Brand, R (on the application of) v Regional Court In Krakow [2012] EWHC 379 (Admin)

Case No CO/10822/2011[2012] EWHC 379 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 8 February 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF BRANDClaimantv
Between
REGIONAL COURT IN KRAKOWDefendant
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 Claimant appeared in person (assisted by an interpreter, Ms Maria Dasek) for in personMr A Harbinson (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal by Mr Brand against a decision of District Judge Grant, given on 3 November 2011, whereby he ordered that the appellant be extradited to Poland. The extradition request was in order that he serve the balance of a number of sentences, totalling 3 years' imprisonment, amounting to some 2 years.[2]The offences were committed as long ago as 2001. There were a large number of offences of dishonesty and, as the sentence indicates, the matter was serious. He was involved with others. He said at the hearing before the district judge, according to the judgment that I have a copy of, that he could not recall a number of the offences. As the district judge said, that was perhaps not entirely surprising having regard to the large number of such offences.[3]He raised, and raises before me, two grounds. First, he says that the prison conditions in Poland were such as would breach his human rights. Secondly, he has now been in this country for a considerable period of time, slightly on and off in the sense that he has been back to Poland on occasions, even, he says, when the warrant for his arrest was in existence and nothing was done about it. Essentially he has been here for some five years, working here and having a partner, who is herself Polish, and two young children. It is the effect on his partner and children, for whom he is of course the breadwinner, that he says would be a breach of Article 8 of his right to family life.[4]So far as the prison conditions point is concerned, I do not doubt that the conditions in Poland are substantially less pleasant than those in this country. However, there have been a number of authorities dealing with the question which has been raised in a number of cases in the past about the prison conditions due to overcrowding and a degree of violence used against prisoners. He says he is a man who does not look as if he finds it easy to stand up for himself, having regard to his build, and he suffers from a condition which means that he is the more vulnerable. I need not go into the details: I have seen the medical report which explains what that condition is. In those circumstances, he says that the conditions in Poland are such as would breach Article 3.[5]The authorities make clear, indeed the law makes clear, that the threshold for such is high. One must also bear in mind that Poland is a signatory to the European Convention on Human Rights. He does not raise any special matter in the sense that there is any reason why he in particular, other than the matters I have referred to, should be in any way targeted, or that it would not be possible for the authorities to take steps to ensure that he was not treated in a way which gave rise to concern that there would be serious ill-treatment which fell within Article 3. The district judge dealt in some detail with the Polish prison grounds, he described them as such, and referred to the relevant authorities. I need do no more than say I entirely agree with his judgment in respect of that.[6]I turn, therefore, to Article 8. One must bear in mind that he is to serve a substantial sentence imposed for considerable criminal activity, albeit now some time ago. He tells me that it took until 2005 for the investigations into the offences to reach a conclusion. He says that he then attended the court, but no final decision was made, and it was not until April 2008 that the court eventually convicted and sentenced him.[7]According to the judgment of the district judge, he did not attend the final hearing. What

the judge said, and I quote from his judgment, is:

"Proceedings were concluded in 2008 and on his own evidence the Requested Person absented himself from the final hearing and has made scant effort to discover the sentence of the court or to take measures to appeal against sentence despite being legally represented during the proceedings."
[8]That is contrary to what he has told me, namely that he did attend the hearing in 2008, that he was sentenced, as he knew it, to 3 years, and that that sentence was not immediately effective, which is apparently the practice in Poland, because unlike in this country the sentence does not take immediate effect. According to the warrant, it took effect on 15 April 2010. He says that that is not the case, but in any event he was at the hearing but then came to this country.[9]It is not for me to decide, on what I have heard, what is the true position, but he did give evidence below. Presumably that evidence was given on oath, and it perhaps should carry somewhat greater weight than what he now tells me in this court. But it is not determinative. The fact is he knew, he says, that he was sentenced to 3 years; he knew that that sentence, less of course the period he spent in custody while on remand, would have to be served; and he has since then avoided such service, even though he says he has been to Poland, for example, in 2008 for a period of time when he and his family went there. I think it was for the purpose of some sort of treatment, and he also went in 2009, he says, to his grandmother's funeral.[10]The question I have to ask myself is whether the extradition would now be proportionate. I appreciate that he has a family, he has young children, and there will be difficulties for them as there always is when a parent commits serious offences and is sentenced to a substantial period of imprisonment. But that is not, by itself, a good reason to say that someone can stay in this country and avoid the imprisonment which has been imposed in the country of his nationality.[11]It seems to me that there is no reason in principle why this family should not go to Poland. They choose to stay here; that is a matter for them. In order to comply with the obligations under the system of European Arrest Warrants, it is necessary to ensure that criminals do serve such sentences as are considered proper by the state which imposed them, unless, as I say, there are good reasons for taking a different view on the individual circumstances of a case.[12]I appreciate that the Supreme Court is considering essentially whether the position of children should be given a greater weight than it has perhaps hitherto been given following the decision of the House of Lords in Norris v United States. The question is whether that should be modified having regard to the immigration cases which deal with the position of children. There is a difference if children who are citizens of this country are affected. In immigration cases that is frequently the position because there has been a marriage to, or a partnership with, a British citizen, which means the children take British citizenship. That is obviously an important factor.[13]These children are Polish. Their mother and father are Polish. They are here because their parents have decided that they have a better life in this country than they would have for various reasons in Poland, in particular, of course, because there is a sentence to be served. True, the appellant raised before me the request that he be allowed to serve his sentence in this country. That is not a matter for me, it is a matter for an application to be made to the Ministry of Justice here and to seek approval, although I am bound to say I would be very surprised in all the circumstances if such approval were obtained.[14]All in all, I am entirely satisfied that, even applying the lower threshold regarding proportionality as a matter that I have to consider having regard to the circumstances in which extradition is sought, and the fact that there has been serious offending leading to a substantial sentence, I am afraid that this is a case in which removal would be proportionate. Accordingly, I must dismiss this appeal.[15]THE INTERPRETER: Mr Blunt has forgot to mention that he's got a credit which he has to pay off in the bank. What can he do in that?

MR JUSTICE COLLINS: Sorry?

[17]THE INTERPRETER: He's got a credit, bank, probably bank loan. Bank loan.[18]MR JUSTICE COLLINS: He will have to make such arrangements as he can with the bank about that. I am sorry. Obviously the bank will not be able to enforce very much if he is not here.