Lelkes v District Court in Kosice (Slovakia)

This is an extradition appeal from a judgment of the District Judge on 21 October 2019 in a case concerning extradition to Slovakia. Permission to appeal was granted by Sir Wyn Williams in this case on 24 January of this year. He said he was persuaded that the delays in this case are such that permission was appropriate given the undoubted impact extradition would have upon the appellant, his partner, and, perhaps most importantly, their children.

Mr Howey, representing the appellant in his written and oral submissions, accepts, subject to a few points to which I will come, that the District Judge made findings of fact open to the District Judge on the evidence at the hearing. He accepts that the District Judge identified the relevant factors for and against extradition and balanced them, and that there is no error of law or error of approach in the determination of the District Judge.

The legal principles are well-established and not in dispute. As always in these cases, cited on both sides to the court has been HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and in particular para.8, bearing in mind that the sole issue on this appeal is Art.8 compatibility of extradition, and s.21(A) of the 2003 Act; and then Polish Judicial Authorities v Celinski and Ors [2015] EWHC 1274 (Admin), at paras.5-23. The nature of the appeal is really encapsulated in para.26 of Love v USA and Anor [2018] EWHC 172 (Admin). In that case, Lord Burnett CJ and Ouseley J, in a joint judgment, said this:

“The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong...

The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

That passage was cited by Mr Howey in his skeleton argument and really encapsulates the thrust of his argument before me.

The context for this case is that the European Arrest Warrant (“EAW”) was issued on 2 January 2019 in the context of an 18-month unserved sentence of custody. The appellant was arrested on 23 July 2019 and since shortly thereafter has been throughout on bail. He is aged 39 and he came to the United Kingdom in 2006 aged 26. In the 13 years since then, he has been in an enduring relationship which started soon after his arrival here, and he and his partner have four children together, all born in this country, whose ages at least at the end of last year were two, five, eight and twelve. It is really their position and the position of their mother that is at the heart of the Art.8 argument as it needs to be advanced and has been advanced.

So far as the offending is concerned, there were two fraud offences, one an attempt on a bank, the second a successful fraud on a company, each relating to the fraudulent obtaining of a loan, the failed attempt in the Slovakian koruna currency comparable to around 5,000 euros and the successful act comparable to 2,500 euros. The papers explain how the offending involved a co-defendant as well and the appellant was aged 24 at the time of that offending.

There was an elaborate chronology of proceedings in Slovakia, all of which has been set out in the papers which I do not need to summarise. Nothing turns on it. But, ultimately, the custodial sentence was dated 2 February 2011. Criminal proceedings had been commenced on 19 June 2006 and a conviction after a hearing had taken place in August 2007. The following month a warrant for the appellant’s arrest was issued.

The District Judge considered carefully all the evidence and heard oral evidence at a hearing designed for the hearing of evidence and the making of findings of fact. The District Judge made a number of findings at various stages in his careful determination. He found that a previous sentence imposed in December 2004 for earlier theft had been served by the appellant between April and June 2006, at which point the appellant had been released from custody for that earlier criminal conduct. The District Judge found that the appellant then left Slovakia in June 2006. He did so knowing, because he had been told, that he had an obligation to notify any change of address, which he did not do. The appellant knew of the proceedings in relation to the fraud offences and expected that a court judgment would ensue, which he said he thought maybe would have been a suspended sentence of imprisonment.

The District Judge found that the Slovakian authorities had believed the appellant to be in either North America or Australasia, but that there had been regular and continued contact between the court and the police from June 2011 onwards; that the requesting judicial authority had only found out in December 2018 that the appellant was in the United Kingdom and had acted expeditiously thereafter. The Judge found that the appellant was and is a fugitive and found that the delay in bringing him to justice is the consequence of his own conduct, his own actions having caused it. The District Judge also made findings relating to the family circumstances to which I will return, but I mention specifically that he found that the appellant’s partner has a close extended family living in the same part of the United Kingdom as she and the children live in.

On this appeal and seeking to bring himself within the formulation I have quoted from the Love case, Mr Howey, in his written submissions and orally, emphasises a number of points. He starts by emphasising that there is some relevance in the factors, he submits, that, were these offences to have been sentenced in England and Wales, it is likely that they would have attracted a community sentence. Both advocates have assisted me in relation to the sentencing guidelines and, although they disagree on the categorisation, Mr Howey putting it as a 5B case with a starting point of a medium community service and Ms Burton a Category 4B case with a starting point of 26 weeks with the range from a medium community sentence, I am satisfied that nothing turns on that disagreement and Ms Burton very fairly accepted that, even in relation to her suggested categorisation, this, as she put it, is closer to a community sentence than to custody. It has to have in mind the circumstances such as the guilty plea, but also the previous convictions as well as the value of the attempt and the successful fraud.

The relevance of how a court in England and Wales would sentence these offences is limited. There is no disagreement as to the principles. In HH at para.132, Lord Judge describes the position in this way:

“It should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity.”

Pausing, there Ms Burton is able to submit that that observation would not therefore be applicable in this case. However, Lord Judge went on to say:

“At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a noncustodial sentence (including a suspended sentence).”

Again, Mr Howey relies on those final observations in support of a submission that there is some relevance in the scale to the question of what the sentence would likely be in this jurisdiction. In Celinksi, the issue is dealt with by the Divisional Court at para.13. In that paragraph various points are made. Firstly, that a Judge in my position will seldom have a detailed knowledge of the proceedings, background, or previous offending history such as the sentencing Judge had before him. In this case, it is emphasised that, when the sentencing came to be conducted, the appellant was already absent through his own conduct, but it is common ground that there was a court-appointed lawyer and that the relevant mitigation to which Mr Howey points - the absence of loss for the attempt, the scale of the loss, so far as the successful fraud, and the scale in relation to both offences, and the admissions that the appellant had made - would all have been well within the reach of the court-appointed advocate representing the appellant at that sentencing hearing.

Celinski goes on at para.13 to say it is not for a UK Judge to second guess the sentencing policy of another Member State’s criminal courts; that matters relevant to offending, including prevalence and significance and monetary value, are all matters for the sentencing regime of the other Member State; and the starting point, therefore, I paraphrase, is to respect what the Member State criminal authorities, through their judicial arm, have concluded is the seriousness as reflected in the sentence of the court. Celinski goes on,

“It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone both to substitute its own views.”

Paragraph 95 and 132 are then quoted. I need not take further time reading or paraphrasing from para.13, all of which I have read and considered.

Mr Howey emphasises that these offences were 15 years ago, that the appellant was much younger, 24, that they can be characterised as the folly of youth, and that the appellant could be seen to be a transformed individual. Then, really, the high watermark of the appeal so far as Art.8 is concerned: it is emphasised that, during that period of time, the appellant has established a strong and durable relationship with a partner and four blameless children, whose ages I have already given, all of whom born in the United Kingdom for whom he is the main income-earner. I was told that the partner has not been earning and that, on the evidence, I see that the appellant’s income is supplemented by State benefits. The appellant has lived openly and in a law-abiding manner with no criminality during that period of more than 13 years.

There is hardship, on the evidence, that the partner and the children will suffer. It includes financial hardship of losing the income of the appellant if extradited, but also the real human, including emotional, impact of the father being absent. As it was put in the written submissions, the impact would involve leaving the family home and the disruption of the children’s education. Having probed those matters, Mr Howey very fairly recognises that he cannot point to specific evidence in relation to the implications for having to move out of the family home and he cannot point to specific evidence in relation to whether the children would have to change schools.

Mr Howey makes further points. He submits that the Slovakian authorities are to be criticised, in two respects. They could have acted more speedily in investigating the fraud offences so that, as at June 2006 when the appellant was released from his previous custody, there was no prospect of him disappearing and avoiding justice. As Mr Howey puts it, they had an opportunity to progress matters and it is not clear why they did not. The second respect is that the, what turned out to be erroneous, belief for eight years that the appellant was in North America or Australasia. It is also said to be open to criticism, absent evidence as to why the authorities thought that, and it said that, on the evidence, at least for an unspecified period of time, the appellant had as his registered address his mother’s address until she de-registered it.

I turn to my assessment. I am not persuaded by any of the criticisms of the Slovakian authorities. In my judgment, there is no possible criticism of the District Judge for failing to find that there was there any deficient activity or lack of due diligence on the part of the Slovakian authorities either up to June 2006 or in the eight-year period. There is no evidence that I have seen to support such a criticism, nor is there a basis in the absence of explanation for supporting such a criticism. On the contrary, the District Judge made the findings, to which I have already referred, so far as where the responsibility lies is concerned and so far as the authorities acting reasonably. On the papers that I have seen, there is no basis for any alternative conclusion.

So far as having to move home or disruption of education, as I have already said, Mr Howey is not able to point to any evidence in relation to those points. They therefore are really matters, at least before me, that are matters for inference. Ms Burton, very fairly, reminded me that she was not counsel at the hearing below and therefore cannot say whether there was or was not anything beyond the witness statements that I have seen and the description of the evidence that the District Judge gives. If it mattered, I would not accept that the appellant is able, for the purposes of Art.8, to say that the impact in this case stands to be the moving of the home, and I would not accept that the appellant is able to say, on the evidence, that it stands to be the changing of school.

But, in my judgment, it does not matter in this case because, even if inferences were drawn as to the family – now looking economically to State support, and now looking from an emotional and family perspective to the support of the close extended family network, which the partner was found by the District Judge to have in the same part of the United Kingdom, even inferring that they would have to move home, and even if one or more of the children would have to move school – I am quite satisfied that those matters could not lead to the Art.8 balance being tipped in the appellant’s favour.

I stand back from the case. I ask whether the Art.8 question ought to have been decided differently because the overall evaluation was wrong, whether crucial factors should have been weighed so significantly differently to make the decision wrong so that the appeal should be allowed. I am quite satisfied that that test is not met on this appeal. The District Judge concluded that the factors in favour of extradition quite clearly outweighed, as he put it, those against extradition. In my judgment, that conclusion was correct. In his skeleton argument, Mr Howey fairly accepted that he had not been able to locate this case within the categorisation in the Celinksi case at para.21(vii), i.e. a case where a judge would reach the view that the District Judge’s view was unsupportable. His submission, though, was that the correct position was either (v) or (vi), that I should reach the view that the District Judge’s view was one about which I have doubt and on balance consider was wrong, or that the District Judge’s view was simply one that I consider was wrong. I am unable to reach either of those conclusions in relation to this case. In my judgment, this is a Category (ii) case. This was a view on the part of the District Judge which I consider was right.

The District Judge identified the factors against extradition: the 15-year passage of time; the change of circumstances from 2004 to now, including the appellant’s age; the fact and implications of him being the main income-earner for the family supplemented only by State benefits; the emotional hardship for the partner and for the children; the 13-year period of law abiding activity which the District Judge described as a “positive contribution”; and a respectable life. However, ultimately, for the District charge and for me, those and the implications that I have described for the partner and the children and for the appellant himself are outweighed, and clearly outweighed, by the factors in favour of extradition. They were identified by the District Judge:

As the District Judge concluded, the persistent and weighty public interest factors quite clearly outweigh the family and private life considerations. The extended family and State benefits will ameliorate a loss which will undoubtedly be upsetting for the partner and for the children, for whom the consequences, as the District Judge found on the evidence before him, will not be exceptionally severe. So far as the appellant was concerned, as the District Judge put it, although the appellant may have forgotten about his obligation concerning his changes of address, he clearly has not forgotten the substance of these offences. Objectively, the consequences of his actions were likely to catch up with him at some time.

The District Judge was satisfied to the requisite standard that there was no Art.8 incompatibility in the extradition in this case. I have looked with care at the two working illustrations put before me by Mr Howey, one the FK v Polish Judicial Authority [2012] UKSC 25 case from HH paras.35-43, and the other a case called Chmura v District Court of Lublin Poland [2013] EWHC 3896 (Admin). FK’s case was a case about a primary carer who was a mum who faced an accusation warrant and, supported by expert evidence, was able to say that there would be an extreme impact on the children if she were extradited in circumstances, moreover, where, on the evidence, her partner had serious mobility issues and was fragile. Chmura was a case where private life, in the context of a conviction warrant, was held to render extradition disproportionate. The Judge thought there was very considerable importance in the fact that five months had already been served in this country in the context of a custodial term of 10 months unserved in Poland, but concluded that, even if there were remaining five months to serve, extradition on the facts of that case would be disproportionate. He had in mind that the appellant in that case had been age 20 at the time of the offending, was now 28 and had settled down into a mature and law-abiding member of the community, and he emphasised that it was a case where the sole offending in Poland was the theft of £700 worth of railway track from alongside an operational railway. I have anxiously considered those cases and also the facts and evidence of this case, and it is very important that the court do so, particularly where one is considering the impact on innocent third parties. But neither of those working illustrations, both of which are clearly questions on their individual facts, cast any doubt, in my judgment, on the fact-specific analysis of the District Judge in this case which I am satisfied was not only relevantly open to the District Judge, but was the correct answer to the Art.8 issue. For all those reasons, this appeal fails and will be dismissed.