Pokusa v Circuit Court In Olsztyn & Anor [2013] EWHC 301 (Admin)

Case No CO/10816/2012Case No CO/10800/2012[2013] EWHC 301 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 22 January 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
POKUSAAppellantv
Between
CIRCUIT COURT IN OLSZTYNRespondentDISTRICT COURT IN WIDZIALI KARNY IN OLSZTYNIE, 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: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Stephen Fidler (instructed by Stephen Fidler & Co) appeared for AppellantMs Hannah Hinton (instructed by the Crown Prosecution Service) appeared for Respondents
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Grant that the appellant should be removed to Poland. There were two warrants. One was a conviction, which is referred to as EAW 1, and one an accusation, EAW 2. Each of the warrants deal with offences which were committed, if they were in relation to the accusation warrant, a considerable time ago, in 1997 and 1998. It seems that the appellant in fact left Poland before 2001, and it appears may well have been in this country since then.[2]The offences in question are, so far as EAW 1 is concerned, one offence of deception and two of embezzlement/fraud committed in 1997, and for those he was sentenced to a total of 2 years' imprisonment.[3]The accusation warrant covers some 11 offences, two of fraud and eight of forgery, together with one of failing to pay support for the next of kin, but that was decided not to be an extradition offence, and indeed it is clear from the documents before me that limitation for its prosecution had in any event expired and so removal on that offence was not ordered.[4]The grounds relied on, both before the District Judge and repeated here, are essentially that there was no sufficient indication in EAW 1 in relation to the first offence there set out that it amounted to an extradition offence, and secondly that the lapse of time enables a bar to be established under section 14 of the Act because it would be unjust or oppressive to return him to face the charges. The lapse of time point is not raised in relation to the service of the sentence because it is recognised that he was under an obligation to keep in touch with the authorities in Poland in relation to the conviction and the sentence which he knew should be served. Therefore, he is clearly a fugitive from justice in relation to the conviction warrant. Accordingly, as I say, that issue cannot be raised in relation to conviction.[5]So far as the details of the offence in EAW 1 are concerned, what the warrant states, so far as of course the English translation is concerned, and there is no suggestion that it is in any way a wrong description, is as follows:
"On 23 December 1997 by misleading an employee of the Division of Transport [at the relevant office], he obtained under false pretences a certification of untrue circumstances in the form of a duplicate of the registration document [for a particular car] ... by stating that he had lost the original document."
[6]Mr Fidler submits that since he was, on the face of it, entitled to the document in question, because it is not suggested that it was a false document in relation to his own car, then there is no proper indication that there was dishonesty or fraud involved in the offence. We do not know the full details of what the Polish system requires in relation to matters such as duplicate documents for motor vehicles. Suffice it to say that it is clear from the allegation made, or rather from the facts set out that it is asserted that there were false pretences, there was a lack of truth in what was put forward and so there was fraud perpetrated.[7]In those circumstances, as it seems to me, it is quite impossible to make out the ground that the offence there set out was not an extradition offence.[8]So far as lapse of time is concerned, reliance is placed upon information that was obtained from the Polish authorities and which was before the District

Judge to the following effect:

"We possess no knowledge when Mr Pokusa left Poland. He did not have any restrictions in trips outside the borders of Poland with the exception of limitations consequential to the duties of the suspect. He did not inform the police or the prosecutor's office about his address in the United Kingdom."
[9]He did in fact have restrictions because of the conviction and the need to serve a sentence, but that of course is not a matter relied on in relation to the accusation.[10]The District

Judge dealt with that in these terms:

"The fourth matter raised today was under section 14 of the Act in respect of the passage of time since the offences in EAWs 2 and 3 were said to have been committed [there was, I think, a third warrant which contained two other offences of fraud, but there is no argument raised in relation to that beyond the same section 14 argument]. It was conceded on behalf of the requested person that Polish law appears to place a general obligation on an accused person to maintain contact with the prosecuting authorities, attend appointments and report any change of address. It was said there was no specific direction order made by the Polish courts against the requested person preventing him from leaving the Polish jurisdiction. I am not persuaded that that fact shows that the requested person was anything other than a classic fugitive from justice."
[11]Mr Fidler submits that there was no justification for that finding by the District Judge. It seems to me that it is clear that the appellant knew that he was a suspect. True at that stage it does not seem that any particular bars were put into effect to prevent his leaving the country. He was not, as might have occurred for example in this country, placed on any equivalent to police bail while the matters were further investigated. However, there was evidence before the District Judge which he refers to, making it clear that there was an obligation under Polish law to at least keep in touch to the extent of notifying the authorities where he was at any particular time, and that he failed to do, but he left the country in the knowledge that there were these matters being investigated against him, and no doubt knowing perfectly well whether he had committed the relevant offences.[12]The observations which I have already cited from the Polish prosecutor refer specifically to the limitations consequential to the duties of the suspect, and then refer to the failure to inform the police or the prosecutor's office of his address in the United Kingdom. It seems to me in those circumstances that the District Judge was justified in the conclusion that he reached. But even assuming that he was not and if the appellant is entitled to rely upon the lapse of time, it has not been suggested on his behalf, and nothing has been put before the court, to indicate that he would be unable in the circumstances to deal with the allegations made against him, albeit a long time ago, and accordingly there is no material which would enable the court to decide that it would be unjust to return him.[13]So far as oppression is concerned, again there is nothing to suggest that, in all the circumstances, it would be oppressive, bearing in mind the high hurdle that needs to be surmounted in order to establish oppression. So whether or not the District Judge should have decided that he was a fugitive from justice makes, in my judgment, no difference to the decision which was reached, and in all the circumstances, this appeal must be dismissed.

MR JUSTICE COLLINS: Do you want the usual order?

[15]MR FIDLER: Yes, please, my Lord.

MR JUSTICE COLLINS: Detailed assessment.

[17]I should have added to the judgment, there are before the court two appeals because it seems that the first was lodged by the appellant in person and the second by his representatives, but no separate issues have been raised in relation to each of the appeals and my judgment covers both.