Ziolkowski v The Circuit Court of Torun, Poland [2013] EWHC 310 (Admin)

Case No CO/11024/2012[2013] EWHC 310 (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
ZIOLKOWSKIAppellantv
Between
THE CIRCUIT COURT OF TORUN, 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 Mary Westcott (instructed by the Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Riddle to order the appellant's return to Poland to serve a sentence of 18 months' imprisonment, which had been imposed for an offence which would appear to be one of effectively obtaining by deception of one sort or another of Mr Fidler points out two bicycles to the value of no more than £400. The offence in question was committed as long ago as 2000, and it was not until 2005 that he was convicted. He attended his trial and pleaded guilty to the offence in question and was sentenced to the period of 18 months, but that was suspended whilst he was on probation. What that means is that he was required to attend a probation officer over a period, it would seem, of some five years.[2]What he in fact did was to come to this country in 2006 and thus breached the conditions upon which the sentence had been suspended, and Mr Fidler has to accept inevitably that since he was a fugitive from justice over that period, insofar as he seeks to rely on lapse of time as a bar, the time in question runs only between 2000 and 2005, which was the delay in dealing with the offence. Unfortunately, the appellant was refused legal aid when he came before the District Judge. The result of that was that, despite an application for an adjournment, which was refused, no evidence was put forward in relation to the lapse of time, and indeed in relation to the other point which was taken on his behalf by Mr Fidler, the other point being an assertion that the offence in question was not an extradition offence because fraud had not been identified as an ingredient of the offence. I will deal with that in a moment.[3]The result has been that there has been material obtained from the prosecuting authority which explains the history of this matter because, as I say, reliance on length of time was not raised before the District Judge. Mr Fidler suggests that having regard to the length of time since the offending, it ought to have been raised either by the judge as a possibility or dealt with at that stage by the prosecuting authority. That, I am afraid, is expecting too much of the court, and in the absence of any issue being raised, there is no reason why the prosecuting authority should go beyond the extradition warrant, which after all is always the result of a judicial process in the requesting state.[4]So far as the offence itself is concerned, the warrant particularises it in these words:
"On 10 February 2000 in Torun, with and in co-operation [with a named individual], in order to gain material profit [the appellant] led [a company] ... to a disadvantageous disposition of property worth 1.648,63 PLN in the following way: using the documents of [another named person] on the basis of [a particular credit contract] signed [by the co-defendant], he was awarded a credit [of the sum in question] for the purchase of two bicycles [and he did not pay any instalment that he should have paid]."
[5]That does not in terms use the words "dishonest" or "fraud". However, when one looks at the warrant, it is clear that the box "fraud" is ticked. Thus the warrant on its face shows that it was an allegation of fraud. In my view, the absence of the use of that word or "dishonest" in the statement is not a proper basis for suggesting that this is not an extradition offence. It is quite clear from the warrant as a whole, and one must look at the warrant as a whole, that it is an allegation of fraud, and in those circumstances, there is no merit in that particular ground.[6]So far as lapse of time is concerned, the question is whether it would be oppressive to return him. As I say, he has only himself to blame for any lapse of time since 2006 when he chose to break the terms upon which his freedom was allowed by the court. So far as the time before that is concerned, that is the time between the commission of the offence and its prosecution, there is an explanation given for that, namely the problem of getting evidence of the offence because complaint was not made until 2003. Incidentally, I see no reason why, in the circumstances, it is not right to refer to that further information from the prosecuting authority since there was no obligation on it to produce that information in the absence of any allegation based upon lapse of time.[7]In all the circumstances, it is quite impossible to say that it would be oppressive to return him to serve that sentence.[8]There is a suggestion of an Article 8 claim as his wife and family are here. Mr Fidler recognises that as the law stands on the basis of the decision of the Supreme court in HH, it would be quite impossible for him to say that this is a case that meets the threshold required to show that it would be disproportionate to return in terms of Article 8. It follows that this appeal must be dismissed.[9]MR FIDLER: Thank you very much, my Lord.

MR JUSTICE COLLINS: Do you want the usual order?

[11]MR FIDLER: Yes, please, my Lord. Thank you very much.