Jackowski, R (on the application of) v Regional Court In Ostroleka [2012] EWHC 3935 (Admin)

Case No CO/10478/2012Case No CO/8450/2012[2012] EWHC 3935 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 14 December 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF JACKOWSKIAppellantv
Between
REGIONAL COURT IN OSTROLEKARespondent
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 7831 8838(Official Shorthand Writers to the Court)
Mr Fidler (instructed by Stephen Fidler & Co) appeared for AppellantMr Hearn (instructed by Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: There are before me two appeals under Section 26 of the Extradition Act 2003 against two separate decisions of district judges directing the return of the appellant to Poland, in one case to serve sentences which have been imposed for various offences and in the other to face trial for a separate offence. The basis of both appeals has been that the warrants in each case amount to an abuse of process because he had been returned to Poland on a previous warrant and these offences in the one case and convictions in the other should have been dealt with when he was in Poland. The authorities ought to have appreciated that these matters were outstanding. It is therefore not only an abuse but oppressive to require the appellant now to be returned now.[2]I should therefore set out the history which has led to this state of affairs. The appellant came to this country, it would seem, probably some time in 2009. He had been then convicted of the offences which are the subject of the conviction warrant before me, namely two robberies, a burglary and fraud, all committed (in the case of the burglary) in November 2004 and (in the case of the two robberies) in the summer of 2005 and (the fraud) in August 2005. He had been sentenced to a total of four years' imprisonment. It seems that the whole of that sentence was standard. Those offences - as to three of them - were committed in Warsaw and one in Pultusk (wherever precisely that is).[3]The warrant which led to his return to Poland was issued by the Regional Court of Ostroleka in Poland in May 2010. It was to secure the appellant's extradition to enforce an outstanding custodial sentence of seven months and 28 days for an offence of criminal damage which itself had been committed in Pultusk in December 2008. He was extradited on that warrant. He served the sentence which was outstanding. He was released on 4 June 2011.[4]Five weeks later he returned to the United Kingdom in July 2011. He had no problem leaving Poland. It is not suggested he left in any way clandestinely.[5]It seems that the relevant authorities were unaware of the outstanding matters. In fact, the third warrant, that is the accusation warrant, related to an offence of a serious assault said to have been committed on 10 May 2009 in, again, Pultusk, Poland. It seems that that alleged offence was committed shortly before the appellant first came to this country. A point which Mr Fidler particularly relies on is that the place of the offending, namely Pultusk, is common to one of the conviction warrant offences, to the accusation warrant offence and, in addition, to the conviction warrant offence for which he was returned to Poland in 2010. He makes the point that it is all the more unfortunate and indicative, he would suggest, of incompetence that those working in the same district should not have appreciated that these outstanding matters existed so that when he returned to Poland to serve the sentence in May 2010 it ought to have been appreciated that he was wanted on all these other matters.[6]The conviction warrant, which has been called EAW 2 in the context of this case, came before District Judge Snow on 3 August 2012. The appellant had been seen by the duty solicitor at the initial hearing on 23 July 2012. For some reason legal aid was refused. The result was that he was unrepresented when he appeared before District Judge Snow on 12 August. He was asked whether he wanted to give evidence, and he did. He gave his evidence on oath. The judge was aware, as a result, of the previous extradition on what has been called EAW 1; that is the extradition in May 2010. He also raised matters which were material to the possibility of Article 8. I do not need to go into those matters because Mr Fidler has very properly recognised that having regard to the law as it now stands there is no prospect of persuading the court that it would be disproportionate in terms of Article 8 to return.[7]The note I have of District Judge Snow's decision is not, as I understand it, confirmed by the judge but there is no suggestion that it is inaccurate. It was made by Mr Hearn who appeared at the time. What the district judge said in connection with the question of abuse of process resulting from the failure of the authorities to deal with the outstanding matters when the appellant was in Poland to serve the sentence under EAW 1 was this:
"I must ask myself whether the fact this outstanding sentence was not dealt with at that time is an abuse of process. If it is I have power to stay it. There is no evidence of bad faith, this is at best unfortunate at worst incompetent, but either way not an abuse of process. I then have to consider whether the extradition would be unjust or oppressive. These are relatively recent matters. The hurdle is a high one. As unfortunate as this case is, it does not cross this hurdle."
[8]The judge was, it seems, at that stage unaware of what has been called EAW 3, that is the accusation warrant. That in due course came before District Judge Evans on 25 September 2012. The appellant was then represented by a solicitor. Again the question of abuse of process was raised. Having set out the circumstances, District Judge Evans stated:
"Assuming that chronology is correct it would seem likely that any efficient criminal justice system ought to have been able to progress the accusation allegation in EAW 3 whilst the requested person was known to be in Poland ie between October 2010 and June 2011. It is that failure that founds the submission of abuse ..... "
[9]The judge had been referred to a decision of Mr Justice Ouseley - Seliga v District Court in Kalisz, Poland [2011] EWHC 3122 Admin. That is clearly a highly relevant decision because in that case very similar circumstances applied in as much as the appellant in that case had been returned under a conviction warrant and outstanding sentences were not dealt with and there was then a second warrant.[10]The facts set out in Seliga, in short, were that he was extradited in 2009 to face a number of offences of burglary and theft. He received a suspended sentence for those. They had been committed in 2003-2004. After his return he was arrested on a conviction warrant which had been issued in 2011 in respect of offences for which he had been sentenced in 2001 and 2002. It was said that it was an abuse of the process for him to be extradited again to Poland to face imprisonment on a later warrant when he could and clearly should have been dealt with for all those matters when extradited in 2009. It was in fact Mr Fidler who appeared for Mr Seliga and raised similar arguments to those he has raised before me.[11]The distinction upon which he particularly relies between the situation here and the situation in Seliga was that in Seliga there were different districts that dealt with the outstanding matters and the matter for which he had been returned. Here, there is the common factor of Pultusk and therefore it cannot be said that it was a different district. Accordingly, the opportunity for failure to appreciate by the relevant authorities should have been that much less.[12]Mr Justice Ouseley decided, on the facts, that he was not prepared to accept that there was an arguable case that in acting in the way they had done the Polish authorities were acting in bad faith. He went on thus:
"I am prepared to accept as a probable explanation a failure, which ought not to have occurred, in the way in which the Polish authorities checked what remained outstanding in respect of Mr Seliga. I am also prepared to assume for these purposes that the Polish courts will be unable to offer any redress in respect of disturbance to Mr Seliga on account of a second extradition within a short time. It is, in my judgment, nonetheless not a set of circumstances which could amount to an abuse of process. It may in conventional parlance be unfair, but the primary consequence of not giving effect to the warrant on the grounds of some generalised unfairness would be that Mr Seliga would not serve the sentence he ought to serve for the offences which he committed."
He went on to say that there was no oppression or injustice caused in that case by the passage of time which, incidentally, was considerably greater than the time which has passed in connection with the matters before me.[13]There is here no evidence which would justify a finding of bad faith. Mr Fidler does not suggest that that is an inference which ought to be drawn. Clearly, if authorities in a Requesting State are aware when they have an individual in their State who has been extradited to serve a sentence that there are outstanding matters and choose deliberately not to pursue those matters, but after his release and his going to another State then seek to get him back on a subsequent occasion, all in the knowledge that these matters existed, then that could and probably would amount to bad faith and result in a finding of abuse.[14]I do not say it is impossible for incompetence to result in an abuse of process but it would take a strong case, in my judgment, to reach that state of affairs. I do not regard the circumstances here as approaching that. Having regard to the fact that it appears to be the same district in relation to at least one of the offences in question that the matters were outstanding, it is to say the least unfortunate that they did not deal with them and that the matter was not pursued when it clearly ought to have been. No doubt the appellant hoped that the matters would not be pursued, but he was given no positive indication that he would not have to serve the sentences which were substantial for very serious offending or face a prosecution for a serious assault in due course. He thus would not have had any reasonable view that these matters had been dropped, and so he was going to be free of them.[15]As is well known when dealing with lapse of time and oppression, the hurdle is a high one. The court will not find oppression lightly. In my view there is no question of oppression here. Lapse of time is not substantial. It is just, looking at the matter overall, that he should have to face the penalty for serious criminal behaviour in Poland.[16]In the circumstances here, albeit it was the same district which was concerned, I am not at all persuaded that the district judges were wrong to take the view that they did, namely that there was no abuse of process here and certainly no oppression.[17]In those circumstances both appeals must be dismissed.[18]You want the usual legal aid order?[19]MR FIDLER: If I need it, yes.

MR JUSTICE COLLINS: I think you do, an assessment order.

[21]MR FIDLER: I am grateful.

Cited in 3 later judgments