Zajaczkowski v Sad Rejonowy W Malborku Poland [2011] EWHC 2433 (Admin)

Case No CO/5450/2011[2011] EWHC 2433 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 2 September 2011
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SILBER
Between
ZAJACZKOWSKIAppellantv
Between
SAD REJONOWY W MALBORKU POLANDRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Appellant appeared in person (assisted by an~interpreter) for in personMr J Stansfeld (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE SILBER: MrZajaczkowski, the appellant, appeals against an order made by District Judge Evans at the City of Westminster Magistrates' Court on 9 June 2011, by which he acceded to a request from the District Court in Gdansk, Poland, for the extradition of the appellant pursuant to a European arrest warrant. This warrant had been issued on 3 August 2010. Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 and therefore part 1 of the Act applies.[2]The background is the appellant was arrested on 11 January pursuant to the warrant. He appeared before the City of Westminster Magistrates' Court on 12 January 2011. His extradition was adjourned on five occasions. On 9 June 2011, he was represented by a solicitor and, following an uncontested extradition hearing, his extradition was ordered. The court's attention was drawn to the fact that the appellant is a father to a 5-year-old son, and he was unaware of the fact that the sentence had been activated.[3]The sentence which is the subject matter of the extradition request is a 2-year sentence, which was imposed following the appellant's conviction for three offences. The first was on 7 June 1999 in Dzierzgon and Malbork. He jointly with others introduced into circulation counterfeit banknotes with a face value of 50 Zloty. The second was on 7 June 1999 in Dzierzgon. He was in possession of 71 counterfeit banknotes with a face value of 30 Zloty. Third, on 7 June 1999 in Dzierzgon, he presented as his own authentic licence a false driving licence which he had altered. For those offences, the Regional Court in Malbork Criminal Division on 22 August 2010 imposed a 2-year sentence of imprisonment, which remains outstanding.[4]The appellant filed a notice of appeal. He has appeared in person today and he accepts that he has no legal right to be here, in the sense that although he would like to remain in this country, he accepts he has to return to Poland. I ought to say that there are very powerful grounds as to why his appeal would have to be dismissed. Under section 26 of the Extradition Act, a notice of appeal has to be given "before the end of the permitted period, which is seven days starting with the day on which the order is made" (subsection 3).[5]The House of Lords held in the case of Mucelli v Government of Albania and Moulai v Deputy Public Prosecutor of Creteil, France [2009] 1 WLR 276 that the giving of the notice for the purpose of section 26 required the notice to be both filed and served within the period. It was also held that the courts had no power to extend the time for giving notice, with the result that the failure to serve the notice of appeal within the prescribed 7-day period means that there is no valid appeal.[6]In this case, a witness statement has been served by Miss Natasha Draycott, a barrister seconded to the Crown Prosecution Service Extradition Unit, which shows that the appellant's notice must have been served not earlier than 16 or 17 June 2011. She explains that the Extradition Unit's copy of the appellant's notice contains dates. There is a date of the 16th and there is a date stamp of 17 June 2011. That latter one shows the date it was received by the Special Crime Division, which contains the extradition notice. It therefore is clear evidence that the notice was served on the 16th. Extradition was ordered on 9 June 2011, and therefore the seventh date from service would have been 15 June 2011. In those circumstances, it had not been put forward at the required time period. For those reasons, the extradition appeal is not valid and the court has no jurisdiction.[7]I add that the other grounds upon which reliance has been placed by the appellant have no validity to them. The appellant has sought to seek adjournments so as tosee if he can compromise this matter, but it has been made very clear in this court in the case of Baghishyan v District Court In Zamusc Poland [2011] EWHC 1297 (Admin) by Ouseley J in paragraph 5, which states:
"5. The ground he raises for an adjournment is a common enough point in Polish cases: that an attempt is being made to appeal a decision or sentence, or quash a decision, or compromise the proceedings in some way. Save in the most exceptional circumstances where there might be a delay of only a day or so, this court does not adjourn proceedings so that possible compromises can be awaited. To do so would be to introduce a bar to extradition by the side wind of an adjournment, contrary to the provisions of the Extradition Act, which set out what are the statutory bars to extradition. It is not for the court to make so large an exception to the normal operation of extradition."
[8]This shows that the court should not continue to adjourn proceedings.[9]The next point that has been taken was that the case was decided in the absence of the appellant, and under section 20 of the Extradition Act, if that is the case that can, in certain circumstances where theperson concerned has indeed deliberately absented himself from trial, be ground for refusing to grant extradition.[10]It is quite clear that if one looks at box D of the European arrest warrant that this is crossed out, and that indicates the appellant was present at his trial and conviction. In any event, if a suspended sentence is activated, that does not amount to a conviction for the purposes of section 20, as has been explained in the case ofBaksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin).[11]The final point that is made is that the appellant and his partner have a young daughter and he has established a family life within the United Kingdom, and that he has spent eight years working here and he has adduced impressive references. There is a very high threshold that has to be met by a requested person for extradition to be refused because of his family rights under Article 8 of the European Convention. In Norris v Government of United States of America [2010] UKSC 9, Lord Phillips of Worth Matravers, giving a speech with which other members agreed, explained that:
"56. The reality is that 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."
[12]There is nothing in this case which comes within that category. Therefore, for all those reasons, and stressing again the position taken by the appellant, this appeal must be dismissed and I thereby dismiss it.[13]Thank you very much.