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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 >> Res v City Court of Brno, Czech Republic  EWHC 2939 (Admin) (04 November 2021)
Cite as:  EWHC 2939 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| LUBOMIR RES
|- and –
|CITY COURT OF BRNO,
Tom Hoskins (instructed by CPS) for the Respondent
Hearing dates: 26 October 2021
Crown Copyright ©
Mr Justice Julian Knowles:
a. On 14 and 17 June 2013 in Brno, with the intention of making a gain for himself, fraudulently obtained 14,000 Czech korunas from the complainant by falsely representing he was authorised to receive the funds as deposit for a rental flat, when he was not (the First Offence);
b. Between 12 March and 14 June 2013 in Brno, with the intention of making a gain for himself, fraudulently obtained 50,000 Czech korunas through a series of payments from the complainant by falsely representing the funds would be used for a house purchase, which it was not (the Second Offence).
"13 Sixth in relation to conviction warrants:
(ii) Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence."
The decision of the District Judge
"14 Passage of time
A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have -
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
"21 Person unlawfully at large: human rights
(1) If the judge is required to proceed under this section (by virtue of section 20 he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.
(4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory.
(5) If the person is remanded in custody, the appropriate judge may later grant bail."
"Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"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."
"26 … If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part …
27. There are sound reasons for such an approach. Foremost amongst them is to minimise the incentive on the accused to flee. There is always the possibility, often a strong possibility, that the requesting state, for want of resources or whatever other reason, may be dilatory in seeking a fugitive's return. If it were then open to the fugitive to pray in aid such events as occurred during the ensuing years - for example, the disappearance of witnesses or the establishment of close-knit relationships - it would tend rather to encourage flight than, as must be the policy of the law, to discourage it …"
"29. I did not believe the RP [ie, the Appellant] when he asserted that he was unaware of any assault or proceedings relating to the same. He did not advance his claims of ignorance in the strongest terms when challenged in cross examination. In any event, they were made in the face of the Further Information which says unequivocally that by a ruling dated 9 July 2015, "it was decided that Lubomir Res must serve the prison sentence imposed on him under Ref. No. 92 T 210/2013, since during the set probationary period he committed an offence consisting in an assault against another person." Having regard to the principal of mutual trust and respect between EU member states, I find that I should accept this from the JA. This information has been provided by the City Court in Brno. It is doubtless based upon official records. There is no reason for me to go behind what is contained in the Further Information because the RP says he does not recall, or is not aware, of it. Furthermore, I find the fact that the RP has not returned to the Czech Republic since December 2014, making it necessary for his unwell wife and his daughter to travel to see him, tends to support the JA's case.
30. Mr Swain pointed out, in the course of his written and oral submissions, that I have not been provided with any information about his client's arrest, questioning, summons, court hearing or conviction with regards to the assault. The assault does not appear on the international list of convictions ('ILOC') in respect of the RP. The lack of such detail and the absence of a relevant entry on the ILOC does not detract from what I have said above about the principal of mutual trust. I bear in mind too that the JA is not seeking the RP's extradition for the assault offence. I have sufficient details concerning the extradition offences.
"It follows that the RP left the Czech Republic after committing the assault, but before the suspended sentence of 6 January 2014 was activated. Activation was ordered on 9 July 2015. The RP says he came to England on 6 September 2014. This is not disputed by the JA. Further, the RP has exhibited correspondence to him from the DWP concerning his application for a national insurance number. This correspondence is dated 16 October 2014 and so demonstrates he was seeking to settle here by that date. The suspended sentence was in force at the time the RP came to the UK. The assault evidently took place at some point between 6 January 2014 and 9 July 2015. It may have occurred before or after the RP's week-long visit to the Czech Republic in December 2014. Either way, when the RP left the Czech Republic for the UK either on 6 September 2014 or following the December 2014 visit – without telling the Czech judicial or prosecution authorities (which is undisputed) – he was leaving in the knowledge that he was subject to a suspended sentence liable to be activated if he committed a further offence and, as I have found, in the knowledge that he had committed a further offence. In these circumstances, I find that the RP's status as a fugitive has been proved to the criminal standard."
"32. … It is submitted that all this is inconsistent with the actions of a fugitive. I cannot accept that submission. The reality is that the RP has knowingly risked discovery as a fugitive since he came to the UK. In 2019, when he entered into discussions with his consulate about a passport, he was taking a further risk but doing so from a position in which he had to get an identity document to keep his job, as he told the consulate. He also told the consulate, I do not intend to travel back to the Czech Republic in the foreseeable future …"
Grounds of appeal
"27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may -
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that -
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
"58. 'Fugitive' is not a statutory term but a concept developed in the case law, in particular in Gomes's case  1 WLR 1038 which elaborates the principle stated in Kakis's case  1 WLR 779. In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14. Before this rule can apply, a person's status as a fugitive must be established to the criminal standard: Gomes's case, para 27.
59. On behalf of the appellants, Mr Jones submits that in the passage in his speech in Kakis's case referred to in Gomes's case as Diplock para 1, Lord Diplock was limiting the concept of a fugitive to cases where the person had fled the country, concealing his whereabouts or evading arrest. However, I consider that these were merely examples of a more general principle underlying Kakis's and Gomes's cases. Where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. Rather than seeking to provide a comprehensive definition of a fugitive for this purpose, it is likely to be more fruitful to consider the applicability of this principle on a case by case basis. Similarly, a process of sub-categorisation involving 'quasi-fugitives' and 'fugitives not in the classic sense' is unlikely to be helpful.
60. I consider that a person subject to a suspended sentence who voluntarily leaves the jurisdiction in question, thereby knowingly preventing himself from performing the obligations of that sentence, and in the knowledge that the sentence may as a result be implemented, cannot rely on passage of time resulting from his absence from the jurisdiction as a statutory bar to extradition if the sentence is, as a result, subsequently activated. The activation of the sentence is the risk to which the person has knowingly exposed himself. In my view, such a situation falls firmly within the fugitive principle enunciated in Kakis and Gomes and Goodyer. The fact, if it be the case, that a person's motive for leaving the jurisdiction was economic and not a desire to avoid the sentence, does not make the principle inapplicable.
62. … I have come to the firm view that the approach of Ouseley J in Salbut, that is correct on this point and should be followed. It is not necessary, in order that a requested person be treated as a fugitive, that he knows that his sentence has been activated. It is enough that he knows that it is liable to be activated because of his breach of the terms of its suspension. Any other approach would be inconsistent with the principle in Kakis and in Gomes and Goodyer and would introduce considerable uncertainty into this area of the law."
"27. … The principle as to whether the person is a 'fugitive' having 'knowingly placed [herself] beyond the reach of a legal process' is one of contextual application and falls to be applied 'on a case by case basis' (Wisniewski paragraph 59). This is in law a distinct question from whether, and requires more than that, the person has been 'unlawfully at large' (as to which see Wisniewski at paragraphs 51-57). The function and purpose of the principle is that any lapse of time or consequences of lapse of time so far as extradition is concerned is a consequence of the persons 'own choice and making' (see Kakis at 783B), so that any delay "in the commencement or conduct of extradition proceedings" can be said to have been 'brought about by' the person themselves (see Kakis at 783A). Lord Diplock's exposition (in Kakis at 783A, endorsed in Gomes) spoke of the conduct of a person 'by fleeing the country, concealing his whereabouts or evading arrest'. The description of a person having 'knowingly placed [herself] beyond the reach of a legal process' (Wisniewski at paragraph 59) includes a person who breaches the obligations of a suspended sentence (a) by a voluntary act of leaving the jurisdiction in question thereby knowingly preventing themselves from performing those obligations (see Wisniewski paragraph 60) or (b) by a voluntary act of ceasing to keep in contact with the authorities thereby becoming a person whose whereabouts are unknown to the authority which is entitled to know of them, putting it beyond that authority's power to deal with the person (see Wisniewski paragraph 62).
28. In grappling with the idea of fugitivity, expressed in the authorities which were cited and to which I have referred, I have found it helpful to think in particular about the following three linked themes: (i) locational dynamism; (ii) informational deficit; and (iii) intended consequential elusiveness. That is not to say that these are elements of a litmus test; nor that all three themes can be expected to be present. A person whose location changes, with a lack of information, becoming elusiveness can be seen as a paradigm case of a fugitive. These themes, or some of them at least, can be seen to be met by each of the following situations: a person who flees the country; a person who conceals their whereabouts; a person who evades arrest; a person whose act of leaving a country knowingly prevents themselves from performing obligations; a person who ceases contact with authorities so as to become a person whose whereabouts are unknown to those authorities and cannot be dealt with by those authorities; a person whose actions are the cause of any delays in their pursuit by the authorities. These themes, as it seems to me, reflect the ordinary and natural meaning of the word 'fugitive'. They link directly to the underlying idea of extradition delays being consequential upon the individual's own choices, with what are, in effect, penalising consequences for the individual in an analysis of the extradition circumstances, under the law."
"The reality is that it is only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves…..Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition".
"(1) 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.
(2) There is no test of exceptionality in either context.
(3) The question is always whether the interference with the private and family lives of the extradition and other members of his family is outweighed by the public interest in extradition.
(4) 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.
(5) 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.
(6) 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.
(7) 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 …
… the court would be well advised to adopt the same structured approach to an article 8 case as would be applied by the Strasbourg Court. First, it asks whether there is or will be an interference with the right to respect for private and family life. Second, it asks whether that interference is in accordance with the law and pursues one or more of the legitimate aims within those listed in article 8.2. Third, it asks whether the interference is 'necessary in a democratic society" in the sense of being a proportionate response to that legitimate aim. In answering that all-important question it will weigh the nature and gravity of the interference against the importance of the aims pursued. In other words, the balancing exercise is the same in each context: what may differ are the nature and weight of the interests to be put into each side of the scale.'
"46. … the delay in this case has not been particularly prolonged. The RP has no family life in the UK. His return to the Czech Republic will bring him nearer to his wife and child who currently reside there. His loss of employment in the UK will have a detrimental impact on them financially, but they have managed without his financial support before and the Czech state can be expected to provide financial assistance if the family cannot manage. Brexit uncertainty is of minimal weight since the RP would not be separated from family members in the UK as a result of his surrender. In any event, Brexit uncertainty is insufficient to defeat the imperative of extradition in this case, even in combination with other factors. Weighing up all the factors here, the impact of extradition will not be exceptionally severe on the RP or his family. The extradition of the RP will not disproportionately interfere with his or his family's right to respect for private and family life. It is compatible with the Convention rights."