Kalemba v Regional Court in Gdansk, Poland

1. MR JUSTICE CRANSTON: This is an appeal from a decision of District Judge Blake, made on 24 March 2014, to order the appellant's extradition to Poland. The District Judge considered two European Arrest Warrants: first, a conviction warrant concerning a conviction for fraud where the appellant had a remaining sentence of 1 year and 2 months' imprisonment to serve; second, an accusation warrant, which was issued on 18 December 2009 and certified in April 2012, where the appellant is sought to stand trial for another offence of fraud.

2. I refused leave to appeal in relation to the first warrant and a renewed application was very recently refused by Ouseley J. This appeal concerns issues raised in relation to the second warrant when I gave leave on issues concerned with proportionality under section 21 A of the Extradition Act 2003 , family life under Article 8 of the European Convention on Human Rights and oppression by reason of passage of time in section 14 of the 2003 Act .

3. The second warrant describes the alleged offence as the appellant having in September 2007 misappropriated or embezzled a car, in that without the permission of GE Money Bank SA he transferred it, when entrusted to him, to someone else on 7 October 2004. The warrant mentions that he did that while he had been previously sentenced to other offences. The maximum sentence for the offender is said to be 7 years and 6 months.

4. The appellant's case is that he signed over the car to his employer. At that stage the payments were discontinued, but his claim was to have kept up his payments for 3 years.

5. Miss Farrant advanced a disproportionality argument which at first blush seemed persuasive. She contended that since the appellant said he paid the bank for 3 years, that coupled with the depreciation in the value of the car meant that the offence, while not trivial, did not reach the seriousness threshold in section 21 A. Moreover, she said, the loser in this case was the bank. She underscored the fact that the appellant did not know anything of this allegation, which occurred some 8 years ago.

6. The decision of Miraszewski v District Court in Turon, Poland [2014] EWHC 4261 (Admin) explains how the court should apply the section 21 A proportionality test. Reference is there made to the guidelines issued by the Lord Chief Justice. Pitchford LJ states that these are a floor rather than a ceiling for the assessment of the seriousness of offending under section 21 A, and that they were deliberately aimed at offences at the very bottom of the scale, about which there was unlikely to be any dispute: [28]. When the matter came to court the judge had an unfettered discretion to decide the issue by application of the statutory criteria:[28]. The judge might well decide that an offence is not so serious, even though it does not fall within the categories in the guidance. The judge has the responsibility for weighing the relevant factors for himself:[28].

7. Miss Farrant's submissions, as I have said, were persuasive at first blush. However, they no longer have that character in the light of my reconsideration of this aspect of the appeal. Even if the appellant had kept up payments for 3 years, there is no indication of the loss the bank would suffer. The depreciation in the value of the car seems to me to be an irrelevance given that under his hire purchase or finance agreement the appellant would have agreed to pay a certain sum irrespective of how the value of the car depreciated over time.

8. I accept the submission that I should take into account the discretion which the Divisional Court in Miraszewski identified. Nonetheless, it seems to me that this offending still has an element of seriousness. Thus I do not find that the District Judge was incorrect in his decision that it would not be disproportionate under section 21 A to extradite him.

9. Miss Farrant made cogent and detailed submissions in relation to both Article 8 and section 14 . She explained the difficulties that the family of six children would face on the appellant's extradition to Poland. She underlined the vulnerability, in particular, of the younger children and the role that the appellant plays in their lives, albeit that he has now separated from the mother. The evidence, which is not contradicted, is that he lives close by and until his arrest had played an important part in the family's life, not only in terms of emotional and moral support but also in a practical and financial way.

10. However, it seems to me that given that the appellant is now to be extradited under the conviction warrant the balance in relation to Article 8 changes, as does consideration of oppression in section 14 . The reality is the impact of extradition under this second warrant is much diminished since the appellant will be extradited to Poland to serve a sentence of imprisonment of 1 year and 2 months' imprisonment in the near future under the first warrant. If there were any doubts about how the balance came out prior to the decision refusing permission to appeal on the first warrant, they now fall away. It is clear to me that applying the analysis required by Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin) , Article 8 does not operate as a bar to the appellant's extradition. Nor can I conclude that it would be oppressive to extradite him by reason of the passage of time. Given the fact of the appellant's extradition under the first warrant there is no need to go into the detail.

11. Extradition must take place and this appeal is dismissed.