Pollak, R (on the application of) v Judicial Authority of Czech Republic [2014] EWHC 4395 (Admin)

Case No CO/4442/2014[2014] EWHC 4395 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 21 November 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF POLLAKAppellantv
Between
JUDICIAL AUTHORITY OF CZECH REPUBLICRespondent
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 Hawkes appeared for AppellantMr Gibbons appeared for Respondent
J U D G M E N T
[1]MR JUSTICE BLAKE: This is an appeal against a decision of the Chief Magistrate given on 19 September 2014 in the City of Westminster Magistrates' Court, whereby he ordered the appellant's return to the Czech Republic on a conviction warrant to serve a sentence of six months that had been passed on him on 22 January 2013 in the Regional Court in Prague for an offence of theft of metal to the value of £508.93 in Sterling (the Czech koruna value being 15,450 CZK). The offence was committed in May 2010; the conviction was in May 2012; and the sentence was in January 2013. The applicant had been given that level of sentence perhaps because he had previously had a suspended sentence imposed on him.[2]The applicant had come to the United Kingdom with his wife from whom he appears to be estranged and who has played no part in the proceedings below.[3]The sole point of this appeal is that he was arrested on 27 June 2014 and throughout the proceedings before the City of Westminster Court has been remanded in custody. He has therefore achieved more than five months in custody as of today's date. Looking forward to events, if this appeal were to be dismissed, having regard to the statutory period in the legislation, the earliest date upon which he could be removed to the Czech Republic pursuant to the European arrest warrant issued in February 2014 would be 15 December 2014. At that stage he would be twelve days short of completing the whole six-month sentence. It is accordingly submitted on his behalf that it would be disproportionate now to extradite him for the purpose of serving twelve days in prison in the Czech Republic. The relevant Czech provisions indicate that a prisoner serving a sentence of this length may be eligible for release after a third and would normally be released after half the sentence (which has already been served).[4]It has been intimated that the appellant would like an adjournment to make representations to the Czech authorities to withdraw the warrant in the light of the period of time that he has now served. That adjourned application was dealt with administratively by an officer of the court and refused on the basis that it does not provide a proper basis to exercise this court's limited powers of adjourning extradition appeals when a proper basis (?) is normally required. The observations of Mr Justice Ouseley in Baghishyan v Poland [2011] EWHC 1297 Admin, paragraph 5, were drawn to the appellant's attention.[5]The adjourned application has been renewed today by Mr Hawkes. At the end of submissions, the adjourned application being opposed, I indicated that I was refusing the application essentially for the same reasons. I summarise:(1) The task of this court is to decide whether the district judge made any wrong decision;(2) This court does not exercise its adjournment powers in order to allow a de facto transfer of sentence;(3) The court has to decide the issues on the evidence as it is at the day of the hearing rather than to encourage de facto service of sentences by putting the hearing back until such time as sentences are completed.[6]For those reasons I refuse the application for an adjournment.[7]Turning to the substantive merits, this being a conviction case and having regard, in any event, to the date, newly amended Section 21A which requires the court in certain circumstances to look at the proportionality of the return independent of Article 8 does not apply. There is however ample authority for the proposition that if there is a private life deserving of some respect then in evaluating whether extradition is now a justified, proportionate interference with it by reason of the public interest in acceding to the European arrest warrant system and returning those to whom requests for return are properly made, the length of the sentence remaining is a relevant consideration. That proposition was stated as long ago as November 2010 in Wysocki v Polish Judicial Authority [2010] EWHC 3430 Admin (paragraphs 19 and 34), decision of Mr

Justice Lloyd Jones (as he then was) where the following is said:

"34 Ultimately it is the pointlessness of pursuing the application which leads me to conclude that the interference with the appellant's Article 8 rights cannot be justified in the very unusual circumstances of this case. No public interest would be served by returning the appellant to Poland. I do not accept the submission ..... that such a conclusion would undermine the scheme of the European arrest warrant by opening up arguments on proportionality under Article 8 based on the time left to serve ..... "
[8]Since that case there have been other cases where the whole or nearly the whole of the sentence has been served and that has been considered to be a relevant and sometimes determinative factor in the Article 8 balance.[9]Proportionality, therefore, having come into the case through the somewhat nebulous route simply of the appellant's presence here for a period of some time before he was subject to this arrest warrant, the strength of the public interest in now returning him having served effectively five-and-a-half months and will have served everything but twelve days before he is first eligible to be returned - and it may be having regard to the Christmas period that the first date will not prove to be a determinative date on which transport can be arranged for return - I therefore am invited to perform the balance on the matter as it appears to the court now.[10]Mr Gibbons, appearing for the requesting authority, recognises on the authorities that in this respect the appellant has a strong claim against which little can be said.[11]I, accordingly, reach the conclusion that in the light of the matters that now appear to the court it would now not be proportionate to return him when the vast majority of the sentence has been served. Having said that, I repeat the caution expressed by Mr Justice Lloyd Jones that this court will not seek to facilitate de facto transfers of sentences by overuse of this factor in ordinary appeals. The court has not investigated why the appellant came to be remanded in custody. But any sense that this is a tactical device to undermine the European arrest warrant arrangements no doubt would be a cause of concern and may require further judicial consideration in the future.[12]For the reasons I have endeavoured to express - on the particular facts of this case and in all the circumstances of this case having regard to the nature of the offence and the time served - this appeal is allowed on Article 8 grounds.[13]MR GIBBONS: Thank you.[14]MR HAWKES: Thank you.

MR JUSTICE BLAKE: He will be discharged.

[16]MR HAWKES: Yes. A notice will be sent to the prison.