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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) (27 July 2007)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2123.html
Cite as: [2007] EWHC 2123 (Admin)
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2 |
||
B e f o r e :
MR JUSTICE NELSON
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| MARIUSZ ARTUR WIEJAK | Appellant | |
| -v- | ||
| OLSZTYN CIRCUIT COURT OF POLAND | Respondent |
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Mr Gareth Patterson (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
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- LORD JUSTICE SEDLEY: Mr Justice Nelson will give the first judgment.
- MR JUSTICE NELSON: This is an appeal against the decision of District Judge Tubbs of 5th July 2007 sending the appellant to Poland on two European arrest warrants, one for theft for short-term use of a car in 1998 and one for an offence of burglary of a hotel bar in 1999. That hotel apparently belonged to his aunt.
- The appellant came to the United Kingdom in 1999, eight months after the last offence was committed.
- The appellant relies in his appeal upon the passage of time. It is 9 years since the car theft and 8 years since the burglary. He contends that after such a lapse of time it would be unjust and oppressive to extradite him now, especially as he has a partner, a daughter of some 6 years and his partner is expecting another child. He also has a job in the United Kingdom as a builder, and has lived in the United Kingdom throughout since 1999. In those circumstances, it would be oppressive to extradite him.
- The facts are that the offence of vehicle-taking was allegedly committed on 16th August 1998. It was alleged that the appellant broke into a Lada car, started the vehicle by cutting the wires, drove it, damaged and abandoned it. That offence corresponds with the English offence of aggravated vehicle-taking, and in Poland the maximum sentence for the offence is 8 years' imprisonment.
- The appellant says in his proof of evidence, which was before the District Judge, that he was given a lift in the vehicle and only then found out that it was stolen. He got out of the car at once, but the police were immediately behind the vehicle and arrested him. The following day he was interviewed at the police station about the events which transpired. He was also informed of the charges. He denied the allegation. He was presented with further information in November 1998 and again in December 1998. On 6th January 1999 the second offence, namely the burglary alleged, was committed. It was in fact on the same day, namely 6th January 1999, that he was told the indictment would be sent to the District Court in relation to the vehicle offence. It is alleged that he failed to appear when hearings were fixed. The case was adjourned in May 1999, and sometime later in November 2003 an arrest warrant was issued as his whereabouts were unknown. Subsequently on 28th December 2006 the European arrest warrant was issued.
- In so far as the burglary was concerned, it was alleged on 5th/6th January 1999 the appellant, jointly with others, broke into a bar of a hotel owned in part by his aunt and stole a cash register, alcohol, cigarettes and money totalling (the appellant says in his witness statement) about £2,000. Part of the money and goods belonged to his aunt and part to a limited company. The offence of burglary is punishable in Poland by a maximum of 10 years' custody. The appellant says in his proof of evidence that his aunt does not want the case to proceed against him. He said in evidence to the District Judge that he was present at the hotel at the time of the offence, that he knew the person involved and had discussed with that person, who was the one who had actually committed the burglary, the question of making restitution to his aunt, to whom he had also apologised.
- In so far as the burglary matter is concerned, on 15th February 1999 the police decided to present burglary charges, but at that stage the appellant's whereabouts were unknown. In March 1999 an arrest warrant was issued and in April 1999 a search warrant ordered. On 26th May 1999 there was a hearing which the appellant failed to attend, and then in August 2006 the European arrest warrant was issued.
- We now have today before us a note of the findings which the District Judge made when the matter came before her. She found in essence that the appellant had left the jurisdiction knowing of the events which resulted in prosecution. He knew the facts of both of those matters. He was also aware, he said in evidence, that he either had been or might have been charged in relation to the car offence before he left. The District Judge found that in the circumstances, because of the area of dispute as to precisely the extent of his knowledge, she was not going to preclude him from raising the passage of time argument and contending that it would be unjust or oppressive for him extradited.
- We have, in considering the matter, accepted, as is appropriate for us to do, the District Judge's finding and indeed her approach to the matters on her findings, namely that it was open to her to consider injustice or oppression in relation to the passage of time.
- Mr Lloyd in his helpful and succinct submissions submits that he no longer relies on the question of whether it was unjust for him to be extradited, it is not appropriate for him to do so on the facts. However, he does rely on the basis of oppression. He submits that there are six matters that this court ought to take into account in determining this appeal.
- Firstly, the length of time. It is 9 years since the car theft and 8 years since the burglary offences, a very substantial time ago.
- Secondly, the appellant is not a fugitive from justice as such, albeit there is evidence that he left Poland and came to the United Kingdom knowing that he was likely to be charged in respect of the matters, and certainly knowing of the events which might lead to him being charged.
- Thirdly, there has been a change of circumstance, in particular his age. He was then 20. He is now 29 and much more mature.
- Fourthly, he was then a single man. Now he has a partner of some 7 years, a 6½-year-old daughter and they are expecting another child.
- Fifthly, he is firmly established in the United Kingdom. He has a close and supportive family. He speaks English and has a job as a builder.
- Sixthly, were he to be extradited he would in effect lose his family entirely.
- On behalf of the respondent, Mr Patterson, in his equally helpful and succinct submissions, asks this court to uphold the decision of the District Judge. What in effect happened, Mr Patterson submits, was that this appellant fled the jurisdiction knowing of the events which resulted in the proceedings. In those circumstances, that is a factor which the District Judge could rightly take into account, even though she considered the question of injustice and oppression in relation to the passage of time argument.
- As to the question of oppression, there was simply nothing out of the ordinary. Yes, as the District Judge said, extradition in such circumstances might be seriously inconvenient. They might also be distressing, causing the family to be separated. But that did not and could not amount to oppression, Mr Patterson submitted. Indeed, if it were the case that having either a husband or wife or a partner and children were to be in itself a ground of oppression, then there would be a significant number of people whose extradition was sought who could never be extradited, and that would be to defeat the whole purpose of the procedures relating to European arrest warrants. In the circumstances, therefore, it would be wrong to interfere with the decision of the District Judge.
- We have considered these submissions. Speaking for myself, I have concluded that this is a case where there is no proper basis for interfering with the District Judge's conclusions. Her findings of fact are not challenged by either party. For this court to interfere, it has to decide that the District Judge ought to have decided the matter differently. We cannot, even though this court has a wide area of discretion, having had regard to what the District Judge said, come to a different conclusion. Indeed, having considered the matters, it seems to me that the District Judge's decision was one which could properly be described as correct. They are old offences, but the evidence makes it clear that the appellant did leave the jurisdiction knowing fully of the events which resulted in the proceedings. Whilst, as Mr Lloyd says, he may not be in the narrowest sense a fugitive from justice, the inference that he left at a time when he knew proceedings might be brought against him, or indeed in the case of the car theft on his own admission may well have already been brought against him, is a matter which the District Judge could rightly take into account, as this court can too.
- But in relation to oppression I can see no basis for differing from the conclusion which the District Judge reached. The matters of which the appellant complains are all matters which are common in circumstances of extradition cases. As Mr Patterson has submitted, correctly identifying the heart of Mr Lloyd's submissions, that fact that the family will be rent apart, cannot in all the circumstances properly be regarded as a hardship amounting to oppression.
- So in my judgment, I conclude that the District Judge's findings, the District Judge's reasoning and the District Judge's conclusions are all matters with which this court should not interfere. I consider that this appeal should be dismissed.
- LORD JUSTICE SEDLEY: The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety.
- But if, accepting all the District Judge's findings, this court disagrees with her conclusion or conclusions, it is both free and bound so to hold. Thus if, given all District Judge Tubbs' findings, we nevertheless considered that by reason of the passage of time extradition would be unjust or oppressive, we would allow this appeal.
- Like Mr Justice Nelson, however, I do not differ in any respect from the District Judge's findings or her conclusions, and I too would dismiss this appeal.
- Is there any consequential application?
- MR LLOYD: My Lord, I believe the appellant is privately funded, so there is no application.
- MR PATTERSON: No application.
- LORD JUSTICE SEDLEY: Thank you very much, Mr Patterson. Thank you both for your extremely helpful submissions.