Gudzelak v Judicial Authority In Krosno, Poland [2012] EWHC 1764 (Admin)

Case No CO/3585/2012[2012] EWHC 1764 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 31 May 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LLOYD JONES
Between
GUDZELAKAppellantv
Between
JUDICIAL AUTHORITY IN KROSNO, 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)
for The Appellant did not attend and was not representedMiss H Hinton (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: This is an appeal by Mr Marek Gudzelak against the decision of Senior District Judge Riddle sitting at Westminster Magistrates' Court on 30 March 2012 ordering his extradition to Poland. Mr Gudzelak has been and remains on bail. One of the conditions of bail is that he should reside at an address in Portsmouth. I have before me a copy of a letter dated 17 April 2012 sent by the Administrative Court Office to Mr Gudzelak at that address. Mr Gudzelak has not attended court this morning. I am satisfied that he has been notified of the hearing today, and in those circumstances I propose to proceed to hear the appeal. (Submissions were heard)[2]MR JUSTICE LLOYD JONES: The extradition of Mr Marek Gudzelak is sought by the Regional Court in Krosno, Poland, on a European Arrest Warrant issued on 25 October 2011 and certified by the Serious Organised Crime Agency on 22 December 2011.[3]The appellant's extradition is sought for the purpose of executing a custodial sentence in respect of one offence of robbery, for which a term of 1 year and 6 months was imposed by the Court in Przemysil on 3 September 1996, of which 11 months 25 days remain outstanding to be served. The warrant indicates at Box D that the appellant was present when he was convicted, and there is no challenge on that ground.[4]On 30 March 2012, his extradition was ordered by Senior District Judge Riddle, sitting at Westminster Magistrates' Court. He gave a full written ruling of his decision. The appellant filed his Notice of Appeal with the Administrative Court on 4 April 2012 and sealed copies were served on the Crown Prosecution Service. They were received by the Crown Prosecution Service on 5 April 2012.[5]The appellant was unrepresented during the proceedings before the Westminster Magistrates' Court, other than at an initial hearing when he was represented under the duty solicitor scheme. The district judge records that the appellant accepted that he would be representing himself at the extradition hearing. There is before the court a typed note of his evidence. It had been understood that Mr Gudzelak would be representing himself on the hearing of this appeal. I am satisfied, for reasons that I have already given, that he was notified that the hearing would take place today. He has not attended. It is now 1 pm. The case has been called on and there has been no response. I am satisfied that the Administrative Court Office has, by letter, notified him of today's hearing, that letter having been sent to the address at which he is required to reside as a condition of his bail.[6]The first ground on which Mr Gudzelak relies is passage of time. Section 14 of the Extradition Act 2003 establishes that extradition can be barred by virtue of the passage of time if it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or, as in this case, since he is alleged to have become unlawfully at large.[7]The meanings of "unjust" and "oppressive" are well established, the law remaining as formulated in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 in the speech of Lord Diplock. That interpretation was affirmed by the House of Lords in Gomes & Goodyer v Trinidad and Tobago [2009] 1 WLR 1038. Moreover in that case, the House also addressed the test of oppression (Lord Brown at paragraph 31):
"The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of s.82. This is, of course, touched on in the first sentence of Diplock para 1. And, so far as concerns oppression, it is worth noting too Lord Diplock's statement (at p284) that: 'the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive'. That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough."
[8]The statement relied on by Mr Gudzelak below states that he came to the United Kingdom in 2004. He accepts that he was aware of this outstanding matter in Poland at that time. He says that he came to United Kingdom to earn money and start a new life, as he did not have such a chance in Poland. He says again that he knew of this matter. He made an application when he left prison. He had six months' leave granted. He applied again for another six months. He did not receive any response. He came to England. He did not know what happened. He did not receive any correspondence from Poland.[9]The district judge concluded on the basis of the appellant's evidence and the information provided by the Polish requesting authority that it was clear that the appellant is a fugitive from Polish justice. Having been given temporary release from prison on compassionate grounds in 2004, he failed to comply with his obligations and, instead, left the country and travelled to the United Kingdom.[10]He says that he applied for a second deferment of sentence. The district judge found that whether or not that was the case, none was granted. Furthermore, the district judge concluded that extradition would give rise to hardship in his case, but would not be oppressive.[11]I am satisfied that the appellant was present when he was convicted. Furthermore, when he came to the United Kingdom he was aware that there was still a substantial part of this prison sentence remaining to be served. I am satisfied that he was made aware of the consequences of non-compliance with the conditions. Furthermore, he did not depart from Poland with the knowledge of the Polish authorities. Accordingly, I conclude that he is a fugitive from justice, and he is not entitled to rely on the passage of time for the reasons given by Lord Brown in Gomes & Goodyer v Trinidad and Tobago. In addition, I am satisfied that in the particular circumstances of this case it would not be oppressive to order his return.[12]The second ground on which the appellant relies is Article 8 of the European Convention on Human Rights. Here it is clear from Norris v Government of the United States of America [2010] UKSC 9 that it is 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.[13]Here, Mr Gudzelak explains in his evidence before the district judge that since coming to United Kingdom alone he has found a partner whom he met in 2006. They have two children, an 8-year-old daughter and a son who is 2 1/2. The 8-year-old goes to school. They have a home, they pay rent. He works as a supervisor for a marketing company and has held this job for over five years. He says that he does not know what would happen if he were extradited. He says he is responsible for paying all the bills. He says that his current partner is Latvian. He explains that he looks after his son when his partner works. He adds that his partner and both of the children are in good health.[14]The district judge concluded that the grounds relied on here came nowhere near reaching the threshold of Article 8. He also considered whether the physical or mental condition of the appellant was such that it would be unjust to extradite him, and concluded that it would not. In his view, extradition was compatible with his Article 8 rights.[15]I entirely agree with the conclusion of the district judge. The facts as presented by the appellant come nowhere close to reaching the threshold required under Article 8. The appellant does not satisfy the high test in Norris. There is no exceptionally compelling feature or combination of features which would make it disproportionate to order his return to serve the balance of his sentence. In those circumstances, the appeal will be dismissed. MISS HINTON: My Lord, I am very grateful.