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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Plucinski v Regional Court in Poznan Poland [2014] EWHC 4515 (Admin) (19 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4515.html Cite as: [2014] EWHC 4515 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 November 2014

1. SIR STEPHEN SILBER:
2. Introduction
3. Piotr Plucinski appeals against a decision of Senior District Judge Riddle made on 9 September 2014 at Westminster Magistrates' Court ordering the appellant's extradition to Poland on a conviction European Arrest Warrant which was issued out of the Regional Court in Poznan in Poland on 23 May 2011. It was certified in this country by the National Crime Agency on 26 June 2014. The appellant's extradition is sought to serve a sentence of imprisonment of 11 months and 27 days. Poland has been designated a Category 1 territory pursuant to section 1 of the Extradition Act. The appellant was arrested on 30 June and before the District Judge he raised arguments based on Article 14 of the Act and Article 8.
4. The ground of appeal that is being pursued today is simply that the District Judge erred in concluding that the extradition was a proportionate interference with the appellant's right to a private life and those of his family, particularly those of his children.
5. The sentence which is the subject matter of the extradition request and which was suspended for 3 years, was imposed following the appellant's conviction for an offence of attempted burglary on 8 October 2007 where he attempted to break into a store and he caused damage to the store to a value of what is the Polish equivalent of about £80. Under the terms of his sentence he was required to redress the damage within 3 months and he was under the supervision of probation. He obtained permission to leave Poland and came to England and obtained a job as a fruit picker in Margate, where he still resides. He did not return to Poland. He failed to comply with the requirements of his probation and on 9 April 2009 the execution of the sentence was ordered.
6. The appellant is 34 years of age and so he would have been 28 years of age at the time of the offence, which is I am told his only convictioN in Poland. He met his partner, Wioleta Okonieska, in the United Kingdom in 2009. She had previously a child called Oscar who is now aged 4 and the appellant's own child is Patrycja who is aged 2 but the appellant is said to play the role of a father to both children. The appellant and his partner have lived together in Margate, with the appellant providing the financial means for the family and it is said that he is a hands-on father with close emotional bonds to both his young children.
7. The approach of the District Judge
8. The approach of the District Judge, who of course both had to deal with the delay point and the Article 8 point, was that he noted that the offence took place 7 years ago and he considered, on the assumption that the appellant had no previous convictions, that he probably would not have received a custodial sentence for the offence here provided he had complied with an alternative punishment such as a community order or a suspended sentence. The District Judge recorded that the sentence was imposed because the appellant failed to comply with the compensation and supervision requirements.
9. In the view of the District Judge, this was an offence of modest seriousness but was "far from trivial". It is explained that the District Judge took the view that the appellant fled Poland and avoided repaying the money and avoided the supervision of his supervision officer. The District Judge added that it is material that the appellant then offended here and he later breached a court order not to drive.
10. The District Judge read a statement from the appellant's partner and noted that she had a mother in Kent and that she had in the recent past worked. The District Judge accepted that there would be hardship for the appellant's partner and the children if he was extradited but it did not go beyond the hardship often associated with extradition because the appellant's partner would not be destitute and the children would be cared for. He then concluded that extradition was not disproportionate and he was satisfied that the new proportionality bar, not argued here, did not apply to the facts, and that Article 8 also failed on the facts. He therefore ordered the extradition of the appellant.
11. Submissions
12. In clear and careful submissions made on behalf of the appellant, my attention was drawn to the well known decisions of the House of Lords in Norris v Government of the United States of America [2010] 2 AC 487 and the more recent decision of the Supreme Court in HH & PH v Deputy Prosecutor of the Italian Republic, Genoa; F-K (FC) v Polish Judicial Authority [2012] 3 WLR 90, which, as he explained, emphasised the need for the courts to give full consideration to the proportionality of extradition.
13. I was reminded of what Baroness Hale had said in paragraph 8 as follows:

i. "We can, therefore, draw the following conclusions from Norris:

(2) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

(3) There is no test of exceptionality in either context.

(4) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

(5) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.

(6) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

(7) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

(8) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

14. It should be noted that Baroness Hale referred to the constant and weighty public interest in extradition and she also made it very clear later in paragraph 33 that children are a primary consideration in the Article 8 assessment. In particular, she said:

i. "These two points clarified, what more needs to be said about the interests of children? There appears to be some disagreement between us about the order in which the judge should approach the task. I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner. That is why it is advisable to approach article 8 in the same order in which the Strasbourg court would do so. There is an additional reason to do so in a case involving children. The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee. Thirdly, as the Coram Children's Legal Centre point out, although the child has a right to her family life and to all that goes with it, there is also a strong public interest in ensuring that children are properly brought up. This can of course cut both ways: sometimes a parent may do a child more harm than good and it is in the child's best interests to find an alternative home for her. But sometimes the parents' past criminality may say nothing at all about their capacity to bring up their children properly. Fourthly, therefore, as the effect upon the child's interests is always likely to be more severe than the effect upon an adult's, the court may have to consider whether there is any way in which the public interest in extradition can be met without doing such harm to the child."

15. The main point made by Mr Stansfeld is that the District Judge did not consider adequately or properly the impact of the extradition on the children and particularly on the two young children, because it appeared that he was looking for factors to set the case apart from other individuals facing extradition and that that approach does not reflect the assessment of the courts. He relies on the statement of Cox J in Vitalij Sosik v Prosecutor General, Lithuania [2014] EWHC 2487 (Admin) at paragraph 27 and 33, where she explained the very substantial impact on young children of being separated from their father. Both counsel accepted,however, that it is necessary to make a fact sensitive decision in each case.
16. It was also pointed out that 7 years had elapsed since the offence was committed and although the District Judge found the appellant to be a fugitive from justice, that does not prevent the appellant relying on delay from the point of view of his family life.
17. Mr Stansfeld contends that the offence which was committed 7 years ago is not particularly serious and the appellant has worked hard and started a family. It is not suggested that if he knew there would be extradition proceedings, he would not have started a family here but what is said is that two young children stand to lose their father for a relatively minor offence committed before they were born and before he had the responsibilities and that there is a massive difference between a working man of 34 years of age as a father and a young single man of 28, which is when the offence was committed.
18. These matters had to be seen against the background that the children were not alive when the offence was committed, so this was not a case of a father disregarding his responsibility for his children. It is submitted that in all the circumstances the proportionality question comes down to considering whether it is in the public interest to remove their loving father from two children with the inherent risk of causing emotional and developmental harm to the children in order for him to serve a custodial sentence and it is said that that would be disproportionate.
19. Mr Cadman contends that that the decision of the District Judge was fair. He attaches great weight to what is described by Baroness Hale as "a constant and weighty public interest" in extradition, namely that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations; and that there should be no safe havens.
20. I have had to consider the submissions. It was also said by Mr Stansfeld that one of the issues for consideration was whether or not the extradition would be compliant with Article 8. I have come to the conclusion that it would be. Quite clearly Article 8 is engaged so far as the partner and the children of the appellant are concerned but it seems to me that this is one of those cases in which, in the words of Baroness Hale, the public interest in extradition outweighs the Article 8 interests of the family and that the interference with the appellant's article 8 rights does not require me to come to a different conclusion.
21. For all those reasons, the appeal must be dismissed but it can be some consolation to the appellant to know that everything that could have been said on behalf of the appellant has been said with clarity, care and good sense by Mr Stansfield.