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 WC2
		1st February 2008

1. LORD JUSTICE MOSES: This is an appeal by the appellant Edward Jaworski against an order for extradition by District Judge Purdy on 4th December 2007. It is important to note for the purposes of this appeal that the extradition was sought under two European Arrest Warrants issued by the Regional court of Katowice, Poland, pursuant to Part 1 of the Extradition Act 2003.
2. The first European arrest warrant was issued on 26th February 2007 and the appellant was arrested in relation to that warrant a few months later on 10th July 2007.
3. It was during the course of the hearing in relation to that that a second European arrest warrant was issued on 21st August 2007, and the hearing resumed in relation to both. But the circumstances in which the second European arrest warrant was issued were wholly distinct from the first, since the second related to a case in which the appellant had been convicted and sentenced back in December 1994. He had been sentenced to a period of ten months and three days and had left without serving that sentence. The first European arrest warrant did not make any accusation. The considerations, therefore, relevant to the two arrest warrants were different.
4. So far as the chronology is concerned, the offences in relation to the first European arrest warrant were alleged to have been committed between 21st January and 8th March 1993. The accusation was of forgery of administrative documents and trafficking in stolen vehicles. The details were set out in the first European arrest warrant alleging that a forged sale certificate had been obtained as a result of the activities of this appellant, and effectively that stolen vehicles which had been ringed were transferred and sold.
5. The second European arrest warrant, as I have said, did not make any accusation but merely resulted from the conviction of this appellant and his failure to surrender himself to serve the sentence. But there was no dispute but that he had been present when that sentence was passed and thus the provisions of section 20(1) apply.
6. In relation to the first European arrest warrant, this appellant relied upon the combination of sections 11 and 14 of the 2003 Act and contended that after a period of 14 years, during which he had not expected to be accused of those offences, it would now be unjust or oppressive to return him. In relation to the second he contended only that it would be oppressive to return him to serve the sentence.
7. The sequence of events to which it is necessary to refer to relate to the fact that it was only after he had been arrested in respect of the offence for which he was convicted and sentenced that those with whom he was allegedly involved in car-ringing made the allegation. The conviction and sentence was in December 1994. He had left Poland, fleeing that sentence in March 1995. It was shortly after that that the Polish police learnt of his involvement in the matters, the subject matter of the first European warrant. That involvement was as a result of statements made by two named people, Stach and Kopczynski. It is of some note that the appellant had earlier been questioned about those matters the subject matter of the first warrant but had never been accused.
8. The district judge took the view that since the appellant had fled Poland in March 1995 and thus made himself a fugitive from Polish justice, he had brought the lapse of time upon himself and thus it would not be unjust to return him.
9. As this court has had occasion to say in a judgment given today in Griffiths and Davis, the question for the district judge, and indeed this court, is that posed by section 14 of the 2003 Act; namely, whether it would be unjust to return the appellant, having regard to all the factors that arise in his particular case. He was not, contends Mr Lloyd on his behalf, escaping from justice in respect of the subject matter of the first European arrest warrant, since at the time he left he had never been accused of those matters. Nonetheless, as we had occasion to remark in the earlier case, the circumstances in which he fled are relevant. They do not bar him from relying upon section 14, but they do make it more difficult for him to show that it would be unjust to return him. After all, had he stayed and served the sentence as he ought to have done, it would not have been difficult for the Polish authorities to identify his presence in a Polish prison and question him following disclosure of his alleged involvement in the earlier offences as a result of statements made by the two people to whom I have already referred.
10. In relation to the second European arrest warrant, it is accepted on behalf of Mr Jaworski that he cannot rely upon injustice due to the passage of time. His case rests upon the condition of his wife as disclosed in a medical report which was before the district judge from a doctor Florin dated 10th August 2007. The doctor says that his wife,

"suffers from a severe depressive illness and has done so for many years. As a result of this, she has been unable to leave the house alone or attend to her daily duties, including care of her family and has been completely dependent on her husband's support in being able to live her life. If he were to be extradited I fear that her mental condition would deteriorate and that she would be unable to manage without him."

11. It is that condition, and the fact that it appears that the appellant is the main carer for her, that gives rise to the complaint that it would be oppressive to return him. The appellant in his statement -- and we do not have a note of the oral evidence -- repeats that he is the carer of his wife and indeed receives Government carer's allowance for doing so.
12. The district judge bore in mind that medical evidence but pointed out that the evidence revealed that there were two adult boys who could care for her during the course of the appellant's absence in Poland.
13. Since arriving in the United Kingdom in 1995, the appellant has contended that he was subject to persecution in Poland and he claimed refugee status. That status was denied him following an appeal. His claims that he was at risk of persecution were rejected. Further, his claim, pursuant to Article 8, was also rejected; but he was granted indefinite leave to remain in consequence of his claim that his rights enshrined in Article 8 would be infringed. We have a copy of the decision to that effect by the immigration judge.
14. It is noteworthy that the basis upon which indefinite leave to remain was granted pursuant to Article 8 does not refer to the condition of his wife. That is relevant because it may be that her condition has deteriorated.
15. In my judgment, the judge was correct in considering that the fact that the appellant had fled from the sentence was relevant to the question of injustice in relation to return under the first European arrest warrant. Further, he was perfectly entitled to point out that there was evidence, apparently available, of the appellant's involvement in it. Nevertheless, it was incumbent upon the judge to consider all the circumstances in questioning whether it was unjust or oppressive to return him after 14 years to face those charges, notwithstanding that he had fled the sentence that had been imposed upon him in 1994. A very considerable period of time had elapsed. That inevitably would make it far more difficult for the appellant to rebut these allegations made against him. As was pointed out by another district judge in Koslowski, who was also allegedly involved in the same car-ringing offences, that delay of between 10 to 14 years would make it far more difficult for the appellant to prepare his defence and would create a real risk of prejudice in the conduct of the trial. Unlike that case, part of the delay was undoubtedly the responsibility of Jaworski, but it is an important factor in considering the question of oppression.
16. For the reasons I have already identified, there are grounds for thinking that the condition of Jaworski's wife has deteriorated and she is dependent on him for care. True it is that were he not doing so, were he not in receipt of the Government allowance, no doubt others could assist. As Mr Powles points out, if he has to dress her during the course of the morning or the evening the adult boys hardly are going to be an adequate substitute or a fair substitute for that.
17. It is one thing, in my view, to order the return of this appellant to face a sentence which is finite of 10 months and three days, quite another to force his return after a period of 14 years when neither he nor his wife nor his grown up sons are going to know for how long he is going to be away.
18. It is that consideration that leads me to the conclusion that a very different evaluation of oppression arises in relation to the first, as opposed the second, European arrest warrant.
19. As Lord Phillips, CJ pointed out in Filipczak v Provincial Court (5th Criminal District) Warsaw-Praga, Poland [2006] EWHC 2700 between paragraphs 13 to 16,

"It is plain from the statutory provisions that there must be a causal nexus between the passage of time and the oppression of which complaint is made."

20. For the reasons I have given, that nexus has been established in this case. I take the view that it would be oppressive to force Jaworski to face these charges after such a substantial period of time of 14 years when, in so doing, for an undetermined and unforeseeable period his wife will be deprived of her sole care and support. In those circumstances, I disagree with the district judge. He himself found the case finely balanced; and, once one has removed the notion that this appellant's flight from the sentence is determinative of the justice and oppression in his case, then in my view a different result is achieved.
21. So far as the second European arrest warrant, however, the considerations are different. This appellant chose to flee a comparatively short sentence of 10 months and three days for reasons he said related to his contentions of persecution which were subsequently dismissed. If he were returned, he would then serve the sentence that he ought to have served many years before for an offence of which he was guilty. Both his wife and he and his family will know precisely how long it is that he will be away from her and not able to care for her. That creates an impact upon her condition in my view far less severe than it would be were the period to be unforeseeable and indefinite. In those circumstances, the oppression of which he complains does not have the same impact and I see no reason why the decision of the district judge in relation to that second European arrest warrant should be displaced. There is, in reality, not the same oppression in those circumstances, and I would, for my part, accordingly allow the appeal in relation to the first European arrest warrant, thus preventing any further proceedings in relation to those of which he is accused, but dismiss the appeal in relation to the second.
22. MR JUSTICE SULIVAN: I agree.
23. MR LLOYD: My Lord, may I ask for legal aid assessment for costs?
24. LORD JUSTICE MOSES: Yes. Thank you very much.