England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		22nd August 2007

1. LORD JUSTICE SEDLEY: On 27th July 2007, when I was sitting with Mr Justice Nelson, this court adjourned the present extradition appeal so that an IJA, a Polish court, could be asked for further information about the circumstances in which after the end of the original prison term it was now being sought to bring the appellant back before the Polish court for further punishment.
2. The appellant was sentenced on 4th August 2003 to 22 months' imprisonment for an offence of arson by recklessness. On 11th August 2004, having served a year and a week in custody, he was granted early release by the Wroclaw Circuit Court.
3. The term of the original sentence was due to expire in June 2005. On 27th December 2005, however, another court, the Legnica Circuit Court, withdrew the conditional release. It is because of the appellant's consequent liability to further imprisonment for the balance of the term (10 months minus a week) that his extradition is now sought.
4. On the previous occasion this court was concerned at the ambiguity of the information provided to it by the Polish court. Was this, in terms familiar to us, a recall to prison for breach of a condition of provisional release or parole? Or was it a resentencing by the Legnica Court for an offence for which the appellant had already by then completed his sentence? If it was the latter, there would arguably have been a breach of Article 7 of the European Convention on Human Rights, the provision that there be no punishment without law; and a consequent obligation under section 21 of the Extradition Act 2003 to refuse extradition.
5. Pursuant to Article 15 of the Framework Decision, the Polish court's assistance was accordingly sought on the following questions:

(1) Was the decision to withdraw the appellant's conditional release (i) a decision overturning the original decision to allow him conditional release (because for example the earlier decision was unlawful)? Or (ii) a decision taken because Mr Niescier had breached the terms of his conditional release?

(2) If Mr Niescier had breached the terms of his conditional release how had he breached those terms?

(3) On what basis did the circuit court of Legnica withdraw Mr Niescier's conditional release on 27th December 2005, given that by that date his original sentence had already expired on June 2005?

(4) Were any attempts made to inform Mr Niescier or his legal representatives of the hearing of 27th December 2005 at which his conditional release was withdrawn?

(5) Will Mr Niescier be able to bring proceedings to review the decision to withdraw his conditional release if he were returned to Poland? If so, what would be the nature of that review?

6. The information supplied in response by the Polish court is to the following effect: the conditions on which the appellant was released before the expiry of his prison term included probation supervision and treatment for addiction to intoxicants. He was given permission to go to England to work until 31st January 2005. At the end of that time he applied for an extension but the court, on 4th April 2005, adjourned the application because the appellant was not present and had provided no information about his present situation or the reasons for his absence.
7. The appellant says that he had provided his probation officer with at least his initial address here, but the probation officer contacted his mother. On 28th November 2005 she appeared before the court, which adjourned the matter until 27th December to give the appellant a final opportunity to appear. He did not do so, and so on the latter date the court revoked the order for his conditional release, rendering him liable to serve the remainder of the term.
8. This history, which we have to take as it stands, establishes that there is, on the face of it, no violation of human rights in the appellant's recall to prison. He has not been resentenced for the same offence: he has been recalled to prison for breach of a condition of his provisional release, by remaining outside Poland without the authority of the sentencing court.
9. The appellant asserts that no notice of any of these three hearings ever reached him. The court, however, in its supplementary statement to us, asserts that he was "summoned properly" to at least the final hearing.
10. On the appellant's behalf it is submitted by Mr Common, who has conducted his case throughout with conciseness and realism, that this establishes nothing because it gives no details of what steps were actually taken on any of the three occasions. In my judgment, however, it not for this court to embark upon that issue. The evidence now before us shows that Article 16(1) of the Polish Penal Code permits an appeal out of time against the decision to revoke the appellant's conditional release provided he can show a sound reason or excuse for not having appealed within time and provided that he does appeal within seven days of the cessation of whatever it was that had stood in the way.
11. Whether or not this provision avails the appellant in the event, it means that there is no proof of an extant violation or of an impending violation of the European Convention on Human Rights if he is returned. The non-service or non-receipt of notice of the three hearing dates must, I think, be a matter for the Polish court, and re-opening or reversal of the order for recall to prison, if the appellant can obtain this, will enable him to make the application he wanted to make to extend his absence from Poland. If he fails, however, for want of promptness or for some other reason, that is not in itself a human rights issue but a matter of domestic Polish law.
12. Before us today Mr Common has submitted that this is still an Article 5(4) case; that is to say, a case raising an issue of ability to challenge by legal proceedings the lawfulness of a detention. He relies on the case of Weeks v United Kingdom [1987] 10 EHRR 293 for the proposition that recall to prison is a material loss of liberty for Article 5(4) purposes. This may or may not be right. My Lord has indicated reasons for doubting it. But accepting that it is so for the purposes of the present argument, it still seems to me that there is no ostensible or presumptive violation of it in what the Polish request as amplified now recites and we are required to accept as it stands. I have indicated what this is. It seems to me that there is no manifest want of due process either in what has happened so far according to the Polish court or in what may now happen upon the appellant's return. If it turns out that some violation of human rights does, nevertheless, occur within the Polish jurisdiction, then there is a remedy, albeit a very distant one, either in the Polish courts or ultimately in Strasbourg; but that is not what the section 21 power is concerned with.
13. For the reasons I have given, therefore, I for my part would dismiss this appeal and permit the appellant's extradition.
14. MR JUSTICE COLLINS: I agree.
15. I would only add that, as my Lord I think has indicated in the course of his judgment, I am far from persuaded that Article 5(4) has any application in a case such as this which involves a recall following an alleged breach of a licence condition in the case of a determinate sentence. Weeks was a life sentence case and it was that that distinguished it from the Strasbourg jurisprudence which makes clear that it is a general proposition that recall in circumstances involving a determinate sentence is not covered by Article 5(4). But it is not necessary to go into the matter in any more detail for the reasons given by my Lord.
16. LORD JUSTICE SEDLEY: There is a need for formal extension of time to give us jurisdiction, I think, Mr Common, is there not?
17. MR COMMON: My Lord, it is under Article 26 of the Framework Decision, which is in tab 1 of the appellant's bundle. It doesn't appear to indicate that the requested court, namely this one, has to give any particular order or direction. It may be that my learned friend is better placed to assist the court in this matter. Section 2 of Article 26 states that the requested state must transmit details of the length of time in custody of the appellant's pending extradition.
18. MR JUSTICE COLLINS: So Article 26. That is not the time that we are concerned with. What we are concerned with is the power of this court under our domestic rules to hear an appeal. The statue requires that it be heard within a particular time of the institution of the extradition proceedings. The time limit is frequently totally unrealistic, and we have had many cases where the time has expired before it even reaches this court.
19. MR COMMON: Sorry, I have misunderstood your Lordship.
20. MR JUSTICE COLLINS: And the time was extended to 31st July. It is just necessary to extend it under CPR 52PD22.6(a)(iv) until today, which my Lord is about to do.
21. LORD JUSTICE SEDLEY: Let us do it because it cannot do any harm and it might do some good. I am very much obliged to my Lord for drawing attention to that. Is there anything else?
22. MS DOBBIN: No, my Lord.
23. LORD JUSTICE SEDLEY: Thank you both very much for your help.