Zielinski v The Circuit Court of Zielona Gora Poland [2012] EWHC 3987 (Admin)

Case No CO/9839/2012[2012] EWHC 3987 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 29 November 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
ZIELINSKIClaimantv
Between
THE CIRCUIT COURT OF ZIELONA GORA POLANDDefendant
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)
Mr Kiss-Wilson appeared for ClaimantMR N HEARN (instructed by CPS) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal against the decision of District Judge Wickham, given on 11 September of this year, ordering the extradition of the appellant to Poland. He faced three offences of forgery, burglary and damage, an offence of threats to kill and another of theft and criminal damage. The alleged offences in question were committed, the first two instances in 2002 and the third in 2004.[2]There is a somewhat chequered history so far as this appellant is concerned because he was not tried for the three matters for some reason and it appears to have been accepted that it was the fault of the authorities in Poland that that happened. Certainly, it did not happen. He in fact came to this country in 2005. But he faced a conviction upon which the sentence had been imposed that he had not served, or at least he had not fully served. As a result, a conviction warrant was issued although at that stage for some reason these accusation matters were not the subject of any warrant. But the result was he was returned to Poland in 2007 and he then served the balance of the relevant sentence.[3]There is further information that was obtained and put before the court as to what happened in respect of the offences which are the subject of these three warrants. It seems that proceedings were commenced, but it was known that he left for England in 2005, came back in October 2007 and was serving the remainder of a 2-year sentence. It is said in this situation, the District Court withdrew its decisions to issue an arrest warrant and a wanted notice for him in connection with the relevant proceedings with which these warrants are concerned.[4]But on 20 December 2007 he appeared before the District Court and said he would express in writing, by 15 January 2008, his decision concerning the continuation of those proceedings. On 8 January, the District Court received a written statement from him in which he did not give his consent for the continuation of proceedings. However, it was clear to him then that those proceedings were not at an end. He was released in March 2009 from the 2-year sentence, but the further information states that since he continued to fail to appear before the court for hearings in connection with the relevant proceedings the District Court again decided to issue an arrest warrant and a wanted notice. That is what was done and that led to these arrest warrants. The District

Judge referred to that history and said this:

"I accept that the offences are 10 years old and that the transfer of files from one District Court to another seems to have delayed matters between mid-2004 until the end of 2006 but when the defendant was released from jail in January 2004 [I think she means 2009] he was fully aware of four sets of proceedings still outstanding against him. Having been extradited for one set of proceedings he has had the opportunity to resolve two, if not three, of the outstanding proceedings whilst in custody. He has chosen not to do so preferring once again to leave Poland."
[5]The ground relied on is that it would now be oppressive, due to lapse of time, to return the appellant to face these warrants. It is not suggested that it would be unjust or that he would be unable properly to defend himself against the allegations that are made. It is on the basis of oppression. Mr Kiss-Wilson accepts, because he places reliance upon words of Lord Brown in Gomes v Government of Trinidad [2009] UKHL 21, where he says:
"...Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'."
[6]The matters I have referred to show, and the District Judge was correctly persuaded, that he could not properly say that he had received a sense of security from the authorities in Poland. The clear conclusion from his actions is that he left Poland knowing that these matters were outstanding with the intention of trying to avoid being dealt with for them. Accordingly, he is not able in the circumstances to rely upon the passage of time as a proper ground for refusing to extradite him. In those circumstances this appeal must be dismissed.[7]MR HEARN: My Lord, i ask for the usual order.

MR JUSTICE COLLINS: You may have it.

[9]MR HEARN: I am told there is a representation order on the court file but I haven't yet had one in my office.[10]MR JUSTICE COLLINS: I don't know. If there is, of course.[11]MR HEARN: Thank you very much.[12]MR JUSTICE COLLINS: You have got a representation order, you will know whether you have or you have not.[13]MR HEARN: If not, subject to the lodging of one, the usual order for assessment in the usual way.

MR JUSTICE COLLINS: Yes.

[15]MR HEARN: Thank you very much.

MR JUSTICE COLLINS: Okay.