Moczko v Circuit Court in Katowice (Poland)

This is an appeal against the decision of District Judge Goldspring given on 12^th April 2017 whereby he directed the appellant's extradition to Poland in order to serve the balance of a sentence of eight years' imprisonment which was imposed upon the appellant on 27^th March 2007.

As at the date of the request for surrender made in a European Arrest Warrant (EAW) the balance of the sentence sought to be enforced was 1 year, 3 months and 22 days. By the time of the hearing before the District Judge, however, the appellant had been in custody for some time in the UK, which was a factor to be taken into consideration since it is common ground that the Polish authority would recognise time spent in prison in England when calculating how much of the balance of the sentence the appellant was to serve.

At the time of the hearing before the District Judge, the appellant was in custody. She had two young children, one born on 20^th May 2015. A second child born on 5^th February 2017 was born when the appellant was in custody. It is clear that the expectation before the District Judge was that the appellant would not be the carer of the two children and the District Judge proceeded very much on the basis that mother and two daughters would be separated not just by virtue of any order for extradition. Events have very substantially moved on.

On 4^th May 2017, following the lodging of a notice of appeal, the appellant was released on conditional bail. Her application for permission to appeal was initially refused, no doubt because on the basis of the information available to the District Judge in April 2017 it was difficult to be critical of his decision. However, by July 2017 when there was a renewed oral application before Holroyde J (as he then was) it had become clear that there was the possibility that the appellant would resume the normal day-to-day care of her two young children. That has proved to be the case.

In summary, I have been provided with information adduced on behalf of the appellant but coming from the relevant local authority which discloses that the appellant is now the sole carer of her two young children and that she is enjoying a loving, proper relationship with them. It is accepted by Ms Pottle in her written skeleton argument that in the light of the unfolding history since the order of the District Judge I must consider for myself whether it would now be a disproportionate infringement of the Article 8 rights of the appellant and her two young children if the order of the District Judge were to be upheld.

I deal first with the issue of time left to serve. On behalf of the appellant it is suggested that there is now 5 months and 15 days left to serve if one takes into account the time spent in custody in England and a curfew which was imposed when the appellant was granted conditional bail. The judicial authority does not accept necessarily that the curfew period will be counted towards the balance of the sentence to serve, but it is accepted that the time spent in custody would be set against the balance of the sentence to be served. On that basis it is said that there is a little more than seven months remaining to be served.

There can be no doubt that the appellant was convicted of a very serious criminal offence. That said, she has actually served six years, eight months and nine days in respect of that offending in her home country and further time on remand in the UK. Nonetheless, there is always a significant public interest in this country honouring its treaty obligations and returning persons to serve the balance of sentences when called upon to do so by the relevant judicial authority.

On the other side of the ledger, so to speak, are the following points. First, the appellant had been released from her sentence in Poland on a licence which was due to last until 1^st December 2015. I interpose to say that she was released in 2013 and the licence period was for two years. The appellant complied with the terms of her licence for a period of approximately 15 months. The terms of the licence were broken because she decided to come to the United Kingdom with her then partner, in circumstances which are described in the proof of evidence which she has supplied, without informing the authorities in Poland of her intention to leave Poland and without providing an address in this country as to where she proposed to live.

Those are not minor technical matters, but, nonetheless in the context of the case as a whole they cannot be regarded as significantly serious breaches of her licence conditions.

It is clear from her proof of evidence that that she came to this country with the best of intentions, one of which was to provide for the daughter that she then had. She came, in effect, to find work and settled accommodation, not being able to live with her family in Poland any longer.

The key to this case, however, of course is the effect upon the two children of extradition. The choice facing the court is somewhat stark. If the order of the District Judge is upheld the appellant will be returned to prison in Poland or, in any event, will be returned to Poland and if she is incarcerated and the children go with her, they too will be transferred to a prison regime. On the evidence, there is no family in Poland who could sensibly care for the children. If they do not return with the appellant but extradition is upheld, they will remain in this country, no doubt cared for under such arrangements as are put in place by the relevant local authority.

Those prospects for those children are to be avoided if at all possible. I am clear in my mind that extradition, given the prospects for the children now, would be a disproportionate interference with the human rights of the appellant and her children and in particular their Article 8 rights. This is one of those cases where it is possible for the court to say that the impact upon the children would be exceptionally severe. I have no doubt that if the facts before me had been before District Judge Goldspring, the District Judge would have ordered discharge and not extradition.

I am very grateful to the admirable way in which this case has been approached both by the appellant who has not sought to criticise the decision of the District Judge. Equally, I am grateful for Ms Pottle's realistic approach in her skeleton argument, which can be summarised by saying that she acknowledged the great force in the points which were being made about the impact of extradition upon the two children.

Accordingly and in the light of the reasons that I have given, I propose to allow this appeal and order the appellant's discharge.