Betlejewski, R (on the application of) v Circuit Court of Torun [2014] EWHC 4362 (Admin)

Case No CO/4733/2014[2014] EWHC 4362 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 1 December 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF BETLEJEWSKIAppellantv
Between
CIRCUIT COURT OF TORUNRespondent
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 7831 8838(Official Shorthand Writers to the Court)
Mr David Williams (instructed by Hodge, Jones & Allen) appeared for AppellantMiss Rebecca Hill (instructed by Crown Prosecution Service) appeared for Respondent
J U D G M E N T
[2]The total sentences imposed were, for the first offence, six months' imprisonment and for the second and third heard together a total of eight months' imprisonment. Both those sentences were suspended. There was what one might consider to be the usual condition of liaising with the probation officer and doing what the probation officer required and, importantly, keeping in touch with the probation officer. In fact, what happened was that the appellant - who, at the time the offences were committed, was 17 years old - after the judgment in the second and third matters was given (that is at the end of May 2010) decided that he would leave Poland. The information obtained from the Polish authorities indicates that he was not given - nor did he apply for - permission to leave the country. One of the conditions imposed upon him was that he should not consume alcohol and that he should take up gainful employment. Apparently, according to further information, he breached both those conditions. Be that as it may, he left Poland in June 2010.[3]I should, before going further into the details of the appeal, consider a point raised by Mr Williams at the outset based upon the new Criminal Procedure Rules which came into force on 6 October. Part 17 deals with extradition. Part 17.19 provides:
"(1) A party who wants to appeal to the High Court must serve an appeal notice ..... " and it sets out upon whom that notice should be served. At Part 17.20 it provides: "(1) An appeal notice constitutes — (a) an application to the High Court for permission to appeal to that court; and (b) an appeal to that court, if the court gives permission."
[4]The major change effected by Part 17.19 and Part 17.20 is that whereas until the new rules an appeal lay as of right, now it is necessary to obtain the permission of the court to pursue an appeal. That of course is designed to weed out those cases which would not, on any view, even arguably, be likely to succeed. What is relied on by Mr Williams is what is provided by Part 17.21 which, by paragraph (1), provides:
"(1) A party on whom an appellant serves an appeal notice under rule 17.19 may serve a respondent's notice, and must do so if - (a) that party wants to make representations to the High Court; or (b) the court so directs."
[5]If that applies in a case such as this where there has not been a respondent's notice because there was no need to seek permission to appeal then one has the strange situation that a respondent is not entitled to make representations against an appeal unless he has served a respondent's notice.[6]I ventured to say in the course of argument that seemed to me to be absurd and, indeed, clearly is. It seems to me that in the context what is aimed at in Part 17.21 (1) is the equivalent in judicial review, that is to say a notice from a respondent which is designed to show that the appeal is not arguable or - no doubt, in an appropriate case - to concede that in the view of the respondent it is, but to indicate matters on which the respondent would seek to rely. What is required in a respondent's notice is set out in Part 17.21 (4). It includes, by Part 17.21 (4) that it must - "(b) identify each ground of opposition on which the respondent relies, and identifying the ground of appeal to which each relates; (c) summarise any relevant facts not already summarised in the appeal notice; and (d) identify any document or other material that the appellant thinks the court will need to decide the appeal." In (d) "appellant" should I think be "respondent" because it does not make a lot of sense as drafted.[7]The purpose behind this is to endeavour to ensure that the court has in good time all necessary material to enable it to decide at that stage whether permission should be granted and also to assist it in the hearing of the appeal, bearing in mind the need for extradition appeals to be decided speedily.[8]I am entirely satisfied that the obligation to serve a respondent's notice will apply only when the provisions relating to permission are in force. Accordingly, I reject Mr Williams's contention that there has been that procedural defect.[9]Coming back to the merits of the appeal, the offences of which the appellant was convicted are not the most serious but they certainly cannot be regarded as trivial: burglary (this was a burglary at night albeit of commercial premises) and deliberate course of shoplifting (not simply taking one item for personal use because two identical items were taken at least in relation to two of the particular items stolen in the second offence). Whether or not they would have attracted custodial sentences of the length imposed is not clear; they might have done. That might have depended upon the character of the appellant. We do not know, or there is no information, as to what character he had, in particular whether there were any previous convictions. One has also to take into account his age. He was then 17.[10]There has been obtained from the requesting state judicial authority some further information. I have dealt with his failure to keep in touch properly with the probation officer. But it appears from that that he had been charged with committing some two-hundred-and-thirty-nine, as it is put, prohibited acts. Mr Williams submits that that is not a matter that can properly be taken into account in deciding whether his extradition is proportionate. If there were other offences and if he had been charged with them then what should have happened was that there should have been an extradition warrant which accused him of commission of those offences. Miss Hill does not dissent from that and, accordingly, I must put out of my mind the suggestion that he might have been guilty of other offences.[11]Reliance is also placed upon the lapse of time since the commission of the offences. He is now some 22 years old. The point taken by Mr Williams is that for someone who is as young as him a lapse of time which might not be particularly significant to someone older is of greater significance when one considers it amounts to a significant proportion of his life, certainly his life when one can expect him to have been in a position, to an extent, to look after himself. The district judge records that he committed eight offences in relation to the second shoplifting. When one looks at the warrant, what is said is that he was taking advantage of the shop's security guards' and employees' lack of attention. Within one day, six times he took in order to appropriate the following property - and it is set out. What seems to me to be obvious from that is that he went around the shop and when he felt he was not under observation he took the various items; there were six all together that he took. Whether one describes that as six offences or one offence taking six items seems to me to be somewhat academic. This was a planned shoplifting exercise for gain.[12]What is particularly relied on in this case is the damage that his extradition would do to his mother who, sadly, suffers from serious depression which has led her to attempt suicide on at least one occasion. She is under care by mental health specialists in this country. But, as she said in her statement that was before the District Judge, she had a very close relationship with the appellant who was very supportive and helpful to her and gave her an enormous amount of emotional support. Albeit she had professional help from her nurse counsellor, the majority of support came from her son the appellant. She had a younger son who also helped at times but he did not support her as much as the appellant because he was frequently working and she did not have such a close relationship with him. She would find it very difficult to cope were he to be extradited. She had in fact been in this country since about 1997, so for much of the time without the assistance of the appellant. Undoubtedly, that is a factor that can be taken into account in deciding whether removal would be proportionate as can the question of delay and in addition the seriousness or in this case the lack of particular seriousness of the offences.[13]So far as the latter is concerned, it is not for this court generally to consider the propriety of sentences imposed in a requesting state, and that applies here. Although a total of one year and two months may seem more than would be imposed were that dealt with in this country, nonetheless, it is the sentence that was imposed and it is not, in my judgment, appropriate to go behind that. We do not know the full circumstances nor do we know what is the appellant's character, whether he had, for example, any previous offences.[14]So far as delay is concerned, there has been some delay. However it seems to me from the explanation given by the Polish authorities that to wait, as they did, until 2011 before issuing an arrest warrant - indeed it is said it was known that he had come to this country, nonetheless it had to be established where he was - inquiries were made of his father but they did not in the end get anywhere. So it was not until May 2011 that the sentences were activated. The arrest warrant was issued in April 2012 when it was known that he had indeed come to this country. It took just over two years for the warrant to be certified. That is also criticised. However it is known to the court that the practice is not to certify until there is knowledge of where the requested person may be living. As Miss Hill noted, ironically, if the individual has not committed any offences or come to the notice of the authorities in this country it can be more difficult to locate him.[15]Nonetheless, I am not persuaded that the delay in this case is one which can in any way affect the decision that must be made on proportionality.[16]Of course, there is great sympathy with the position of the appellant's mother. On the other hand, she does have care available from the authorities here and - albeit perhaps at a lesser level than that given by the appellant - there is another son here. I have no reason to doubt that he will, to an extent, do his best to step into the breach if the appellant is not available. There is no suggestion that he is not concerned with his mother, simply that his mother relies more upon the appellant.[17]It is not necessary for me to go into the authorities. They are well known, in particular the approach of the Supreme Court in HH. But I am satisfied that the District Judge was in this case correct and there is no reason why he should not be extradited to face the sentences.[18]I would only add this. Mr Williams sought to persuade me of the fact that he had kept out of trouble in this country and worked well. We heard nothing about any alcohol problems. It should be, again, a matter to be weighed in his favour in deciding on proportionality. It is said in effect that he has at least complied to an extent with the requirements of the probation order. He got a job in this country, albeit he has had problems more recently. However, the fact that he has behaved well in this country, has obtained a job and the effect on his mother are all matters that can be drawn to the attention of the Polish court because this court is well aware that in Poland there is power to consolidate offences or to reduce the period that may have to be served. No doubt, the appellant will make the necessary application to the court to that end. The reaction of the court of course is not a matter for me in any way to dictate.[19]Furthermore, again it is within the knowledge of this court that generally speaking in Poland once half a sentence has been served release on licence, or in some cases unconditionally, is to be expected. Accordingly, it may well be that the appellant will not have to serve the whole of the fourteen months which is to be served. However that is a matter for the Polish court to decide.[20]In all the circumstances therefore this appeal must be dismissed.