Orzechowski, R (On the Application Of) v Regional Court In Katowice Poland [2014] EWHC 3890 (Admin)

[2014] EWHC 3890 (Admin)Case No CO/3901/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 27 October 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF ORZECHOWSKIClaimantv
Between
REGIONAL COURT IN KATOWICE 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)
Ms N Draycott (instructed by Kaim Todner) represented the Claimant.Mr R Evans (instructed by CPS) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: The 34-year old appellant in this case challenges a decision of District Judge Coleman dated 18 August of this year ordering his extradition to Poland under a European Arrest Warrant. That is a conviction warrant issued by the Regional Court in Katowice on 28 January 2012 and certified by the National Criminal Agency on 31 October of 2013.[2]The warrant contains two offences. The first occurred on 19 February 2001 and involves an assault involving a knife. The warrant itself describes how the appellant jointly and in concert with two other persons took part in assaulting the victim. The appellant used a knife as a result of which the victim suffered a superficial incision on the left side of the neck and a contusion of the lower back which resulted in a disorder of health for less than seven days.[3]That offending led eventually in mid January 2007, six years later, to a sentence of two years imprisonment suspended for five years with a condition that the appellant should keep in touch with his probation officer. The sentence of two years imprisonment was activated on 19 August 2008 since the appellant had not kept in touch with the probation officer as required.[4]The second offence in the warrant is drink driving. That occurred on 21 September 2003 and in April 2005 led to a sentence of eight months imprisonment suspended for two years and a fine of 500 Polish zlotys. That sentence was activated on 8 August 2008 since the appellant had committed a further offence for which he received a sentence of imprisonment.[5]Indeed the record shows that the appellant had committed a series of other offences in Poland before he left the country. He was sentenced to 18 months imprisonment suspended for three years in June 2004 for another assault. On that same day, other sentences were imposed for other offences, for example, a sentence of 18 months imprisonment, suspended for three years, for drink driving and he was disqualified from driving for two years. On 26 September 2005, he was sentenced to ten months imprisonment suspended for two years and fined for attempted fraud. In July 2007, he was sentenced to eight months imprisonment suspended for four years and fined for an offence of forgery.[6]The appellant came to this country in 2007. In December of that year, he was convicted of drink driving and sentenced to a two year community order with 100 hours of unpaid work and disqualified from driving for two years. Despite that sentence, in March 2008 he was convicted of driving while disqualified and sentenced to a 12 months community order with 150 hours of unpaid work and disqualified from driving for two years. The following year, in January 2009, he was sentenced for using a vehicle while uninsured and in 2010, he was fined for being drunk and disorderly.[7]In his evidence before the District Judge, the appellant denied that he had breached the terms of his probation in Poland. On his account, he had kept in touch with the probation officer and had sought permission before leaving Poland.[8]In 2009, the appellant was extradited to Poland for another, unrelated, offence, and was found not guilty. He then returned to this country.[9]Ms Draycott has adduced fresh evidence that during his time in Poland in 2009, he obtained an identity card from the mayor of Siemianowice Slaskie. In my view nothing turns on that. In 2012, he was summoned to appear as a witness in a Polish prosecution. He returned to Poland and gave evidence in early February 2013.[10]In his evidence before the District Judge, he explained his family situation. He lived with his mother in Wrexham, he had had two children with a partner, both of them attending school in Wrexham and both of whom he saw at weekends. His ex-partner wrote a supporting letter confirming that evidence. In addition, he explained that he had formed a relationship with another woman who had two children of her own. Although he did not live with them, he regarded the children as his own. Again, there was a supportive letter, this time from the current partner who confirmed his evidence.[11]In her careful judgment, the District Judge made clear findings on the evidence. She said that the appellant had been vague on some dates, which was unsurprising, given that the events had happened some years ago. However, she did not believe the appellant's evidence in respect of the circumstances surrounding his departure from Poland, in other words that he had permission from the probation officer to leave. Nor did she accept his declared compliance with the requirements of the suspended sentence. The District Judge said this:
"I find that the requested person left Poland without permission and without complying with his conditions. He has a history of non-compliance with court orders in this country, namely disqualified driving only two months into a two year disqualification and then breaching the community order which was imposed for disqualified driving. The conduct in the United Kingdom has a continuing pattern. I accept that the Polish authorities only have the registered address in Poland and that the requested person did not notify either the probation officer or the court of his address in England."
[12]The District Judge turned to delay. She did comment that it was unusual that the Polish authorities took a considerable time from the offending in the warrant to the prosecutions in Poland in 2005 and 2007 respectively. She then examined the subsequent delay in the case. She said that it was "unfortunate" that when the appellant had been extradited in 2009, these matters were not dealt with at the same time. She speculated that maybe it had something to do with speciality protection or perhaps they were simply overlooked or not known about. It was not for her to speculate in the absence of evidence. But it would appear that there were "missed opportunities". The District Judge then said. "On the evidence before me I am satisfied that the necessary criminal standard of this requested person is a classic fugitive."[13]The District Judge then addressed the Article 8 considerations, recounted the private and family life which the appellant obviously enjoys in this country, commented on the seriousness of the offending and noted that he did not live with any of the four children. In the event that he were to be extradited, she said, all the four children would be with their respective mothers who would continue to care for them and provide stability. The mothers did not have any health problems nor did any of the children. Although there would be financial hardship in the event of the appellant's extradition and although she had no doubt that the appellant would be missed by those close to him, carrying out the balancing exercise she was not satisfied that the interference in the Article 8 rights of those concerned outweighed the public interest in extradition.[14]Before me, Ms Draycott submitted that this appellant attracts the protection of Section 14 of the Act. She submitted firstly that the appellant complied with the terms of his probation and informed the probation officer that he wished to move to the United Kingdom to find work and was given permission to leave and intermittently kept in touch with his probation officer. In my view, those are difficult submissions to make in the light of the findings of the District Judge which I have quoted.[15]Ms Draycott's better point was in relation to the extradition of the appellant in 2009. She submitted that at that point, where he spent some months in custody on remand, no mention was ever made of any outstanding sentences which he needed to serve. In her submission, he understandably developed a false sense of security. What the judge described as "missed opportunities" led him to return to this country and to develop his private and family life.[16]During a short adjournment, Ms Draycott attempted to obtain instructions from the appellant as to whether the court where the appellant appeared in 2009 was the same court which had sentenced him in 2005 and 2007 for the offending set out in the European Arrest Warrant. Ms Draycott faced some difficulties, unsurprisingly, given that the appellant could not remember exactly where he had appeared, although it seemed to be that he had appeared in the same court in 2009 as for the offending in the warrant. Mr Evans was unable to inform me whether specific inquiry had been made of the Polish authorities about where the 2009 offending had been dealt with. Certainly there was no attempt in the further information the Polish court provided to deal with that point.[17]Ms Draycott also underlined that when the appellant returned in November 2012 to give evidence in another trial, the District Court in Poland knew of the appellant's UK address yet although the European Arrest Warrant had been issued at that stage, it still took a considerable period of time for the warrant to be certified. In Ms Draycott's submission, the appellant had complied with the summons and returned to Poland to assist the court. If he were a fugitive from justice it would be very unlikely that he would have complied with the summons in the full knowledge that he would be arrested.[18]In support of her submissions, Ms Draycott invoked a decision of Mitting J in Wyczesany v The District Court Warszawa Poland [2013] EWHC 698. There the requested person had been convicted in Poland of offences committed in 2005, had returned to Poland in 2006 from this country under an accusation warrant and had remained in Poland for another three years when he was given leave by a Polish judge to return to Britain. Mitting J held that it would be oppressive to order his extradition to Poland in circumstances where the Polish court could have dealt with matters that had given rise to the European Arrest Warrant in that case.[19]I find this a difficult case. Firstly, there is the applicability of Mitting J's decision in Wyczesany. As he emphasised, there were unusual circumstances in that case and it was finely balanced: [32]. The District Judge had made express findings that the matters should have been resolved in 2008 when the appellant had been extradited for another offence. Mitting J underlined the implied finding by the District Judge that by failing to deal with the appellant in 2008, and the appellant remaining another nine months in Poland, the Polish judicial authorities were at fault:
"Two unusual factors, are, however, present in this case. The District Judge made an express finding that the matters which give rise to these warrants "should have been resolved in 2008 when he appeared before the same court that imposed two of the suspended sentences which he had breached."
Further he remained at his registered address for nine months. That suggests to me an implied finding by the District Judge, which he was plainly entitled to make, that by failing to deal with him in 2008 the Polish judicial authorities were at fault."[20]There were no such findings in this case. Moreover, it seems to me that that decision is distinguishable as well in the sense that the offending in this case is more serious. Although the serious offending involving the assault on the victim occurred in 2001, and although there was considerable delay in bringing the appellant to justice some six years later, it was a group attack and involved the use of a knife. That was not the nature of the offending in Mitting J's case, which involved an assault by battery using fists and feet.[21]Moreover, in this case, as the District Judge found, there was a clear failure to comply with the orders of the court to keep in touch with the probation officer. In Wyczesany, Mitting J found that the Polish judge had expressly allowed the requested person in that case to return to this country. There was the implied finding of fault in that case. In this case, as I commented in argument, it might be said that the appellant should have raised the issue of the earlier sentences with the Polish authorities in 2009, although Ms Draycott's riposte was that the appellant was ignorant of the fact that the sentences had been activated.[22]In my view, then, given the findings of the District Judge, this case is not on all fours with Wyczesany. Each of these extradition cases needs to be decided on its own facts. Notwithstanding the troubling aspects of the failings of the Polish authorities to operate a joined up system of justice, it cannot be said to be oppressive to return this appellant.[23]That leaves the Article 8 aspects of the case. There is a strong public interest in extradition. The claimant has not led a blameless life in this country. No doubt he does have a family life. But for the reasons given by the District Judge, which I adopt as my own, it cannot be said to be disproportionate for him to be extradited. I dismiss the appeal. Thank you very much.