Durakiewicz v Regional Court Poznan Poland [2014] EWHC 4277 (Admin)

Case No CO/2500/2014[2014] EWHC 4277 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 14 November 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
DURAKIEWICZAppellantv
Between
REGIONAL COURT POZNAN 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: 020 7404 1424(Official Shorthand Writers to the Court)
Miss M Westcott (instructed by Lawrence & Co Solicitors) appeared for AppellantMr D Sternberg (instructed by the CPS Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE OUSELEY: This is the third occasion upon which this appeal has come before the court. It is something of an unusual set of circumstances. District Judge Zani on 7 May 2014 ordered the appellant's extradition to Poland to serve a sentence of 1 year's imprisonment in respect of an offence of driving with excess alcohol in his blood. The offence was committed in May 2005. Seemingly in his absence, he pleaded guilty as Polish procedure permits, in August 2005. The sentence of 1 year's imprisonment was imposed but suspended for 4 years. It was activated on 17 December 2009, becoming final on 30 January 2010.[2]Between times the appellant came to the United Kingdom. It appears that he came by the end of 2005 or early 2006. In May 2008, he was arrested pursuant to two other extradition warrants, and a month later was returned to Poland where he served the balance of 9 months' imprisonment for those other offences. He was then released from custody. There may be an issue about whether what his lawyer told him was accurate, but he says that he was told that he need worry no more about the requirements attached to the suspension of the drink drive sentence. He returned to the United Kingdom in 2009 after his March 2009 release.[3]The European Arrest Warrant (EAW) was issued on 12 July 2013. Before the district judge the appellant contended that there had been a Polish court judgment which had considered and dealt with the 1 year sentence. He had no documentation to support it. The appellant, however, obtained such documentation for the purposes of this appeal. On 24 September 2014, Bean J allowed the further document to be admitted in evidence and granted the requesting authority time in which to make enquiries and provide an answer. The material had to be provided by 7 November. For reasons it is not necessary to go into, it was not provided by that date, nor has it yet emerged. It has not emerged essentially because it no answer has really been provided by the Polish authorities, notwithstanding a hiccup internally within the CPS. Mr Sternberg, appearing for the CPS, does not contend that the appeal should not proceed today, a responsible attitude.[4]Bean J considered the significance of the document in his short judgment of 24 September. Having set out the history, as I have done, he turned to the new document which had just before been served on the requesting state. This is the crucial document. It is dated 5 November 2008. It was produced while the appellant remained in custody in Poland. The docket number may not be the same, although it is difficult to avoid the conclusion that it does indeed relate to the drink drive offence with which I am concerned. It is a decision of the regional court in Poznan. The document recites that a complaint, as it is called, has been filed on behalf of the appellant against the decision of the district court in Poznan of 29 May 2007 for the order of serving a penalty of 1 year imprisonment imposed by the district court in Poznan on 24 August 2005. That is the basis for supposing that this order relates to the relevant decision. The regional court decides: "to change the appealed ruling (that is the 1 year sentence for this offence) and not to order the serving a penalty of 1 year imprisonment for [appellant] under the judgment of the district court in Poznan of 24 August 2005 in the case of court file number VK92305" which is the docket number of the relevant offence.[5]The grounds are then set out. It appears that the suspended sentence had in fact been activated not on the date set out in the EAW but on 29 May 2007. The regional court considers the basis upon which it was so activated, in particular, that the appellant had evaded the penalty and evaded probation in not turning to up to serve his offence when required. Although it is not possible from the translation, and no doubt from the original as well, to understand precisely the to'ings and fro'ings of the probation office in Poland and the appellant who, in 2000 and late 2005/early 2006 had come to this country, it is clear that they did not consider that the appellant was wholly to blame for the asserted breach of the requirements of the suspended sentence order. It concluded:
"In such a situation it was wrong to determine by the district court that the convict evaded the probation and therefore he intentionally failed to be supervised or intentionally failed to make the payments since the summons had also been sent to the address of residence"
. It is also critical of a failure on the part of the appellant. But it says:
"Therefore the appealed judgment shall be changed to the effect that no order to serve a penalty of imprisonment against the appellant should be issued."
[6]Now, it is possible that that document simply means that the activation of the suspended sentence in 2007 was quashed but leaving intact the obligations to comply which would have remained in force until 24 August 2009. But, at all events, it is plain that the prosecutor cannot rely upon any breach of the suspended sentence conditions before 5 November 2008.[7]The question then arises as to the extent to which it can rely upon any breach between the March 2009 and August 2009 after release from custody. But there is nothing in the warrant to indicate what it is that they had in mind. After all, the appellant had been in custody, no further information specifically was given to him, on his case, when he left prison, as to what conditions he might still be under for the remaining 5 months of the suspended sentence condition, and as to whether or not anything was said about leaving Poland. The Polish authorities might have been able to respond to the 2008 November judgment by pointing to what he had failed to do and was obliged to do. But it appears that the appellant was told by his lawyer that he had nothing further to worry about. For these purposes I have taken into account further evidence from the appellant which may not have been covered by Bean J's order, but with the new documentation that is inevitable.[8]In these circumstances, the return to Poland to serve a period of 1 year's imprisonment after this period of time, on the basis of something which may have happened in the last knockings of the suspended sentence condition, and after so long, is something to my mind which is disproportionate, not oppressive, for the purposes of article 8, in view of the fact that he has been in this country and has established a private life in this country. I accept that he is not the sole carer for his children; the wife has been able to cope without him. The children are older than when they last had to do that. But nonetheless, with this passage of time, the gravity of the offence, the period of time that has passed since the offence was committed, the limited period of time of noncompliance if there was noncompliance, all make this an inappropriate case for extradition. It is wholly disproportionate for him to go back.[9]I am concerned that the Polish authorities did not refer to this event in the extradition warrant. Had they focused on the events after release in March 2009 they might themselves have come to the conclusion that this should not by pursued or, if to be pursued, should be pursued with a strong health warning that they were only doing so because they were required to do so by Polish law, if that is indeed the position, and not because they thought that there was anything that really warranted the pursuit of the appellant.[10]Accordingly, this appeal is allowed and the appellant is discharged.