Chodorek v District Court of Kielce, Poland

This is an appeal against an order for the appellant’s extradition to Poland made by District Judge Baraitser on 29 June 2016. The order of the District Judge requires the appellant to be returned to Poland to serve 6 months and 27 days imprisonment which is the outstanding balance of a sentence of 1 year and 3 months imprisonment imposed on 28 November 2000. It is common ground that the appellant was conditionally released from his sentence on 20 December 2001. On 27 June 2003 a decision was taken that the appellant should serve the remainder of his sentence; this was because he had committed a further offence following his release on 20 December 2001.

The hearing before the District Judge was uncontested. It seems clear that the duty solicitor who represented the appellant before the District Judge failed to take points which were properly arguable on behalf of the appellant and which, if made out, would have been a bar to his extradition. Fortunately for the appellant, he obtained appropriate legal advice in time to issue a notice of appeal to this court. Permission to appeal was granted by Ouseley J. I am satisfied that permission was granted in respect of both grounds which are set out in the grounds of appeal. For the avoidance of any doubt, however, I make it clear that I consider both grounds of appeal to be properly arguable so that if Ouseley J intended to confine the permission which he granted to ground 2, as the Respondent was disposed to argue at least in the skeleton argument of Ms Townshend, I would grant permission in respect of the first ground.

Ms Pottle for the appellant and Ms Townshend agree that although this appeal can succeed only if I conclude that the decision of the District Judge was wrong, I must assess the grounds of appeal as if I was the primary decision maker. So much is obvious since the grounds were not advanced before the District Judge.

The appellant raises two bars to his extradition. First, it is submitted on his behalf that the offences committed in Poland, as described in the European Arrest Warrant (“EAW”) and further explained by additional information provided by the respondent, are not “extradition offences”. If that is correct, the appellant must be discharged under section 10 of the Extradition Act 2003 (“the 2003 Act”). Second, it is submitted that the appellant’s extradition would be a disproportionate infringement of the rights of the appellant and his family pursuant to Article 8 of the European Convention on Human Rights (ECHR). I deal with each potential bar to extradition in turn.

An offence committed in a Category 1 territory such as Poland will be an extradition offence if it satisfies the provisions of section 65 of the 2003 Act. In this case the crucial issue is whether the conduct of the appellant in Poland “would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom” (see section 65(3) of the 2003 Act). It is for the respondent to prove to the criminal standard that the conduct set out in the EAW as amplified by the further information provided by the respondent constitutes an extradition offence.

The conduct in question is set out in Part E of the EAW in the following terms:-

“1.

This warrant relates in total to 25 offences which are within the sequence of offences defined in Article 91 [1] of the Criminal Code

2.

The circumstances of committing the offence(s)

In the period from 23April 1999 to 15 July 1999 in [a specified place], acting in a similar way, at short periods of time, in order to achieve the benefits of property by deception as to the amount of funds deposited in his bank account no… and money withdrawal with the ATM card, bank…to the unbeneficial management of property at the amount of PLN for 4700 as follows.”

The EAW then continues by specifying 25 separate occasions between 23 April 1999 and 15 July 1999 when the appellant withdrew money from an ATM using his card. The amounts withdrawn were of varying sums ranging from, at the lowest, PLN 20 at the highest PLN 500.

Following the hearing before the District Judge but after the appellant had issued a Notice of Appeal, further information was sought from the respondent about the nature of the appellant’s offence. The request for information was not in the appeal bundle but Ms Townshend provided me with a copy shortly after the hearing had concluded. The respondent was asked to specify what “was the deception in the offence”, how the offence was committed, “who did the money belong to” and whether the money was in the appellant’s bank account. The appellant was also asked to provide more details of “exactly what [he] did to commit the offence”.

It is necessary to set out, in full, the respondent’s response.

“In response to a letter of British authorities sent in with a cover letter of 27 July 2016, please be advised that [the appellant] had an account with a bank. The bank gave him an ATM card with an overdraft facility. He was authorised to overdraw his account, but a debit could not be higher than monthly payments into the account in a period of 3 months before a withdrawal. In the period before the commission of an offence, the defendant’s account was credited with amounts of his pay in the range of PLN 799.78 to PLN 1106.49. On 23 April 1999 [the appellant’s] account was overdrawn by PLN 810.37. On 22 May 1999 [the appellant] was called on to pay off his overdraft. Then the account was credited with his pay, and yet he withdrew an amount higher than his pay. On 10 June 1999 [the appellant] was called on to pay off an amount of PLN 1101.87, his overdraft rose. He did not make any payments to pay off his debt. On 26 August 1999 his overdraft rose to PLN 4453.83. On 12 August 1999 the bank cancelled his ATM card. [The appellant] made 2 payments to settle his debt; in total he paid an amount of PLN 800. Being aware of his debt that he failed to pay off, [the appellant] made successive withdrawals, thus creating a higher debt that was an actual loss on the part of the bank. To date, he has not paid off the amount owed by him to the bank. [The appellant] was aware that he was unable to pay off his debt, even though he deliberately and premeditatedly made successive withdrawals from an ATM, whilst obtaining financial gain and acting to the detriment of the bank. There were no sufficient funds on [the appellant’s] account to cover the withdrawals he made. Successive withdrawals resulted in an overdraft which [the appellant] had no intention to pay off. By the same token he defrauded the bank, gaining a certain amount of money by false pretences.”

Ms Townshend submits that the conduct set out above amounts to the offence of theft in this jurisdiction. At the material time, i.e. in 1999 a person was guilty of theft if he dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it. (The offence of theft is defined in identical terms at the present time). Ms Townshend submits that I can properly infer from the information provided by the respondent that the appellant acted dishonestly and with the intention of permanently depriving the bank of its money. She also submits that the money “belonged” to the bank at the time it was appropriated by the appellant.

In support of her submission that the appellant’s conduct amounted to the offence of theft Ms Townshend relies particularly upon the decision of Roderick Evans J in Dansk Regional Court v Ulatowski [2010] EWHC 2673 (Admin). In that case Mr Ulatowski and his wife had opened a bank account in Poland and the bank and they had agreed overdraft facilities in respect of the account. As in the instant case, Mr Ulatowski used a debit card issued to him by the bank in respect of the account in order to obtain money from ATMs with the consequence that the agreed overdraft limit was exceeded. He was charged with and convicted of offences contrary to Article 278 (1) of the Polish Penal Code and sentenced totalling 3 years and 6 months imprisonment.

Roderick Evans J accepted the submission on behalf of the Polish authorities that the conducted complained of constituted the offence theft in England and Wales. He found that dishonesty and an intention permanently to deprive was properly to be inferred from the information set out in the EAWs in that case; further, he held that Mr Ulatowski had appropriated property belonging to another.

Ms Townshend submits that for all practical purposes the factual circumstances in Ulatowski are identical to the circumstances in the instant case and that I should follow both the reasoning and decision of Roderick Evans J.

Ms Pottle contends that I should not follow the decision in Ulatowski nor should I follow its reasoning. She submits that the decision of Robert Goff J (as he then was) in Barclays Bank Limited v WJ Simms Son & Cooke (Southern) Limited [1980] 1 QB 677 completely undermines the reasoning of Roderick Evans J. This decision was, apparently, not cited in Ulatowski; Ms Pottle submits that had Roderick Evans J been aware of it he would have decided Ulatowski differently.

The Barclays Bank case was not concerned with the definition of theft in any way. However, it is of relevance to the instant case, submits Ms Pottle, because of the detailed analysis undertaken by Robert Goff J of the legal relationship between a bank and its customer when a customer presents a cheque for payment. The relevant part of the judgment is in the following terms:-

“It is a basic obligation owed by a bank to it’s customer that it will honour on presentation cheques drawn by a customer on the bank, provided that there are sufficient funds in the customers account to meet the cheque, or the bank has agreed to provide the customer with overdraft facilities sufficient to meet the cheque. Where the bank honours such a cheque, it acts within its mandate, with the result that the bank is entitled to debit the customer’s account with the amount of the cheque, and further that the bank’s payment is effective to discharge the obligation of the customer to the payee on the cheque, because the bank has paid the cheque with the authority of the customer.

In other circumstances, the bank is under no obligation to honour its customer’s cheques. If however a customer draws a cheque on the bank without funds in his account or agreed overdraft facilities sufficient to meet it, the cheque on presentation constitutes a request to the bank to provide overdraft facilities sufficient to meet the cheque. The bank has an option whether or not to comply with that request. If it declines to do so, it acts entirely within its rights and no legal consequences follow between the bank and the customer. If however the bank pays the cheque, it accepts the request and the payment has the same legal consequence as if the payment had been made pursuant to previously agreed overdraft facilities; the payment is made within the bank’s mandate, and in particular the bank is entitled to debit the customer’s account, and the bank’s payment discharges the customer’s obligation to the payee of the cheque.”

Ms Pottle submits that this same analysis is applicable when a customer uses a debit card to withdraw cash from an ATM. If, at the time the debit card is inserted into the machine, there are insufficient funds in the customer’s account to meet the request or if there are no agreed overdraft facilities sufficient to meet it, then insertion of the debit card into the machine constitutes a request to the bank to provide overdraft facilities sufficient to meet the request. In accordance with the principles laid down in the Barclays Bank case the bank has an option as to whether or not to comply with that request. However, if the bank chooses to comply with the request and provide the cash the customer has not dishonestly appropriated property belong to the bank and, accordingly he cannot be guilty of the offence of theft.

Roderick Evans J made no express reference to the Barclays Bank case during the course of his judgment in Ulatowski. Accordingly, it is very unlikely that the case was cited to him. However, I make this rather guarded observation because at paragraph 33 of his judgment the learned judge recited an argument by counsel for Mr Ulatowski which appears to have been derived from the principles formulated by Robert Goff J as set out above. Counsel is recorded as submitting that at the point in time when Mr Ulatowski obtained the cash from the machine, i.e. when the machine dispensed the cash, it was not “property belonging to another”. This was because although there had been no obligation upon the bank to provide the cash, the bank having done so it must be taken to have agreed to provide overdraft facilities to cover the withdrawal. By the time the money had been dispensed to Mr Ulatowski, submitted counsel, “it was his own cash”.

Roderick Evans J declined to accept these submissions (see paragraph 35). He appears to have concluded that the cash had never become the property of Mr Ulatowski and that at the time of “appropriation” the cash was still the property of the bank. To repeat, however, it seems that counsel did not draw the decision in Barclays Bank specifically to the attention of the judge.

In Adamczewski v District Court in Jelenia Gora, Poland (2014) EWAC 2958 Cranston J had to consider whether the conduct of Mr Adamczewski constituted the offence of theft in England and Wales. The conduct was described in the EAW as follows:-

“In the period between 15 January 2002 and 24 January 2002 ..... [A] acting intentionally in continuity of action and in order to obtain financial profit he caused the bank .....to misapply its property in the amount of 9057.12 zl as having possessed personal savings account number....in the said bank he used to take out money by the card Visa Electron and used to pay for goods, however he had not possessed any financial means on the said account. He acted to the detriment of... [the bank] and he committed the above mentioned offence..."

Cranston J decided that he could not be satisfied to the criminal standard of proof that the conduct described in the EAW was such that it was appropriate to infer dishonesty on the part of Mr Adamczewski. Accordingly, he could not be satisfied that the conduct of the requested person constituted theft. During the course of his judgment, however, Cranston J made specific reference to the Barclays Bank case describing the principles set out at paragraph 14 above as "a basic feature of our law". That said, in the very next paragraph, he went on to conclude that "it is possible in some cases for a person to be charged with theft where they make a payment by writing a cheque or presenting a credit or debit card knowing they are not in funds". Further, he found that the conduct with which he was concerned "did not parallel that described in...Ulatowski". There is nothing in the judgment of Cranston J which suggests that he was casting any doubt upon the analysis of Roderick Evans J notwithstanding his express reference to the principles formulated by Robert Goff J in Barclays Bank.

In accordance with the doctrine of precedent which governs me I must follow the decision of Roderick Evans J unless I am satisfied that it is clearly wrong. That would be a very bold view to take given that the decision was not doubted in a subsequent decision (Adamczewski) particularly given that both Ulatowski and the Barclays Bank case were considered by Crasnton J. Having reviewed the relevant authorities I am not persuaded that a person who presents a debit card to an ATM when he knows that he has no funds within his account to meet his request nor an agreed overdraft facility which would cover a request can never be guilty of theft which must be the logical conclusion of Ms Pottle’s position. The Barclays Bank case has never been considered as binding authority for that bald proposition previously and the judgment of Cranston J in Adamczewski appears to proceed on the basis that there is no conflict between Ulatowski on the one hand and the Barclays Bank case on the other and that there may be circumstances in which a person who withdraws cash from an ATM knowing that to do so would exceed his overdraft limit may be guilty of theft.

I turn, therefore, to an examination of the conduct in this case. Ms Townshend accepts there is a good deal of imprecision in the description of the conduct set out in the EAW and the further information provided by the respondent. The nature of the further information, in particular, is very imprecise given the specific questions which the respondent was asked to answer. Self-evidently, however, the appellant used his debit card quite deliberately on the specified occasions to obtain cash from the bank at a time when the terms of his agreement with the bank did not permit such withdrawals. Further, I am satisfied that it is proper for me to infer that he knew that on each of those occasions he was obtaining cash in breach of the terms of his overdraft agreement. Is that, of itself, a sufficient basis for me to infer that the appellant was dishonest? The EAW alleges that the appellant engaged in "deception as to the amount of funds deposited in his bank account". However, no further particulars of that allegation is provided and it may mean no more than that the appellant simply inserted his card into the machine at a time when he knew that the withdrawal of cash would be in breach of the terms of the agreement with the bank.

I appreciate that there came a point in May 1999 when the bank requested payment of the debt then existing, that the debt was not then repaid and the appellant continued to make withdrawals of cash. Certainly it would be easier to infer dishonesty from that date.

I confess that on the basis of the description of the conduct contained in the EAW as supplemented by the further information I am left with nagging uncertainties about whether, inevitably, the appellant was acting dishonestly. That may be a conclusion which is very generous to the appellant. However, that is my view. I make it clear that the respondent’s failure to provide detailed answers to the requests for further information has influenced my conclusion to a significant degree.

I turn to the second ground of appeal. 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. The principles and guidance laid down in those cases are extremely well known to everyone who practises in this area of law and, in any event, the principles and guidance which are particularly relevant to this case are referred to sufficiently in the skeleton arguments of the parties.

The relevant facts and chronology are as follows. The appellant was born on 2 Jan 1971. He has been married to his wife Joanna for approximately 26 years. They have an adult daughter and grandchildren all of whom live in the United Kingdom. The appellant arrived in the United Kingdom on 20 June 2003. The appellant and his wife have lived together in the United Kingdom since 2004. For some years their daughter lived with them although she now lives with her own family. The appellant has worked more or less continuously since his arrival in the United Kingdom and he has committed no criminal offences.

On 27 June 2003 a decision was made that the appellant should serve the balance of his sentence. This was because he had committed another offence. The decision that he should serve his sentence became binding on 23 July 2003 and an order was issued that the appellant should appear at prison on 22 September 2003. On 22^nd December 2003 a domestic arrest warrant was issued. It appears that the respondent became aware that the appellant was in the United Kingdom on or about 14 November 2012. The EAW was issued on 18 Dec 2014. It was certified by the National Crime Agency on 8 June 2015 and the appellant was arrested on 28 June 2016.

It is accepted that the appellant is a fugitive from justice. On the basis of the information provided by the respondent I conclude that the appellant left Poland in June 2003 to avoid serving the remainder of his sentence. Given the chronology set out above such an inference, in my judgement, is irresistible.

The appellant’s wife is registered as an alcoholic. The appellant maintains that his wife's problems began when he was serving his sentence of imprisonment in Poland in 2001. At paragraph 40 of her Skeleton Argument Ms Pottle has set out the salient entries from Mrs Chodorek’s medical notes as to her problems with alcohol. I have a letter from Dr Martin Abbas who is Mrs Chodorek’s General Practitioner which records that she has a history of alcohol addiction causing epileptic fits during episodes of withdrawal. The doctor provides the opinion that it would be detrimental both "physically and emotionally" if the appellant was not present to support her.

It is now well established that there is a "constant and weighty interest" in convicted persons being extradited to serve their sentences. The United Kingdom should honour its treaty obligations and ensure that it does not become a safe haven to which convicted persons can flee. In this case the appellant is a fugitive. These factors, taken together, provide powerful reasons why extradition should be ordered in this case.

As Ms Pottle points out, however, there are features of this case which strongly militate against extradition. First and foremost is the state of health of Mrs Chodorek. I have no reason to doubt that she is addicted to alcohol and that separation from her husband is likely to cause a very significant deterioration in her condition. While I do not have an independent expert’s report to that effect it seems to me that the medical evidence form the medical notes and her GP supports that conclusion - as was anticipated by Ouseley J when he granted permission to appeal. The appellant has served substantially more than half of his sentence. The balance to be served, although a number of months, is a short term. Whilst it might be said that this diminishes the likely impact upon the health of Mrs Chodorek, I do not believe that is the case. Upon the available evidence the fact of separation is likely to be the trigger for alcohol consumption. There will then, inevitably, be a downward spiral. In my judgment the fact that the length of time to be served is short is a powerful factor against extradition. The appellant has, belatedly, paid his debt to the bank. It is true that this happened many years after the debt was incurred and the appellant had been ordered to serve the balance of his sentence but, nonetheless, it is a factor to weigh in the balance.

There has been very significant delay in this case. I appreciate that the appellant must bear substantial responsibility for the delay by reason of his fugitive status. However, the respondent has provided no evidence of any kind to suggest that any meaningful enquiries were made as to the appellant’s whereabouts over many years. Even after it became known that he was living in the United Kingdom (in 2012) 4 years, or thereabouts, went by before his arrest. In 2013 the appellant was in contact with the Polish authorities in the sense that he instructed a lawyer in Poland to require as to his status. Even allowing for the appellant’s fugitive status it is difficult to understand how approximately 13 years could elapse between the order that the appellant should serve the balance of his sentence and his arrest under the EAW. In my judgment the respondent must bear some of the responsibility for the delay which has occurred in this case which, in turn, impacts upon the "constant and weighty public interest" in extraditing the appellant.

I recognise that the circumstances in which it will be appropriate to conclude that the Article 8 rights of an appellant and his family should render disproportionate the extradition of a fugitive to serve the balance of a sentence of imprisonment will be comparatively rare. However, having considered all the relevant factors in this case I have reached the conclusion, just, that extradition in this case would be a disproportionate interference with the Article 8 Rights of the appellant and his family. In reaching that conclusion I have attached considerable weight to the likely impact of extradition upon the health and wellbeing of the appellant’s wife. The reality is that should the appellant be extradited his wife will be left with very little support and the likelihood is that she will suffer significant ill health on account of her addiction.

Accordingly, this appeal is allowed and the appellant is discharged.