Szczudlo v District Court in Krakow (Poland)

The appellant appeals against the decision of District Judge Snow made on 12^th May 2016 to order his extradition, pursuant to a conviction EAW issued by the respondent on 15^th May 2008 and certified by the NCA on 15^th March 2015.

The EAW relates to four offences:

The appellant was arrested on the EAW on 18^th November 2015. The matter was adjourned, pursuant to s.8A of the Extradition Act 2003. On 3^rd December 2015, he appeared at Southwark Crown Court when he was sentenced for possession of a false identity card under s.4 of the Identity Cards Act 2010 to a term of imprisonment of 6 months. He was released on 8^th April 2016.

The extradition hearing took place before the District Judge on 12^th May 2016. An application for the hearing to be adjourned as the appellant's child, A, was undergoing an assessment the following day in relation to a suspected autistic spectrum disorder (“ASD”), was refused. Extradition was ordered on the same day.

On 18^th May 2016, the appellant applied for permission to appeal.

The sole ground of appeal which is now pursued, following the grant of permission by King J on 24^th November 2016 at an oral renewal hearing, is that the District Judge erred in finding that extradition was a proportionate interference with the appellant's Art.8 rights, pursuant to s.21 of the Act.

Ms Iveson, for the appellant, in her skeleton argument at para.26 makes four submissions. She submits that the District Judge erred in that:

Ms Iveson did not pursue this submission in her oral submissions. I can take it shortly.

In her witness statement, dated 7^th April 2016, the appellant's partner, Carly Neville, referred to concerns that had been raised as to whether A had ASD. She said she was expecting SENCO [Special Educational Needs Coordinator] to conduct their assessment. She also said that she had an appointment on 13^th May 2016 at St Peter's Hospital for an initial assessment for speech and language therapy. However, no application was made to adjourn the proceedings at this stage, or at the hearings on 14^th April or 4^th May.

As the District Judge noted at para.26 of the decision, the only evidence before him on 12^th May, as to the possible autism of A, was a letter confirming that A had an appointment with a speech therapist on the following day.

Mr Swain, for the respondent, observes that it is not apparent that there had been any attempt by the appellant or his family at that stage to instruct an expert to assist A in the family unit.

In the circumstances prevailing at the hearing 13^th May, I consider it understandable that the District Judge was not prepared to make any finding other than that A was under investigation for possible autism (see decision letter para.29).

In my judgment, the decision of the District Judge to refuse to adjourn the application made on the day of the hearing was within his case management powers.

It is this submission which is at the heart of this appeal. A report was obtained from consultant psychologist Graham Rogers, dated 13^th June 2017, written after a home visit on 2^nd February 2017, when he spent eight hours with the family.

When the appeal first came before me on 5^th July 2017, I adjourned the hearing in the light of the criticisms made by the respondent of Mr Roger's report for an amended report to be served. A further report, dated 1^st July 2017, which addresses those criticisms is now before the court.

Ms Iveson submits that evidence now available that was not available at the hearing (in the form of Mr Roger's report) would have resulted in the District Judge deciding the question before him differently (s.27(4) of the Act). The respondent accepts that the evidence would not have been available at the hearing before the District Judge, as the formal diagnosis of ASD postdates that hearing. However, Mr Swain submits that that evidence would not result in a different outcome to the balancing exercise.

Mr Swain and Ms Iveson are agreed that in the light of the new evidence I should conduct the balancing exercise afresh.

A was born on 13^th December 2013. Not long after the twins were born, Ms Neville says her relationship with the appellant ended. She was separated from him for about 2 years prior to his arrest on 18^th November 2015.

The appellant was only released from custody on 8^th April 2016. That being so, he had spent very little time, a period of about of 6 weeks, living with A as part of a family unit. As the District Judge noted, the appellant had, at the time of the hearing before him, only been back in the lives of his family for a short period (para.35).

The evidence of Ms Neville, at para.5 of her first proof of evidence, is that after their relationship ended the appellant "still saw the children on a regular basis” and “helped in many ways, offering emotional and psychological support [for herself and the children]”.

He would, up until his arrest, still take the children to play centres and would spend a lot of time with them. During the period the appellant was in custody she was assisted in caring for the children by her parents.

Mr Rogers, at para.110 to para.122 of his report, considers the potential impact of the appellant's extradition on this vulnerable child's life. He advises that until A has become established in school and has begun to develop communicative skills, a separation would potentially great harm.

Mr Rogers says that the evidence shows that "the primary carer of A is his father." (Para.140). However, earlier in the report, Mr Rogers explains what he means by describing the appellant as the primary carer of A. At para.98, he states, "It is the choice of [A] that his father is primary. Those with ASD do not always respond to the family's choice of primary care giver."

Mr Rogers says that if A were separated from his father for a second time, it could have a serious effect on him due to the “smearing behaviour” that A has exhibited previously. He says that he would expect a repeat of the smearing behaviour and also "developmental regression."

It is the view of Mr Rogers that it would take approximately 12 to 18 months for A's behaviour to stabilise if the appellant is to be extradited (para.118). He adds that it is possible it would take longer and would possibly never stabilise, nevertheless, Mr Rogers concludes (at the end of para.119) that, with support, he would anticipate the “behaviour” settling.

At paras.123-135 of the report, Mr Rogers considers how A can be managed in the absence of his father. Much would depend on the support that the family receive. At the present time, they receive limited support (para.33), and little or no direct involvement from the local authority (para.46). They receive no respite care from social services, or other support, (para.130). It is clear from the report that Mr Rogers considers that the support that has been provided to help with A has been inadequate (see paras.130-135 and para.143). Mr Swain observes that it is not clear what assistance may be available to the appellant's partner in his absence and whether such support can now be provided, given the clear diagnosis of A's condition.

It does appear that since the extradition hearing, Ms Neville has obtained the assistance of an occupational therapist, that she is paying privately for, whom A now attends, (see para.12 of her third proof of evidence). Ms Iveson also accepts that social services may be able to provide respite care once a week but she submits that whatever further assistance can be provided, it would not off set the separation of A from his father.

In conclusion, under the heading "Summary", Mr Rogers states that A presents with "severe" Autistic Spectrum Disorder (para.136). In Mr Rogers' view, if the father was extradited there would be "a significant negative impact on [A], the effects of which may last for several years and impair his development" (para.141).

However, it seems to me to be clear from paras.118 and 119 of the report, to which I have already referred, that Mr Rogers is of the view that with support it would take approximately 12 to 18 months for A's behaviour to stabilise in the event of the appellant's extradition.

I do not underestimate the problems that A's behaviour causes, and I have taken into account also, as Ms Iveson has urged me to do, the impact of that behaviour on his twin brother, but I have to balance the impact of the appellant's extradition on A and the family (together with any other factors against extradition) against the factors in favour of extradition.

I do not accept that the evidence now available demonstrates that the impact of extradition would be exceptionally on A and the rest of the family, as Ms Iveson contends.

The District Judge had regard to the relevant authorities and, in my judgment, conducted an appropriate balancing exercise. However, as I have said, it is now for me to conduct that balancing exercise afresh.

As the District Judge observed when considering factors in favour of extradition at para.33 of the decision, the original offences (apart from the cannabis offence) plainly could not be described as trivial. Significant terms of imprisonment remain to be served.

The District Judge found that the appellant flagrantly breached the terms of his parole and suspended sentences. He became a clear and determined fugitive from justice when he left Poland in 2005.

The appellant has, as the District Judge found at para.33, lived a clandestine life in this country to avoid detection. Whilst here, he has offended. These remain the factors that favour extradition.

The factors against extradition include the offences being old and that the appellant has served part of his sentence for the robbery. The District Judge noted that, in addition, his children will undoubtedly be distressed at separation from their father.

I now have regard to all the new evidence to which I have referred (but do not need to repeat) in relation to A's autism and the impact of separation from his father on him.

The high public interest in honouring extradition arrangements and ensuring this country does not become a haven for international criminals weighs heavily in favour of extradition.

I accept that the appellant's children, in particular A, will be affected by separation from their father but they will have the continued loving support of their mother and grandparents, albeit that the grandparents, by reason of their ill health, will not be able to assist their mother to the extent that they have in the past. As Ms Iveson has described her, Ms Neville is a caring mother and extremely tenacious. She should now obtain the support from social services to which Mr Rogers considers she is entitled.

Weighing the factors in favour of and against extradition, I do not consider that the overall balance has changed by reason of the new evidence.

As I have conducted the balancing exercise afresh, neither this submission nor Submission 4 strictly require consideration. Nevertheless, I shall consider them shortly.

Submission 3 is essentially a challenge to findings made by the District Judge. The District Judge found the appellant to be an unimpressive witness (para.25). However, no doubt as a result of his partner's evidence the District Judge found that the children had benefited from their father's presence and he accepted that the appellant's children would be affected by separation from him.

The evidence from Ms Neville as to the role played by the appellant in the life of the twins is contained in para.5 of her first proof of evidence. After their relationship ended, she states:

In her second proof of evidence, Ms Neville tells of the progress that A had made in the few weeks since the appellant's release and she expresses her fear that if the appellant is extradited this progress will regress.

I do not accept, as Ms Iveson impliedly suggests, that the District Judge rejected this unchallenged evidence of Ms Neville. It seems to me that it was on the basis of his acceptance of that evidence that he properly made the findings that he did as to the appellant's role in the life of the twins.

On the basis of the evidence before him the District Judge properly found that the appellant's partner's parents suffered from health problems which will make it difficult for them to assist their daughter if the appellant were to be extradited.

However, the evidence did not go so far as indicating that they would be unable to assist her. When considering the factors in favour of and against extradition, the District Judge merely observed, in relation to the grandparents, that the children will have their continued loving support (para.35).

Regrettably, the health difficulties of A's grandparents have increased since the hearing before the District Judge. Mr Rogers suggests (at para.124) that they would not be a reliable source of support. The latest evidence from Ms Neville, (third proof of evidence para.6) and the medical documentation she has produced support this conclusion.

Be that as it may, I reject the submission that the District Judge's finding in relation to Linda and Malcolm Neville's health problems did not reflect the evidence before him.

For the reasons that I have given, I do not consider that the decision of the District Judge was wrong or that extradition is disproportionate. Accordingly, this appeal is dismissed.