The Queen on the Application of Filipek-Kwasny v Polish Judicial Authority  EWHC 25 (Admin)
Case No: CO/10396/2010
High Court of Justice Queen's Bench Division Administrative Court
19 January 2012
Before: Mr Justice Ouseley
Hearing dates: 18th November 2011
Mr Edward Fitzgerald, QC and Mr Ben Cooper (instructed by G T Stewart Solicitors) for the Appellant.
Mr Toby Cadman (instructed by Crown Prosecution Service ) for the Defendant.
Mr Justice Ouseley:
1 This is an appeal by Mrs Filipek-Kwasny, a Polish national aged 43, from the decision of Senior District Judge Riddle. On 28 September 2010, he upheld the application by the Judicial Authority in Poland for her extradition to on two accusation EAWs relating to offences of fraud and theft. She appeals on the ground that it ought to have appeared to him that it would be oppressive to extradite her, by reason of the passage of time since the commission of the offences alleged against her; and he ought not to have found that she was a fugitive from justice, so as to prevent that bar under s14 Extradition Act 2003 operating in her favour. She also appeals on the ground that he ought to have found that her extradition would breach the rights of her and her family under Article 8 ECHR .
2 EAW1, certified on 14 April 2008, concerns three offences of fraud. The first in time was allegedly committed between late 1997 and early 1999, so probably in 1998: falsifying a customs document to evade duties on an imported car; no value is given. The second in time was a group of six alleged frauds committed between May and June 2000: defrauding six individuals over money to settle their bank debts; the loss totalled some £1160, varying between £29 and £255 per individual. The third was an alleged fraud involving £33 from an individual. The domestic warrants for these offences were issued in January and April 2003.
3 EAW2, certified on 2 September 2008, concerned a single offence of theft, allegedly committed in the summer of 2001 with her husband, whose extradition is nonetheless not sought. Over a couple of months, they allegedly stole clothing entrusted to her and worth about £4300, from a workplace for the disabled. The domestic warrant for this offence was issued in March 2004. The total value of the dishonesty, excluding the unknown customs duty, is thus some £5530.
4 The Appellant came to the UK on 29 June 2002, with her husband and their three children, then aged 11, 7 and 4. The children were aged 6, 2 and about 1 when the first offence was alleged to have been committed, taking that as 1997. Since they came to the UK, she has had two more children. Her children are now aged 20, 16,12,7 and just 3.
5 There are no criminal convictions recorded against the Appellant since her arrival in the UK.
6 The District Judge heard evidence from the Appellant herself on the passage of time, and what she was aware of in relation to proceedings against her for these offences at the time she left Poland. She said that she had no knowledge of them or of being required to attend court at any stage in connection with them. She denied any obligation to inform the authorities if she left Poland, because she said there were no outstanding cases.
7 He set out the Respondent's evidence. The Appellant had had a number of criminal proceedings against her for other offences before she left Poland on 29 June 2002. She was convicted of an offence in 1999, she did not appeal and received a suspended sentence of 18 months, with five years on probation, a requirement to make redress, and to commit no other intentional crime. But she did not comply with the requirements, and she was ordered in her absence in 2003 to serve the term of imprisonment. She was convicted of another offence in October 2001: she appealed unsuccessfully; she was present, represented at both hearings; she was sentenced to 18 months imprisonment, which “was validated” on 28 March 2002. It is not clear whether this sentence was suspended. Her extradition is not sought on those matters.
8 A letter from the Circuit Court in Gliwice dated 25 June 2010 says:
“It should be also emphasized that Aneta Filipek-Kwasny was instructed about her rights and duties several times, among others about her duty to appear every time when summoned by the Court or the Public Prosecutor's Office and about her duty to inform the jurisdiction authority about changing the place of stay or residence ( art.75 §1 of the Code of Criminal , art 138 and 139 §1 of the code of Criminal Procedure ), and about the necessity of fulfilment of obligations imposed on her in judgments, however, the fugitive did not fulfil these obligations.”
9 The letter continued that there had been no judgment against her, in relation to what it was agreed must be EAW2, as she did not appear at court despite the fact she was instructed about such a duty by the District Public Prosecutor in Raciborz on 10 June 2002, when the Appellant “personally became familiar with the files.” As the District Judge pointed out, if that letter is accepted as correct, she left 19 days after that warning was given, 3 months after appealing unsuccessfully in respect of another matter when a suspended sentence was validated, and 5 months after a court appearance on other matters.
10 The District Judge concluded:
“I have had difficulty matching all the offences in the warrants with the information above. Some of that information apparently relates to cases not before me. Nevertheless, and at the very least, the requesting authority is stating clearly that the defendant failed to attend court on EAW [2 – as it is agreed he meant] despite being instructed to do so. It will be seen from the summary of evidence given by the defendant that she disputes she was a fugitive. She says, clearly enough, that the Polish authorities are not telling the truth. She accepts that as far as one of the matters is concerned she had been proceeded against, but thought it was over. For the other set of proceedings she categorically denies any knowledge of them. I found Mrs Kwarmy [Kwansky] to be an unreliable witness. For example I was doubtful about the evidence that she was told about article 8 of the Geneva Convention (see p1). Overall her evidence was unconvincing in content and manner. Faced with the clear statement from Poland that she is a fugitive, the fact that on her own account she left Poland within days of being required (on the Polish account) to attend court I have no hesitation or doubt in saying that she is a fugitive from Poland. She fled in June 2002 to avoid prosecution. She is not entitled to rely on this bar.”
11 He then made this point, relevant to both oppression and the passage of time, and to Article 8 :
“In the last eight years she, and more importantly her children, have built a life here. The children are in education. It will be seen later that throughout the relevant period this defendant has had young children. At any time during the last eight years extradition would have impacted, probably seriously, on a small child. From that point of view the position with a return to Poland is no more oppressive now than it would have been at any time since her arrival in the United Kingdom. In other words the passage of time has not significantly increased overall the hardship that this family would suffer if she were returned.”
12 Dr Ruth Armstrong, a clinical psychologist, provided a report on the family for the hearing before the District Judge, and without objection, an updated report for the appeal. They were settled in the UK and now had no real links to Poland. The children were doing well; the mother, who spoke little English, was at the heart of a self-sufficient family; the father worked long hours to provide for them. Extradition would rupture the attachment the children had for their mother. The younger two would be “likely to be devastated” by the loss of their mother. There had been distress when she had been absent for two nights when arrested in March 2010. “A more prolonged loss of their mother would be very likely to have severe detrimental consequences psychologically and for their developmental trajectories”.
13 The father could cope with practical matters but would probably struggle to meet the children's emotional needs and especially those of the younger ones. He had certain limitations emotionally, apparently. Dr Armstrong was of the view that this potential emotional fragility could prevent him even fulfilling practical functions and lead to his becoming actively suicidal; he would have to give up his job to care for the children, and the loss of his job and wife could lead to “severe and crippling depression”. The potential psychological damage to the five children and to the husband from the mother's extradition would be “extreme”.
14 This could not be ameliorated by the family returning to Poland in view of the disruption which that would cause to the family home and the children's education, including the university aspirations of the eldest.
15 The District Judge commented, with some justification, that he wondered whether he needed an expert report to tell him that a family with young children may well be devastated if the mother is removed for whatever reason. He accepted the Respondent's submission that it revealed nothing which went beyond that inherent in the removal of a parent in extradition proceedings.
16 Dr Armstrong's updated report said that the family as a whole continued to function well, albeit that uncertainty over the Appellant's future was causing some strains. Her husband had left his job, and was more physically incapacitated than before with a marked deterioration in his mobility. He may have become more fragile psychologically. If the mother were extradited, he would be relying more on his two older sons: the oldest would be at university but, I was told, living at home; the next oldest would be studying at home for his A levels. The loss of the Appellant's emotional support for the younger children would be a significant challenge. The family would resist any attempt that they be taken into care. There was little prospect of any assistance for the family, welcome though that would be.
The legal framework
17 There was little dispute about the legal principles in relation to oppression and s14 of the Act. The appeal was grounded on the oppression limb of that section. It was for the Respondent to show, on the criminal burden of proof, that the Appellant was disentitled to rely on the bar by reason of any passage of time for which she was responsible.
18 There was no particular threshold event, knowledge of which turned departure from the requesting state into a flight from justice. Whether the departure was in circumstances which prevented reliance on s14 was a matter of fact in the circumstances of the case. There is a broad test: in Kakis v Government of the Republic of Cyprus  1 WLR 779 , Lord Diplock said at p783B-C:
“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.
As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude. ”
19 What Lord Diplock said has been considered in a number of case; I was referred to The Government of the United States of America v Tollman and Tollman  EWHC 184 (Admin) , in which Moses LJ, with whom I agreed, said at paragraphs 53 and 58:
“Mr Tollman did not flee the United States. He had indeed left the United States lawfully. If Lord Diplock words are read as a statute, he is not, accordingly, barred from relying upon s82. But Lord Diplock's dictum has no statutory force. It is instructive to consider the rationale lying behind his conclusion that an accused who flees the country cannot rely upon delay. The reason is that, generally, there can be no injustice in requiring the accused to be extradited where delay is caused by his escape. The very fact that the accused invokes justice to prevent his extradition requires consideration of the circumstance which have led to the fact that he is not facing justice in the country from which he has fled. Mr Tollman is not barred by Lord Dioplock's dictum. But the circumstances in which he has not hitherto faced justice in the United States and been tried along with his alleged co-conspirators in 2003–2004 require consideration before any conclusion is reached as to whether it is unjust to extradite him. In short, he cannot simply avoid consideration of those circumstances by virtue of his success in evading the bar expressed by Lord Diplock.
It is reasonable to infer that at the time he last left the United States he was well aware of the stage the investigation had reached and the likelihood, to put it no higher, of an indictment being preferred and of the arraignment. His silence as to his anticipation of an indictment and an arraignment is eloquent. He did not flee. He was entitled to leave the United States. But the fact that he did not return to face the indictment with his co-accused is in our judgment a significant factor in assessing the justice of requiring him to return now. This case is quite unlike those cases in which, without any advance notice, an accused hears of the accusation whilst he is lawfully present in another country and faces an accusation many years later which he had no cause previously to fear. ”
20 The importance of Lord Diplock's speech, as cited above, was re-affirmed in Gomes and Goodyear v Government of Trinidad and Tobago  UKHL
21 1 WLR 1038 . In the great majority of cases, where an accused has sought to escape justice, he would not be able to rely on a change in circumstances brought about by the passing years to defeat extradition.
21 Oppression permitted consideration of the effect of extradition on a dependent child, as well as on the person to be extradited. Re Ashley-Riddle Divisional Court 22 November 1993 illustrates the point, though I would regard the decision as the outcome of a combination of events; the difficulties created for the son would alone probably not have sufficed. Cookeson v Government of Australia  EWHC 149 (Admin) is a more compelling example of the same point in view of the gravity of the illness of the son of the person whose extradition was unsuccessfully sought and for whom he was the sole carer. He had lain low, with a view to avoiding detection, and could for himself have raised no argument about oppression. It was not disputed that the gravity of the offences can be a factor, when considering the effects which the passage of time has had, in deciding whether extradition would be oppressive.
22 Mr Fitzgerald QC for the Appellant submitted, and again it was not at issue, that for the purposes of Article 8 ECHR , in the extradition context, changes of circumstance during the passage of time since arrival, and the gravity of the offences, could be relevant to whether any infringement of Article 8 was proportionate. The rights of innocent members of the whole family, and especially young children, had to be considered in an extradition case; and they could be a particularly cogent consideration. In Norris v Government of the United States of America  UKSC 9  2 AC 487 , Lord Phillips, at paragraph 56, pointed out that the consequences of interference with Article 8 rights had to be “exceptionally serious” before they could outweigh the importance of extradition; and in paragraph 63, that while individual factors had to be considered in each case, consideration of proportionality was likely to be relatively brief in the absence of relevant features which were “unusually or exceptionally compelling.”
23 The interaction between Article 8 rights and the justification or proportionality of their infringement in the extradition context was considered by Laws LJ, sitting as a single judge, in HH and PH v Deputy Prosecutor of the Italian Republic, Genoa  EWHC 1145 (Admin) . Both parents faced extradition to serve substantial periods of imprisonment for drugs offences, (over 9 years for the mother and 4 years for the father), and had children aged 10, 8 and nearly 2. Permission to appeal to the Supreme Court has been granted so it could consider whether its decision in ZH (Tanzania) v SSHD  UKSC 4  2 WLR 148 , affected its earlier decision in Norris . Laws LJ had concluded in paragraph 60:
“Accordingly, while the best interests of affected children are “a primary consideration” in extradition cases, they cannot generally override the public interest in effective extradition procedures. There has to be an “exceptionally compelling feature” ( Norris paragraph 56, 91), giving rise to “the gravest effects of interference with family life” (paragraph 82). That is not ipso facto supplied by an extradition's adverse consequences for the extraditee's children. In fairness I did not understand Mr Keith or Mr Wise to submit otherwise.”
24 Having elaborated the rationale for a markedly different approach between extradition and deportation, he decided that there were no features so pressing and powerful as to justify the discharge of the parents or either of them on Article 8 grounds.
25 Mr Fitzgerald contended that the charges which the Appellant faced here were less serious and, while the husband would not be extradited, the effect on the family and especially on the younger children would be very severe. This permitted, even applying HH , the balance to be struck differently from the way it was in HH .
26 I start with whether the Appellant is debarred from reliance on s14 of the 2003 Act, as the District Judge found. I do so because her knowledge of these criminal proceedings when she left Poland is at the heart of the s14 bar, and in my view, although it may be expressed differently, is also of real significance for the Article 8 ground.
27 Mr Fitzgerald submitted that the evidence was insufficiently clear to permit the District Judge to conclude, to the criminal standard of proof, that criminal proceedings had reached a sufficiently advanced stage, or that she had known that they had, for her departure to prevent her relying on the passage of time thereafter under s14 .
28 The District Judge found on the evidence that the Appellant had been told on many occasions i) that she had to attend every time when summoned by the Court or Public Prosecution Office and ii) that she had to tell the “jurisdiction authority” of any change of address. That finding is implicit in his conclusions and is one which the Gliwice Court letter requires in the absence of persuasive contrary evidence. The District Judge heard the Appellant give evidence and was entitled to reject her evidence as lies.
29 I accept that those requirements were not made in connection with the EAW offences save on one occasion. Those requirements are likely on other occasions to have been imposed in connection with the other criminal proceedings which the District Judge refers to, and as conditions of the suspended sentences. However, they were requirements in force when on 10 June 2002 the Public Prosecutor in Raciborz instructed her that she had a duty to attend Court. It is clear that she knew of that instruction, and knew that it was in connection with criminal proceedings in relation at least to EAW2, the clothing theft. (No distinction has been drawn for these purposes between the offences in the two EAWs.) He was entitled to make those findings on the evidence, and to reject her contrary evidence as lies. The evidence was sufficient to meet the criminal standard.
30 The District Judge was entitled then to conclude that the Appellant's rapid departure abroad 19 days afterwards, with no address given to the authorities then or later, showed that the departure was caused by her desire to avoid the potential criminal proceedings in connection with which her attendance at Court was required. He was entitled to reject her contrary evidence as lies.
31 Mr Fitzgerald submitted that, if those conclusions are justified, there was nonetheless no date given for her attendance at Court and no specific stage in any criminal proceedings which was then to occur. It might have been for no more than preliminary questioning. Departure in those circumstances could not make her a fugitive from justice, making her responsible thereafter for the passage of time.
32 In my judgment, there is no particular stage or event in criminal proceedings which has to have occurred before a departure may prevent reliance on the subsequent passage of time. Certainly the Appellant was not being tried, nor is there any evidence that she had been charged or formally accused. She had not been bailed by the Court, or prosecutor, to appear for charge or trial.
33 The rationale behind holding that s14 is not a bar in cases of flight, as Moses LJ expressed it in Tollman , above, is that, save in the most exceptional circumstances, an accused person cannot sensibly assert that the passage of time makes extradition oppressive where he is responsible for the passage of time. This involves a departure to avoid what the accused knows are actual or threatened criminal proceedings. Of course, the earlier the stage in an investigation or process, the less likely it is that the accused will be aware of such proceedings, and the greater the uncertainty over whether anything will emerge which departure could be said to be an attempt to evade.
34 The facts here have some similarities to those in Tollman and of course some differences. But crucially the Appellant knew of her obligations to attend Court when required by the Prosecutor, whether or not the objection originated in connection with the extradition offences. She was placed under a specific obligation, even if no date was given to attend, in connection with the theft charge in EAW2. She deliberately left shortly after, in breach of her requirement to inform the authorities of her residence, and knowing that, if no date for attendance had yet been given, she would be unable to receive one. That was the purpose of her departure, on the District Judge's wholly justified findings.
35 There may have been some delay by the Polish Judicial Authority in issuing domestic warrants in relation to the earliest offences, and then in issuing EAWs. The deliberate departure of the Appellant abroad, with no known address, is clearly very largely responsible for delaying criminal proceedings beyond the date when they would otherwise have occurred in Poland.
36 In those circumstances, she is properly described as a fugitive from justice. That is not a term of art, but simply the apt description for someone whose conduct has caused the delay in her trial and can now only rely on s14 in most exceptional circumstances.
37 The circumstances relied on as most exceptional are the combination of the relative lack of gravity of the offences, the tender age of the youngest two children and the present condition of her husband.
38 There is no magic in the words “more than trivial” as used by the District Judge to describe these offences, and the language of “no great gravity” in Norris . Those words illustrate how differing degrees of gravity may contribute to the balance whether under s14 or Article 8 . The offences alleged are certainly more than trivial by amount, by circumstance and by record. They are not especially grave, but there are aggravating features: a persistent course of conduct; the theft, if not a breach of trust by an employee, may have been from a vulnerable workplace; falsifying a customs document to evade duties may be serious. She had a record of dishonesty, although she has no record of offending after her arrival in the UK.
39 There was a lapse of time between the commission of the offences alleged against her and the issue of domestic warrants before June 2002; that is most probably attributable to her departure. But the delay up to that point does not realistically suggest that the offences are somehow to be regarded as less grave than implied by their description. The gravity of the offence does not assist an argument that most exceptional circumstances exist.
40 I regard it as very relevant to that issue that the passage of time has not altered the fact that she has young children. In 2002, she had two young children when, as their mother, she would have faced criminal proceedings and possible imprisonment. That is the position now, since she has had further children. So this is not so much a change of circumstances, it is more a repetition of a problem which promptness would still have posed, although the family is larger, the husband's ability to cope in her absence in much greater doubt, and the children who would primarily be affected are different.
41 I do not regard those changed circumstances during the passage of time as anywhere near enough to constitute most exceptional circumstances. I recognise that the operation of s14 is not automatically excluded in the case of a fugitive from justice, and they all turn on the combination of individual circumstances but these circumstances are not equivalent to those in Cookeson . Were I to have taken a different view on whether the Appellant was a fugitive from justice, the s14 argument would have had a different outcome.
42 The position under Article 8 ECHR is not necessarily to be evaluated in the same way, though the facts as properly found by the District Judge are unchanged. There is no doubt that the circumstances of the Appellant's departure from Poland, the lapse of time, what has happened the while, the rights and circumstances of her whole family, and the gravity of the offences are all relevant to the proportionality of the interference in her Article 8 rights and those of her family, which her extradition would undoubtedly bring about. There are no means of achieving the legitimate objective of trying her for the offences of which she is accused, short of her extradition to Poland.
43 So the question is whether the impact on Article 8 rights of the achievement of that legitimate objective is so great that it should not be achieved at all. This means that, at least so long as she remains in England, she would not face trial for offences of dishonesty of some significance but far from the worst of their type. The issue is not capable of any great elaboration. The individual components to the judgment on her departure and the nature of the offences have already been considered. The fact that there would always have been an impact on the Appellant's young children is not irrelevant; although the individual children who would now be affected are different, there is nothing peculiar to their circumstances, to differentiate them from their siblings now older but of similar ages in 2002.
44 The family is now larger than in 2002. The father is not well placed at all to cope with the young children in their mother's absence. This may be rather different from the position in Poland in 2002. He would still be there, as their father, providing some degree of emotional and physical support. The older children should be of some help to their father now, as a consequence of the passage of time. The oldest will live at home while at university. There is no useful family left in Poland; I accept that there is no realistic prospect of the family returning to Poland with the Appellant because of the serious disruption to the children's education and lives. It is possible, but not likely and a long way from probable, that any of the children would be taken into care. The interests of the children are a, but not the primary consideration. That said, I accept without reservation that the impact on the two younger children would be very severe.
45 Applying Norris and HH , I consider that it would be proportionate to extradite the Appellant to Poland. These circumstances, though quite strong, are not close to being strong enough to satisfy the levels those cases require. The public interest in upholding extradition treaties, the European Framework Decision, and in avoiding the creation of a safe haven for fugitives from justice in the UK, outweigh this Appellant's family circumstances. As with s14 , the outcome could well have been different if the District Judge had not concluded, rightly in my view, that the Appellant left Poland when she did to avoid the criminal proceedings she knew were being seriously contemplated, and which, with her record and sentences were likely to have serious consequences for her.
46 This appeal is accordingly dismissed.
NOTE: Leave has now been granted to certify a question of public importance regarding the impact of Article 8 rights in extradition proceedings. The appeal has now been joined with R. (on the application of HH) v Westminster City Magistrates' Court and will be heard by the Supreme Court in early March 2012.
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The Queen on the Application of Filipek-Kwasny v Polish Judicial Authority  EWHC 25 (Admin)