UK national wanted for £2.3 million Polish VAT fraud loses appeal against extradition

About this case:

• Citation:
  [2023] HCJAC 36
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

It was argued by appellant AH that it would not be appropriate to try him in Poland, as a substantial part of the relevant activity listed in the charges took place while he was in the UK. He also sought to rely on a notable change in behaviour by his teenage son, RH, since the making of the order, as demonstrating that his extradition would be oppressive.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Doherty and Lord Boyd of Duncansby. Loosemore, advocate, appeared for the appellant and C Edward, Crown Agent, appeared representing the Polish authorities.

Tipped the balance

On 18 October 2018, the Polish judicial authority issued a European Arrest Warrant which narrated three VAT offences said to have been committed in locations throughout Poland in a period from December 2013 to March 2014. Each offence is said to have involved the applicant’s participation in an organised criminal group which contained at least three other persons, and the sum involved was PLN 11,813,488, approximately £2.3 million.

Following the appellant’s arrest in Edinburgh, he admitted to being the person referred to in the EAW but did not consent to extradition. He argued that his extradition would be barred by reason of forum, because it would be unjust or oppressive due to the passage of time, and that it would be incompatible with his rights under Article 8 ECHR and those of his 17-year-old son, RH. In June 2023, the sheriff held that extradition was not barred on those grounds.

In seeking leave to appeal, it was submitted that the sheriff erred in failing to hold that it was in the interests of justice that extradition not take place, and in finding that the threshold test under the Extradition Act 2003 had not been met. The sheriff had also failed to have appropriate regard for the fact that RH would be separated from the appellant for a lengthy time.

Additionally, an affidavit was sent to the court stating that RH had reacted badly to the news that the order had been made and had started taking drugs and not going to work. Had evidence from a doctor who assessed RH been made available to the court at the time of the extradition hearing, that evidence would have tipped the balance further in favour of oppression.

Strong public interest

Lord Doherty, delivering the opinion of the court, said of the forum bar argument: “The EAW contains no allegation of any relevant activity in the United Kingdom. In his evidence the applicant did not maintain that he had performed anything described in the EAW within the UK. The sheriff was not convinced that the test in section 19B(2)(a) was satisfied. That was largely a question of fact for him. We are not persuaded that he was wrong to conclude as he did.”

He continued: “Whether or not the applicant could be tried together with other co-accused, there are clear advantages in all prosecutions taking place in Poland. The witnesses are Polish and they live there. The documents are in Polish and are in Poland. The sheriff was entitled to conclude, as he did, that it would be more desirable and practical for the witnesses to give evidence from their home country and be examined in their own language.”

Turning to the passage of time and the effect on RH, Lord Doherty said: “The sheriff held that it would not be oppressive to extradite the applicant by reason of the passage of time. The most material change had been the development of his role as a carer and mentor for RH. It is clear that the sheriff gave anxious consideration to the evidence relating to that, and to the likely devastating effect on RH were the applicant to be extradited.”

He went on to say: “The sheriff concluded that, though the effects on RH of extradition are likely to be devastating, his Article 8 rights are outweighed by the strong public interest in giving effect to the request for extradition: and that the interference with those rights is justified and proportionate. In our opinion that was an evaluative judgement that he was entitled to make. No error has been demonstrated.”

Lord Doherty concluded: “The additional evidence points to an adverse reaction by RH to the making of the extradition order; to him having developed signs and symptoms of clinical depression; and to there being a mild risk of self-harm, with a risk of that escalating significantly if extradition occurs. In our judgement that is not materially different from what was anticipated at the time of the extradition hearing. The new evidence would not have resulted in the sheriff deciding that extradition would be oppressive because of the passage of time, or that it would not be compatible with RH’s Article 8 right.”

The appeal was therefore refused.