Sondy v Crown Prosecution Service [2010] EWHC 108 (Admin)

Case No CO/6438/2009

[2010] EWHC 108 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Tuesday, 12 January 2010

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE AIKENS

MR JUSTICE OPENSHAW

Between

JANUSZ SONDYAppellant

Between

CROWN PROSECUTION SERVICERespondent

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MR B KEITH (instructed by Lawrence & Co) appeared for Appellant

MISS R HILL (instructed by Crown Prosecution Service) appeared for Respondent

J U D G M E N T

[1]MR JUSTICE OPENSHAW: This is a statutory appeal against the decision of District Judge Riddle sitting at the Westminster Magistrates' Court on 17 June 2009, by which he ordered the appellant's extradition to Poland. The appellant is now aged 49. He is a Polish national. Poland is of course a Category 1 territory. As long ago as 24 April 1995, the appellant was convicted in Poland of robbery, the particulars being that on 10 February 1992 he robbed a man of two bottles of wine. He was sentenced to a total of 11 months' imprisonment. He did not attend the final hearing, but notice of the hearing and of the finding was served upon him. He had already served some time on remand, which counts towards his sentence, but he still has nine months and 24 days left to serve.

[2]On 28 September 1998, on his application, the court in Poland ordered that the sentence was postponed for six months, on account of his ill health, but, at the conclusion of that period of six months, he did not surrender to custody because he had disappeared. On 4 February 2005, the appellant, by his legal representatives in Poland, sought from the court in Poland relief which has been translated as being:

"A respite from the penalty of the deprivation of liberty."

Six weeks later, on 22 March, that application was refused. There may have been other applications to like effect with the same result.

[3]On 14 June 2007, a European Arrest Warrant was issued by the judicial authority in Poland seeking his return to Poland to serve the outstanding part of the sentence. On 3 June 2008 that warrant was certified by the Serious Organised Crime Agency in the United Kingdom. The appellant was arrested on 6 May 2009 in London. The following day, 7 May 2009, there was a preliminary hearing before the magistrate at Westminster. The appellant was represented. It was intimated on his behalf that the possible defences to the application for extradition were the passage of time and incompatibility with his Article 8 rights. The solicitors then acting for him prepared a short proof of evidence from him. I read from that proof. The paragraphs are unhelpfully not numbered. He dealt with the Article 8 point in this paragraph:

"My mother-in-law, the woman that I care for, would not be able to cope if I was sent back to Poland. She is on several courses of medication to help her with a number of health problems. To name a few, she suffers from diabetes, heart problems, depression, bad eyesight, and a very limited mobility. She has upcoming appointments for examinations of her eyes and lungs with a view to further operations. She is reliant on me for 24 hours a day. It is important to her that her carer is a family member, as I can give her the time and attention that an appointed one would not be able to give. On one occasion I woke up in the night to find that she had turned the gas on in the kitchen and had forgotten about it. She quite clearly needs regular supervision from a member of the family whom she trusts. The stress of these proceedings on her, have already made her faint several times."

The point was made clear in a skeleton argument filed by a barrister employed by the solicitors who appeared on his behalf. That skeleton argument, prepared for the hearing on 11 June 2009, contains at paragraph 9 this statement of his case. It is headed "

Article 8 ECHR

"The Defendant's extradition to Poland would result in a flagrant denial of his right to respect for his family life enshrined in Article 8 of the European Convention on Human Rights ('ECHR') under section 21(1) of the Extradition Act 2003. The Defendant is the registered carer for his mother-in-law who suffers from diabetes, depression, poor eye sight and very limited mobility."

It is clear from the respondent's attendance notes that both the proof of evidence and the skeleton argument were put before the magistrate.

[4]When the matter came back before the court on 8 June 2009, counsel acting on the appellant's behalf expressly abandoned any point relying on Article 8. No doubt counsel took the view that the circumstances there described did not begin to meet the very high threshold which must be crossed before serving to prevent an extradition. I might add that that assessment of the position seems to me to have been entirely correct.

[5]Mr Keith, on the appellant's behalf, has argued before us today that this decision was wrong and that it was taken without proper instructions. He argues that there was sufficient evidence to justify mounting an argument based on the Article 8 point. He says that counsel was negligent not to have pursued the point and quite wrong not to have done so without clear instructions. These are very serious allegations.

[6]The appellant has made a further statement in which he makes these and a number of other criticisms of those who acted before him at the original hearing and indeed the subsequent appeal. No notice of these criticisms has been given to the lawyers concerned and they have not properly and formally been asked for their response. Furthermore, although the appellant might be deemed to have waived privilege, he has not expressly done so. In my judgment, the practice commonly followed in the Court of Appeal Criminal Division should have been followed here; the appellant should have been formally invited to waive his privilege and, whether he did so or not, the lawyers should have been asked by the court to deal with the points made against them, having regard to whether privilege has been waived or not. If the appellant did not waive privilege, then of course an adverse inference could in any event be drawn against him. But none of that was done here. The result is that his allegations against them cannot properly be tested or challenged. This seems to me to be entirely unsatisfactory. Appeals cannot proceed on the basis of untested and speculative assertions of this kind.

[7]I revert to the narrative of events. On 8 June 2009, the case was adjourned to allow further investigation to be made of the other point taken, namely that the extradition was barred by the passage of time. The requesting State did provide further information as to the chronology of the case, which I have already set out. In the light of that further information, when the case finally came on for hearing on 17 June 2009, the passage of time point was again also abandoned. There was therefore no defence to the application for extradition put forward at the hearing, and the order for extradition was made without further argument. In the circumstances then prevailing, the magistrate had no choice but to make the order. There is no note of his judgment, but his decision, as I have already indicated, was inevitable.

[8]Five days later, by a notice dated 23 June 2009, having instructed new solicitors, the appellant sought to appeal that decision. The grounds then put forward were as follows, and they were put forward in the these terse terms:

"Section 14 of the Act, the passage of time; and section 21 of the Act, human rights, and in particular Article 8."

There was no more. The notice said that full grounds would follow within 14 days. No such further grounds were ever filed.

[9]The case has come before this court on a number of previous occasions. Time for the hearing was extended in August. On 15 October, solicitors acting for the appellant successfully applied to come off the record. It seems they had had difficulty in obtaining instructions. The proceedings were adjourned for a further week. On 21 October, this court ordered that any fresh evidence should be lodged within 21 days, supported by a skeleton argument.

[10]Mr Keith now seeks to rely upon what he calls fresh evidence. The further evidence relied upon is another statement from the appellant which was unsigned until only yesterday. In his new statement, the appellant sets out the various complaints against his former solicitors and counsel, to which I have already referred. He then returned to the condition of his mother-in-law. This is at paragraph 45, and I will read paragraphs 45 to 51:

"45. I am the sole carer for my mother-in-law, who is a very ill lady. My mother-in-law lives with me and I provide 24-hour care for her. "46. Although there are other members of my family in London, they have their own families, children and they are unable to provide my mother-in-law with the level of care that she requires. "47. My mother-in-law suffers from heart problems, circulation problems, diabetes and thickening of the blood. She also suffers from depression, anxiety, and insomnia. She requires 12 types of medication and insulin injections twice each day. "48. My mother-in-law is unable to do her own shopping because she can not walk very well at all. "49. In addition to her medical condition, my mother-in-law needs me to be here in England with her because she does not understand English or Polish. She only understands a dialect of a Roma Gypsy language. No interpreters are available to interpret between English and that dialect. "50. This means that my mother-in-law would not be able to communicate with her doctors and would not receive the treatment she requires as a result. In addition, if she develops any further medical problems, she would be unable to discuss them with her doctor. "51. Social services are not and never have been involved with my mother-in-law's care. In any event, she would not trust anyone else to give her medication and provide the care that I do."

[11]The question now arises whether we should even entertain these new grounds. The relevant sections of the Extradition Act are sections 26 and 27. The critical passage is at section 27(4), which reads as follows, that the court may allow the appeal if, but only if:

"(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; "(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; "(c) if he had decided the question in that way, he would have been required to order the person's discharge."

The relevant principles were set out in the Fenyvesi case, that is Szombathely City Court v Fenyvesi

[2009] EWHC 231 (Admin)

. I read a short passage from the judgment of the President, Sir Anthony May, at paragraph 32:

"In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained."

In that case, the application to adduce further evidence was made by the requesting state. The later case of Kalniets v District Court of Ogre in Latvia

[2009] EWHC 534

made clear that the same principles apply to applications by the person ordered to be extradited. Indeed, in that case an attempt was made to adduce fresh evidence on the grounds, it was claimed, that it had not been done before due to the incompetence of his former solicitors. Mr

Justice Sweeney dealt with that point at paragraph 18, which reads as follows:

"No witness statement is advanced to explain why the proposed fresh evidence was not advanced, as it should have been, before the District Judge. The speculative suggestion that it might have been the fault of the appellant's then lawyers carries little or no weight. Judged against the principles enunciated in the Fenyvesi case, this case therefore falls, factually, at the first hurdle and cannot, in terms of section 27(4)(a) of the 2003 Act, succeed."

[12]In my judgment, here all the evidence concerning the condition and circumstances of his mother-in-law was indeed available at the original hearing; most of it was in fact in the statement which he made at the time, which I have already read. It is properly conceded by Miss Hill on behalf of the respondent that there have been further visits by the appellant's mother-in-law to the doctor since that time, and indeed some further conditions have been diagnosed, but these points do not add greatly to the total of her incapacity as it existed before the hearing. We now have copies of her medical notes but these would have been available at the time had anyone asked for them, and their contents were correctly summarised in the proof of evidence to which we have referred. I might point out that even now, there is no medical report spelling out precisely how it is alleged that his mother-in-law's ill health would suffer if he were to be returned to Poland, nor is there any substantial support for his claim that alternative care cannot be found from within the family or within the community or from social services, nor is it clear why, during the nine months of his imprisonment, his mother-in-law could not return to Poland where there would no doubt be support from other members of the family. In my judgment, the substance of this matter was available at the time of the hearing before the magistrates, and indeed was put in statement form at the time.

[13]I do not think that there is here any significant evidence which was not available at the time. In my judgment the criteria of section 27 are not met and, accordingly, in my judgment, this appeal also must fall at the first hurdle and it must therefore fail.

LORD JUSTICE AIKENS: I agree that this appeal must be dismissed for the reasons that have been given by my Lord. I also agree specifically with the remarks made by Mr Justice Openshaw on the procedure that should, if possible, be adopted in circumstances where an appellant in an extradition case, who is a potential extraditee, asserts on appeal that an argument was not made or that evidence was not adduced before the lower court as a result of professional negligence or some other professional misconduct by those representing the potential extraditee before the lower court.

[15]Are there any applications?

[16]MR KEITH: My Lord, two. Firstly, for a detailed assessment of Legal Aid costs. The second, my Lord, is one further piece of information which we received over lunch time, which was a call from the appellant's Polish solicitor, who says that the hearing has been heard in Poland and that the outcome of that is that it has been remitted to another court for, we believe, the extradition warrant to be withdrawn. The date of that hearing, my Lord, is 28 January of this year. Accordingly, my Lord, I would ask that time for extradition be extended to the ten-day period starting 2 February, under section 36(3) of the Extradition Act 2003, so that if that is withdrawn, we can come back before the court effectively to withdraw the matter administratively.

[17]In any event, my Lord, it is unlikely, because of the practicalities, that Mr Sondy will leave the UK for a month. I think my learned friend agrees with that position at this stage.

[18]MISS HILL: That is right. Your Lordship may be aware that the ordinary procedure for removing Polish defendants from the jurisdiction is on a military flight which comes every couple of weeks. I know that because of the snow those have been shifted back. So the flight at the end of this month, which would be the flight Mr Sondy would ordinarily be on, is full, and it is therefore very possible that we would need to come before this court to apply for an extension of time for his removal, in any event. In all the circumstances, I would therefore agree with Mr Keith's application and ask the court, using its power under section 36(4), to set the date of extradition to be ten days commencing on 2 February.

LORD JUSTICE AIKENS: You want the date of the extradition to be set at?

[20]MISS HILL: Ten days as of 2 February.

LORD JUSTICE AIKENS: Why do you say ten days after? Why can't you just say 12 February?

[22]MISS HILL: Because the Act provides that there is the appeal period, in this case 14 days, and ordinarily removal must take place within the ten days thereafter --

LORD JUSTICE AIKENS: I see, so you want it to be within the ten days following?

[24]MISS HILL: Within the ten days following 2 February, that being a later date, I hope (inaudible) judicial authority. That will allow, should the warrant be withdrawn, for us to come to court and for Mr Sondy to be discharged, and it will also ensure that if there are the practical difficulties which I anticipate, we will not need to come back and make an application to extend time.

LORD JUSTICE AIKENS: Thank you. We will make that order.

[26]MISS HILL: I am grateful.

LORD JUSTICE AIKENS: Are there any other applications?

[28]MR KEITH: My Lord, no.