Neutral Citation Number: [2017] EWHC 426 (Admin)
Case No: CO/5000/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/03/2017

Before :

MR JUSTICE NICOL
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Between :

	Pawel Maciejewski	Appellant	
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	District Court in Elbag, Poland	Respondent	

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Saoirse Townshend (instructed by Aneta Maziarz) for the Appellant
Catherine Brown (instructed by Extradition Unit CPS) for the Respondent

Hearing date: 28th February 2017
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Judgment Approved
Mr Justice Nicol : 
1.	On 20th December 2016 I granted the Appellant permission to appeal against the decision of District Judge Brennan on 28th September 2016 to order his extradition to Poland pursuant to a conviction European Arrest Warrant (‘EAW’). 
2.	The Appellant has been convicted of two offences of assault. In chronological order the first offence was committed on 19th April 2007. The EAW explains that the Appellant with others hit the victim all over his body causing the victim to suffer head, chest and general injuries. He pleaded guilty and, on 30th August 2007, he was sentenced to 8 months imprisonment.
3.	The second offence was committed at night over 4/5th May 2007. Again the Appellant participated in a group assault. One of the attackers kicked the victim in the face and, after the victim fell, kept kicking him all over the body. The victim suffered injuries to his head and elsewhere. The Appellant  pleaded not guilty but he was convicted and sentenced to 1 year and 2 months on 20th December 2007.   
4.	According to further information provided by the Polish authorities, the execution of the sentence was at first deferred or suspended. However, the Appellant committed another, similar offence. In 2010 he was required to surrender, but had not done so.
5.	The EAW was issued on 9th March 2011. It was certified by the Serious Organised Crime Agency (the predecessor to the National Crime Agency) on 8th November 2011. The SOCA circulated the warrant to the South Wales Police, but the Appellant was not located until 16th April 2016 when he was arrested following a road traffic collision. He was brought before Westminster Magistrates’ Court two days later. The extradition hearing began on 10th June 2016, but was adjourned to allow a welfare report to be prepared under Children Act 1989 s.7. The hearing resumed in August. As I have said, DJ Brennan gave his decision on 28th September 2016.
6.	The central issue before the District Judge was whether the extradition of the Appellant would be contrary to Article 8 of the European Convention on Human Rights and so whether the Appellant’s extradition would be barred under Extradition Act 2003 s.21. 
7.	The District Judge heard evidence from the Appellant and his partner, Magdalena Janeczko.
8.	The Appellant was (at the time of the extradition hearing) 27 years old. The offences had been committed 10 years previously and the District Judge accepted that he was now a very different person. He gave evidence that he knew that he left Poland in breach of his duty to surrender to prison. He came to the UK and settled in Merthyr Tydfil. He was in work. The District Judge found that he had led a largely fulfilling life in the UK, being employed throughout and contributing positively to the economic well-being of the country as well as benefitting himself financially. He and his partner had a daughter who was 7 months old at the time of the extradition hearing and of whom he was enormously proud. The Appellant had no convictions in the UK, though he did have a caution for theft on 27th July 2010.
9.	The welfare report showed that the child was happy and healthy. The Welfare report raised no concerns about the child’s well being in the event that the Appellant was extradited.
10.	Ms Janeczko had been tearful when giving evidence and the Welfare Report confirmed that she was fearful of the consequences of extradition given her young age (she was 21 at the time of the extradition hearing), that she was in a foreign country and had such a young baby. Her family and his family lived at the opposite ends of Poland.  
11.	The Appellant’s parents were separated, but they and the Appellant’s brother (who had a partner of his own) all lived in the same town in Poland. The brother, it seems, had provided the Appellant with a loan to assist with the funding of the Appellant’s legal representation  in the extradition proceedings. In cross examination, the Appellant accepted that his family would of course help out (in the event of his extradition) but he had not yet asked them to do so. He said that a combination of their age, ailments, space and other priorities would mean that they would not be able properly to assist with looking after Ms Janeczko and their child. Ms Janeczko put forward the same reasons. She had asked her mother to help but said that would only be in the short term. She and the Appellant said that there were little prospects for her in Poland.
12.	The District Judge found in relation to Ms Janeczko,
‘Although tearful when giving evidence, I did not find her, in the time she was before me, to be someone who has undergone such a catastrophic life change following the birth of her daughter and her partner’s arrest on the EAW. This impression is supported by the absence of any medical evidence and the conclusion in the Welfare Report that she can access universal agencies to give her support in the short term. I saw no evidence that she would be incapable of working and looking after her daughter if the [Appellant] is extradited.
I do accept that she will be very upset and distressed if the [Appellant] is extradited but nothing in evidence before me meets the standard of severity envisaged by Lady Hale in HH v Italy [2012] UKSC 25.
If extradited, Ms Janeczko has the option of returning to Poland where family support (from either or both sides of the family) would be available to ameliorate the reduction in her standard of living. The same is true if she remains in the UK, and has the support of benefits if child care means she cannot immediately return to work.’
13.	The District Judge then conducted the balancing exercise recommended in Celinski v Poland  [2015] EWHC 1274 (Admin). Against extradition he listed the following factors:
i)	Ms Janeczko was a 21 year old mother of a 7 month baby in a new country, without the support network she would have in her native country.
ii)	Their daughter would lose out on bonding time with her father and, if she remained in the UK, would not be able to visit her father.
iii)	Only short term help would be available through state agencies to ameliorate Ms Janeczko’s financial and emotional circumstances.
iv)	The Appellant had worked hard, was in full time and stable employment and had established a long term and stable relationship. He had a young daughter.
v)	The offences were now aged and he was a different person.
14.	In favour of extradition were the following factors;
i)	The Appellant was a fugitive from justice.
ii)	Since he had deliberately left Poland to avoid going to prison he could not complain about the age of the offences.
iii)	He faced a lengthy prison sentence for serious offences of violence.
iv)	He had started a relationship and family knowing that one day he might have to return to Poland to serve his sentence.
v)	There is a high public interest in ensuring that extradition arrangements were observed.
vi)	There was also a high public interest in ensuring that the UK should not be seen as a safe haven from justice.
vii)	Decisions of a judicial authority of a member state should be accorded a proper degree of mutual confidence and respect.
15.	In striking the balance, the District Judge acknowledged that it would be distressing for Ms Janeczko if the Appellant was extradited and there would be a diminution in the quality of her life whether she stayed in the UK or returned to Poland, but these were not of a such a degree as to overcome the factors favouring extradition.
16.	It will be noted that the District Judge observed that there had been no medical evidence as to Ms Janeczko’s condition. Ms Townshend, on the Appellant’s behalf applies to adduce a report which has been obtained subsequently from Dr R.J. Budd, a registered Clinical Psychologist dated 14th December 2016. Ms Townshend commented that this report had not been in existence at the time of the hearing before the District Judge. Ms. Janeczko had seen her GP about post-natal depression but was waiting for a referral on the NHS. The Appellant’s income meant that he was financially ineligible for legal aid in the Magistrates’ Court. Ms Janeczko was not working because of her illness and the family could not afford to consult a psychologist privately. Ms Townshend also sought permission to adduce a second witness statement of Ms Janeczko dated 27th February 2017 as updating evidence on her condition (which she said had worsened since the District Judge’s decision).
17.	Ms Brown, on behalf of the Respondent, was neutral on the application. 
18.	The power of the court to admit fresh evidence on an extradition appeal was analysed by the Divisional Court in Fenyvesi v Hungary [2009] EWHC 231 (Admin). I agree with Ms Townshend that good reason has been shown as to why this evidence was not available to be adduced before the District Judge. It also goes to an important issue for me to consider. For that reason I shall consider it. Whether it is sufficient to make a decisive difference to a question which the District Judge had to answer is a matter to which I will turn.
19.	Dr Budd comments that the history which which Ms Janeczko provided showed that she had experienced emotional neglect and physical abuse as a child and was exposed to substantial domestic violence. Her father had been imprisoned for multiple rapes of strangers and imprisoned when she had been two and a half years old. Apart from a brief contact when she had been 14, she had not seen her father since. Her mother formed a new relationship. Her step father had a drink problem and was violent at home.  Nonetheless she had been closer to her step-father than her mother. The step-father had left the family home when Ms Janeczko was 16. She had felt abandoned.
20.	Dr Budd considered that Ms Janeczko had symptoms and a self-reported history consistent with a major depressive disorder with peripartum onset. It was currently of only mild to moderate severity. For that reason, it’s impact on the child was likely to be limited.  Depression typically followed a course of relapsing and remitting with recovery was facilitated by timely and appropriate treatment. If the Appellant was extradited, there was a significant risk that her depression would worsen since he was a protective factor at present. That, in turn, would be likely to present a significant risk to her daughter’s intellectual and emotional development and place the daughter at risk of developing depression in adulthood. Dr Budd gave his view that if the Appellant was extradited, ‘it is unlikely that any level of support that could reasonably be provided by local Mental Health and Social Services could significantly reduce the risk of her depression worsening substantially. Depending upon the severity of such a reaction Ms Janeczko may then require inpatient treatment in a Mother and Baby Psychiatric Unit.’
21.	Ms Townshend submits that Dr Budd’s evidence is sufficiently significant that I should myself carry out the balancing exercise required by Article 8.
22.	In so doing, she also submitted that the District Judge had given insufficient weight to the delay which had occurred since the offences had been committed and, indeed, since the EAW had been issued. In 2010, as the District Judge recognised, the Appellant had been cautioned by the police and a record of this was included on his PNC entry. The Appellant had since moved from the address he had then had, but he had remained living in Merthyr Tydfil, which was not a large town. There was no evidence that the South Wales Police to whom the NCA had sent the EAW had tried to locate him through this means. The offences had been committed 10 years ago. The Appellant had then been 17. He was, as the District Judge recognised a very different person now. In HH v Italy  [2013] 1 AC 338 the Requested Person had also been a fugitive, but at [46] Lady Hale had said that the length of the delay was nonetheless relevant to the Article 8 balancing exercise and was some indication of the importance attached to the offending. Ms Townshend accepted that the 5 years between the issuing of the EAW and the Appellant’s arrest were not the responsibility of the Judicial Authority, but the delay could still count against the enforcement of extradition. It was significant that it was during this interval that the Appellant had established his relationship with Ms Janeczko and their daughter had been born.  
23.	I agree with Ms Towshend that Dr Budd’s report is significant new evidence. It speaks to the potential impact of the Appellant’s extradition on both Ms Janeczko and her daughter. What is said to be an adverse impact of extradition on a child must always be carefully considered. I therefore agree that it is necessary for me to conduct the balancing exercise again. That said, I still come to the same conclusion as the District Judge did, namely that extradition of the Appellant would not be a disproportionate interference with the family or private life of the Appellant, his partner or child. My reasons are as follows:
i)	While Dr Budd paints a bleak picture of the impact of the extradition of the Appellant on Ms Janeczko, he has not, as Ms Brown observed, taken into account the potential support available to her from her or the Appellant’s family in Poland. As I have noted, the Appellant in his evidence before the District Judge had referred to various obstacles in the way of the families in Poland providing assistance, but he had also said that his family in Poland would of course help out. The conclusion of the District Judge, based on this oral evidence was that 
‘If [the Appellant is] extradited, Ms. Janeczko has the option of returning to Poland where family support (from either or both sides of the family) would be available to ameliorate the reduction in her standard of living. The same is true if she remains in the UK and the support of benefits if child care  means she cannot immediately return to work…She can access state support and benefits or rely either here or in Poland, on family help and support.’ 
Dr Budd has spoken of the limited nature of state support that would be likely in the UK (and the District Judge had recognised that state support would only be short term), but that left unaddressed the alternative of family help and support.
ii)	In some cases it is unrealistic to expect the partner of a Requested Person and her or his child to go back to their own country. That may be because of schooling, the child’s network of friends, or health needs. None of those inhibitions apply in the present case. It may well be that Ms Janeczko would prefer to remain in the UK, but that is not the same thing.
iii)	I agree with Ms Brown that the offences for which the Polish authorities are seeking the Appellant’s extradition are serious. Both were group assaults. Both led to head injuries. One took place at night. It is also significant that the EAW covers two offences. Thus, these represent repeated offences of violence. Moreover, according to the Further Information from the Polish authorities, the period of suspension or deferral came to an end when the Appellant committed ‘a similar intentional crime’ in 2009.
iv)	I agree with the District Judge that it is highly material that the Appellant left Poland knowing that these sentences remained outstanding. In those circumstances, he would have been aware that any private or family life which he established was precarious.
v)	The significant period of delay, between the issue of the EAW and the Appellant’s arrest, was not the fault of the Judicial Authority. This is not, therefore, a case where it can be inferred from culpable inaction that the Judicial Authority regarded the outstanding offences as relatively unimportant. 
vi)	The South Wales Police may or may not have consulted the Police National Computer with its record of the caution administered to the Appellant in 2010. But even if they had done so, it would have revealed a different address to any of the addresses which he gave in his proof of evidence as places where he had lived since coming to the UK. It is unknown whether, if the police had gone to the address in the PNC record, this could have led to them locating the Appellant any sooner. 
vii)	Even in circumstances such as the present, delay is a factor against extradition, but, by describing the offences as ‘aged’, the District Judge so recognised. The District Judge recognised as well that the Appellant had been 17 at the time of the offences, was now 27 and was a different person. Those matters, too, were properly put in the balance against extradition, as I do.
viii)	I appreciate that Ms Duckworth, the Social Worker who compiled the s.7 report gave her view that 
‘There are strong reasons to supporting the family remaining resident in Merthyr Tydfil as a family unit as they appear settled here and identify it as being their home. Both parents have employment here, it also being [the child’s] birth place.’ 
However, the question I have to consider is different to that which Ms Duckworth appears to have addressed.  
ix)	While the Court must pay careful attention to the adverse consequences for a Requested Person’s family (especially children) and while there is no test of ‘exceptionality’, it is ordinarily only if those consequences are particularly severe that extradition will be disproportionate and Article 8 will be violated by giving effect to the extradition arrangements – see HH v Italy  at [8(7)].
24.	It follows that, even with the assistance of Dr Budd’s report and the updating evidence from Ms Janeczko, I also conclude that the Convention of rights of the Appellant, Ms Janeczko and their daughter are not a bar to the Appellant’s extradition.
25.	It follows that this appeal is dismissed.