Norkowski v District Court in Bydoszcz, Poland District Court In Torun, Poland Regional Court In Slupsk, Poland

This is an appeal against an order for the Appellant’s extradition to Poland made by District Judge Inyundo on 20 September 2016. His order was made in response to three European Arrest Warrants (EAWs). EAW 1 was issued on 17 May 2015 and certified by the National Crime Agency on 7 June 2016; it alleges that the Appellant committed 6 offences of fraud and one of forgery within the time period March/April 2002. EAW 2 was issued on 22 March 2011 and certified on 8 June 2016; this warrant relates to convictions recorded against the Appellant for a number of offences of theft for which ultimately he was sentenced to a total term of imprisonment of 4 years and five months. EWA 3 was issued on 20 October 2011 and certified on 8 June 2016; the warrant alleges offences of fraud and “swindling” said to have been committed in August and September 2001.

The Appellant relies upon two grounds of appeal in respect of EAWs 1 and 3 (the accusation warrants). They are that extradition would be oppressive pursuant to section 14 Extradition Act 2003 and a disproportionate interference with the rights of the Appellant and his family pursuant to Article 8 ECHR. In respect of EAW 2 the sole ground of appeal is that extradition would be a disproportionate interference with the rights of the Appellant and his family under Article 8 ECHR.

Given the nature of the grounds of appeal it is necessary to set out the relevant history in some detail. I deal first with the proceedings in Poland as they relate to each warrant.

EAW 1 alleges the commission of 7 offences in March and April 2002. The Appellant is said to have caused a loss to the victims of approximately £23,000. The Appellant was first questioned about involvement in these offences on 29 May 2002. He denied involvement in any criminality. On 20 January 2003 the Appellant “received a bill of indictment”; on that day he was questioned by the police as an accused person. Thereafter the proceedings were stayed for what are said to be have been procedural reasons. No further step was taken until 2009 when a summons of some kind was issued against the Appellant. In that same year searches for the Appellant were undertaken in Poland. An application for an EAW was made in 2013 upon receipt of information that the Appellant had left Poland but the EAW was not issued until 20 October 2015.

EAW 2 relates to a number of convictions. On 1 March 2004 the Appellant was sentenced to a term of imprisonment of 1 year and 3 months suspended for 4 years, subject to conditions. This was an aggregate sentence in respect of two offences of fraud committed on 26 July 2001 and 22 April 2002. On 29 October 2004 the Appellant was sentenced to an aggregate term of two years imprisonment. This sentence was suspended for 5 years subject to conditions. The sentence was imposed for twenty-five offences of fraud committed between July 2001 and 29 December 2001. On 13 February 2006 the Appellant was sentenced to a term of imprisonment of 1 year and 2 months in respect of 3 offences of fraud committed in October 2001. This sentence was initially suspended for a period of 5 years subject to conditions. The Appellant was present in court on each occasion that he was sentenced to suspended terms. The total value of the loss to the victims was of the order of £70,000. On 12 June 2007 all the suspended sentences were activated on account of breach of conditions on the part of the Appellant.

EAW 3 relates to offences alleged to have been committed in August and early September 2001. The Appellant was questioned about the offences in January 2002 and was questioned in court about the offences in 13 September 2002. There was a hearing before a court on 22 January 2003. Thereafter the proceedings were suspended. They came to life again on 8 November 2006. On 5 April 2007 a domestic warrant was issued and upon receipt of information that the Appellant might be in England a version of EAW 3 was issued on 18 May 2009. These alleged offences caused a loss of approximately £9,000.

The Appellant was born on 11 September 1961. In evidence before the District Judge the Appellant asserted that he first arrived in the UK on 9 July 2006. There is no reason to doubt what he says. He has a long term partner, Beata, and two children by her who are Julia born 5 August 2007 and Natalia born 13 May 2011.

The Appellant and his family live in the North West of England. He has been in regular employment since his arrival in the UK. His partner does not work on account of a deficiency in her eye-sight. Beata has no family in the UK other than the Appellant and her daughters.

District Judge Inyundo found that the Appellant was a fugitive in respect of EAW 2 but that he was not to be so categorised in respect of the other two warrants. In the words of the District Judge he “stopped short of concluding” that the Appellant was a fugitive in respect pf EAWs 1 and 3. That said, the District Judge concluded that the Appellant was aware of the allegations which formed the bases of EWAs 1 and 3 from an early stage and he was questioned about them. The appeal before me proceeded on the basis that those findings are unimpeachable. For the avoidance of any doubt, I am satisfied that the findings of fact made by the District Judge in relation to these matters were obviously open to him.

I turn next to the issue of delay. In respect of EAWs 1 and 3 there are very substantial periods of unexplained delay. In respect of EAW 1 there is no explanation for the period of delay between January 2003 when the Appellant was served with a “bill of indictment” and 2009 when some kind of summons was issued against him. There is no explanation for the delay between 2009 and the issue of the EAW in October 2015. There is more information about the course of events in relation to EAW 3. A conscious decision was taken to suspend the proceedings in or about January 2003 and it is to be presumed that the decision was taken for a proper reason. The decision to resume the proceedings was taken in November 2006 and a domestic warrant was issued against the Appellant in April 2007. The information about what transpired thereafter is somewhat sketchy, to say the least. I appreciate that the Appellant left Poland in 2006 without notifying the Polish authorities of his whereabouts but there is no substantial evidence that that reasonable attempts were made to locate the Appellant between his taking up residence in the UK and the issue of the warrants.

There is also a long delay between the activation of the various suspended sentences on 12 June 2007 and the issue of EAW 2. However, given the finding that the Appellant was a fugitive during this period the significance of the delay is diminished - see below.

District Judge Inyundo considered the request for extradition in respect of each of the three EAWs quite separately. Mr Smith makes no complaint about that approach. Indeed, for reasons to which I will return, he submits that this was the correct approach. However, he asks me to conclude that the District Judge was wrong to find that the Appellant’s extradition on EAW 1 and EAW 3 was not barred by the passage of time since it would not be oppressive or unjust and he was wrong to conclude in respect of all three warrants that that extradition would not be a disproportionate interference with the Article 8 rights of the Appellant and his family.

Section 14 of the Extradition Act 2003 and its predecessor sections have been considered in a large number of decisions of this court. They all apply principles to be found in the leading cases of Kakis v Government of Cyprus [1978] 1WLR 779, La Torre v Government of Italy[2007]EWHC 1370 and Gomes and Goodyer v Trinidad and Tobago [2009]1 WLR 21. It is “unjust” to direct extradition if in the particular circumstances of a given case the passage of time has the consequence that there would be significant prejudice to the requested person if he were to be tried in the requesting state. Extradition is “oppressive” if the passage of time has resulted in such a change in the requested person’s circumstances that the extradition would cause significant hardship.

There is no suggestion (nor could there be) that the District Judge did not address the proper issues when considering the Appellant’s challenge under section 14. He had well in mind the relevant principles as is obvious from his judgment. Reduced to its essentials the argument for the Appellant is that the District Judge simply reached the wrong conclusion because “he failed to give appropriate weight to (a) the period of the delay; (b) the ability of the Appellant to present a defence to the allegations; (c) the change in circumstances of the Appellant; and (d) the culpable delay on the part of the requesting state” – see paragraph 36 of Mr. Smith’s skeleton argument.

It is now well established that the weight to be attached to the various competing factors at play in a contested extradition is very much a matter for the original decision maker. An appellate court will usually be slow to interfere, particularly when the weight attached to such factors is inextricably bound up with findings of fact made by the decision maker after hearing oral evidence.

In the instant case the District Judge heard evidence form the Appellant (tested by cross-examination) about the alleged difficulties in presenting his defence. Further he heard oral evidence about the Appellant’s circumstances as they have evolved over time since his offending and alleged offending in 2001/2002. The District Judge understood fully that the Appellant’s defence to the alleged offences set out in EAWs 1 and 3 was that he had acted under duress i.e. he had been coerced into acts of fraud by a man called Szreiber. He concluded that the Appellant would be able to mount that defence at his trial without undue difficulty. That was a conclusion which was clearly open to him. The District Judge acknowledged that the extradition of the Appellant would cause hardship to the family unit. He concluded, having reviewed the evidence that the sort of hardship which would be endured was very similar to that which is often occasioned by families when the bread winner and father is extradited. I am not persuaded that this conclusion was in any way erroneous.

The District Judge considered the period of delay and the reasons for it at various points in his judgment. He concluded that the offences set out in each EAW “date back a significant time” (paragraph 81). He was not persuaded that the delay which had occurred meant that extradition would be unjust or oppressive. He was correct to conclude, at least in the context of this case, that the “delay in itself” did not render extradition unjust or oppressive – see paragraph 91.

I acknowledge that there are very significant delays in this case in respect of EAWs 1 and 3. However, I am not persuaded that the conclusion of the District Judge that the delays would not render extradition unjust or oppressive was wrong. All the relevant factors were considered. The conclusion of the District Judge was well within the range of reasonable decisions which were open to him.

I turn to the Appellant’s contention that extradition would constitute a disproportionate interference with the rights of the Appellant and his family under Article 8 ECHR. That contention is to be judged in accordance with a trilogy of cases, namely Norris v Government of the United States of America (No.2) [2010]UKSC 9, HH V Deputy Prosecutor of the Italian Republic, Genoa [2012]UKSC 25 and Celinski and others v Polish Judicial Authorities [2015] EWHC 1274 (Admin). No useful purpose would be served by citation from these authorities. The principles and guidancelaid down in the cases are extremely well known to everyone concerned with this area of law and the principles and guidance which are particularly relevant to this case are referred to sufficiently in the skeleton arguments of the parties.

Mr Smith submits that the District Judge fell into error in a number of respects when making his assessment of the impact of extradition upon the family life of the Appellant, his partner and children. First and foremost, however, Mr Smith submits that the District Judge did not treat the interests of the children as a primary consideration.

The Judge began his assessment of the impact upon family life at paragraph 96 of his judgment. In that paragraph he identified the trilogy of cases identified at paragraph 19 above and stated that HH was of importance “in the context of the interests of children” (his emphasis). At paragraph 91 he identified in terms that the interests of the Appellant’s children were “a primary consideration for the court.” I simply do not see how it would be open to me to find that that the District Judge failed to treat the interests of the Appellant’s children as a primary consideration in the face of these passages. The reality is that the nub of Mr Smith’s complaint is not that the District Judge misunderstood or misapplied the law but rather that the weight which the District Judge gave to factors supporting extradition was too great and the weight which he attached to those factors favouring discharge was too little.

The sentiments which I expressed at paragraph 15 above are equally applicable in relation to Mr Smith’s complaints about the assessment undertaken by the District Judge in relation to the impact of extradition upon the Appellant and his family. I have reviewed the exercise which the District Judge undertook in accordance with the guidance in Celinski and I can find no justifiable basis for interfering with his conclusions. In my judgment the District Judge was correct to conclude that the Appellant’s offending (proved and alleged) was serious, that his fugitive status in respect of EAW2 was an important factor in assessing the impact of the delay in issuing that warrant, that there was always a very significant public interest in honouring extradition obligations and that the undoubted impact upon the Appellant’s partner and his children which would be caused by extradition and which was exacerbated by the length of time which has elapsed between the offending (proved and alleged) did not reach the degree of severity which the Supreme Court in Norris and HH suggest is necessary in order to justify a conclusion that extradition would be a disproportionate interference with rights under Article 8 ECHR.

As I have said, the District Judge considered whether extradition should be ordered in respect of each EAW quite separately. During the course of argument before me, however, there was a considerable debate about whether it would have been open to the District Judge to conclude that extradition was justified in respect of one warrant and then treat the order for extradition in relation to that warrant as being a factor to be taken into account (in favour of extradition) when considering the other warrants. In particular, Ms Bostock, for the Respondents, submits that it would have been open to the District Judge to have considered the request under EAW 2 first. Had he done so, she submits, he would, without doubt, have concluded that extradition of the Appellant to serve his sentence of 4 years and five months was justified. That, she submits, would then have been a relevant consideration when considering whether it was oppressive to extradite the Appellant in relation to the other two warrants and when considering whether extradition on those warrants was a disproportionate interference with Article 8 rights. She supports that submission with recent authority – the decision of Cranston J in Zengotav The Circuit Court of Zielona Gora, Poland and others [2017] EWHC 191(Admin).

I have no doubt that the decision in Zengota does support the general thrust of Ms Bostock’s submission. However, upon reflection this issue does not fall for consideration in this appeal. The plain fact is that upon a proper interpretation of the judgment of District Judge Inyundo he did not approach the case in this way. As I have said, the District Judge dealt with each warrant separately and upon its own merits and without reference to the possible or actual effect of extradition in respect of EAW 2 upon the justification for extradition in respect of EAWs 1 and 3.

In the light of my conclusions as set out above this appeal must be dismissed.