the two children should the appellant be extradited.

The report prepared by Dr Tom Grange, a chartered psychologist and registered clinical psychologist, contains a passage on the implications of the appellant's pregnancy. The conception of the child followed the hearing before the district judge. Consequently, that passage of the report is unarguably admissible under the Fenyvesi test, [2009] EWHC (Admin) 231 at para.32. In that passage of the report, Dr Grange points to the difficulties which the appellant in particular will face should she be extradited and have her child with her in prison. It almost goes without saying that this material was not before the district judge.

Before me, Mr Swain advanced the judicial authority’s case very fairly in light of the new evidence. He conceded that the district judge was not fully informed as a result of the way the case was presented to him on behalf of the appellant. He accepts that the CPS in representing the judicial authority at the Westminster Magistrates' Court could have performed more adequately. However, he justifies the result reached by the district judged given the approach in Celinski. While conceding that delay can diminish the weight to be attached to the public interest in extradition (see HH [2012] UKSC 25 at para.8(6)), he maintains that the delay in this case is attributable to the appellant's own action. The district judge in his submission was correct to characterise the offending as serious.

Unfortunately the district judge did not in my view consider the point about the delay diminishing the weight attached to the public interest in the extradition of this appellant. Moreover, this is a case where the offending, as its details make clear, was not serious. Although the district judge referred to a pattern of offending, it seems that the only offending involved was the two groups of offences. It appears that it was the second group of offences which resulted in the triggering of the suspended sentence in relation to the first, and it was the failure of the appellant to appear to serve these sentences which in turn activated the sentences in relation to the second group of offences. Moreover, a factor militating against extradition was the age of the appellant at the time.

It is highly unusual for this court to upset a finding of an experienced district judge in a decision on extradition under Art.8 of the Convention. However, there are three reasons that the appeal must be allowed.

First, there is the point that the matter was not properly advanced before the district judge. If there had been a written argument on behalf of the appellant, it would have identified the factors which I have just highlighted. Further, the appellant’s witness statement also contained important inaccuracies bearing on the capacity of the family to look after the children should the appellant be extradited. For example, we now know that the appellant’s father is not available to provide an extra pair of hands for care for the children, and there is a question mark over the capacity of the mother.

Secondly, there is the new information which was not available before the district judge. That concerns not only the pregnancy of the appellant and the extra pressures which that will bring to bear with respect to this particular appellant, but it also underlines the difficulties which will arise in relation to the care of the two children should the appellant be extradited.

Thirdly, there is what seems to have been a failure of this court in obtaining information from Enfield Social Services about how the appellant’s children will be cared for were she to be extradited. There was no requirement for a report, but Nicol J concluded that one was necessary. The absence of any support it would have provided the appellant’s case through, it appears, the court’s own failings should not disadvantage her.

All these are factors which, had they been before the district judge, would in my view have resulted in the Celinski balance being struck differently.

Overall then, I have reached the conclusion that this appeal should be allowed.