FK Extradition

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MR JUSTICE OUSELEY :

1. This is an appeal by Mrs Filipek-Kwasny, a Polish national aged 43, from the decision ofSenior 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 tohim 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.

The facts

2. EAW1, certified on 14 April 2008, concerns three offences of fraud. The first in time wasallegedly 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, allegedlycommitted 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 threechildren, 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 theUK.

6. The District Judge heard evidence from the Appellant herself on the passage of time, andwhat 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 attendcourt 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 Respondents evidence. The Appellant had had a number of criminalproceedings 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


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Judgment Approved by the court for handing down. Filipek-Kwasny v Polish Judicial Authority

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 wasinstructed about her rights and duties several times, among

others about her duty to appear every time when summoned by

the Court or the Public Prosecutors 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 Procedure,

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 itwas 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 informationapparently 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.


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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 toArticle 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 thehearing 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 thechildrens 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 mothers

extradition would be extreme.

14.This could not be ameliorated by the family returning to Poland in view of the disruptionwhich that would cause to the family home and the childrens education, including the

university aspirations of the eldest.

15.The District Judge commented, with some justification, that he wondered whether heneeded 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 Respondents

submission that it revealed nothing which went beyond that inherent in the removal of a

parent in extradition proceedings.


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16.Dr Armstrongs updated report said that the family as a whole continued to function well,albeit that uncertainty over the Appellants 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 Appellants emotional support for the younger childrenwould 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 theAct. 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 therequesting 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 [1978] 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 TheGovernment of the United States of America v Tollman and Tollman [2008] EWHC 184

(Admin), in which Moses LJ, with whom I agreed, said at paragraphs 53 and 58:


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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 thepurposes 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 membersof the whole family, and especially young children, had to be considered in an extradition

case; and they could be a particularly cogent consideration. InNorris v Government of the

United States of America [2010] UKSC 9 [2010] 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 theirinfringement in the extradition context was considered by Laws LJ, sitting as a single

judge, inHH and PH v Deputy Prosecutor of the Italian Republic, Genoa [2011] EWHC1145(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 [2011]

UKSC 4 [2011] 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 extraditions adverse

consequences for the extraditees 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 extraditionand 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 lessserious 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 applyingHH, the balance to be struck differently from the way it was inHH.


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Conclusions

26.I start with whether the Appellant is debarred from reliance on s14 of the 2003 Act, as theDistrict 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 DistrictJudge 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 manyoccasions 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 offencessave 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 Appellants rapid departureabroad 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 nodate 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 tohave 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 LJexpressed it in Tollman, above, is that, save in the most exceptional circumstances, an


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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 Judges wholly justified findings.

35.There may have been some delay by the Polish Judicial Authority in issuing domesticwarrants 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 largelyresponsible 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 aterm 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 lackof 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 todescribe 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 andthe issue of domestic warrants before June 2002; that is most probably attributable to herdeparture. 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 factthat 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


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circumstances, it is more a repetition of a problem which promptness would still have

posed, although the family is larger, the husbands 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 nearenough 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 turnon 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 Appellants 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 ofwhich 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 thatlegitimate 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 Appellants 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 withthe young children in their mothers 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 childrens 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 reservationthat 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 theAppellant 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 Appellants family

circumstances. As with s14, the outcome could well have been different if the District


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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.

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