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
		18th June 2009

1.1     LORD JUSTICE STANLEY BURNTON: This is an appeal by Leszek Stanislaw Kolanowski against the decision of the District Judge made on 11th March 2009 which would result in his extradition to Poland to serve sentences referred to in the European Arrest Warrant which is before us.

1.2     The first ground of appeal, which has not been really pursued before us, is that the proceedings before the District Judge were unfair because he appeared to be writing or drafting his judgment during the course of submissions. It seems to us that that is no indication of any procedural impropriety and I would reject any appeal based on that. It is common for a judge to make notes as to what he will say while listening and taking in the submissions being made by counsel before him, and indeed he may well be drafting those parts of his judgment which deal with factual matters, but it is not an indication of bias or the fact that he has closed his mind to the submissions being made, particularly in a case where the points are as short and relatively straightforward as this one.

1.3     A more substantial point arises out of the reference to the first offence which is the subject of the European Arrest Warrant. It is described as follows:

"In April 1994, in Gubin, state of Lubuskie, being obliged to pay off the instalments of a loan - with which he had brought on lease a Chrysler Voyager, reg no PZL 9449, valued then at PLN 40,000.00 - Leszek Kolanowksi defaulted on this obligation and failed, though summoned, to bring back the car, thereby appropriating it and harming 'Bank Staropolski SA w Poznanlu'."

1.4     It was submitted before the District Judge, and is submitted before us, that the conduct there described does not satisfy the requirement of dual criminality. The requirement of dual criminality is insofar as this offence is concerned that the conduct described amounts to an offence under the law of the United Kingdom if that conduct were committed in the United Kingdom; and what is said on behalf of the appellant is that the conduct described is perfectly consistent with a breach of contract involving no theft or other fraudulent offence. The District Judge placed emphasis on the words "thereby appropriating it", that is the car, and equally on the fact that the appellant had been summoned to return the car and considered it implicit that he was deliberately appropriating the car, that is to say in order to keep it.

1.5     The point is a short one. In our judgment, the description of the conduct constituted in the offence in a European Arrest Warrant is to be generously interpreted by the court, having regard to its obligations in relation to European Arrest Warrants. In my judgment, it is implicit in the description of the conduct that this was a deliberate failure to return the car to its owner following the default in payments and his having been summoned, and clearly being summoned by someone having authority to do so, to return the car and in my judgment the description of the conduct satisfies the requirement of dual criminality.

1.6     The third issue that is raised is the contention that it would be oppressive to return the appellant. The oppression arises by reason of his medical condition, that is to say specifically his heart condition, associated with the fact that the offences in question did not involve large amounts of money and therefore cannot be said to be at the serious end of criminality. The offences were considered serious enough by the Polish court for substantial prison sentences to be imposed: one year and two months' imprisonment on the first offence and eight months' imprisonment on the second, which was clearly a case of fraud, enabling two named persons to obtain a loan using a forged employment and earnings certificate.

1.7     The medical evidence goes beyond that which was before the District Judge and, leaving aside the question whether it is appropriate on an appeal to look at that evidence, we have considered it. The most recent evidence is that of Dr Tomasz Kopec, who in a letter of 8th June 2009, addressed "To Whom It May Concern", confirms that the appellant had been diagnosed with arrhythmia and had an ICD, which is an implanted cardioverter-defibrillator, inserted at Brompton Hospital on 22nd May 2009. It continues:

"He was seen at Kingston Hospital due to recurrent exertional chest pain on 11 March 2009 and underwent normal angiography as an inpatient. He was readmitted on 6 May 2009 and underwent various investigations which led to his decision of ICD insertion. He is booked for a follow up cardiology appointment as an outpatient in six weeks. He was advised to not drive for six weeks, avoid physical exertion, avoid stress, avoid walking through a magnetic field, and he should not fly for six months. The ICD device keeps the patient protected from recurrent arrhythmia episodes and he should stay under long-term cardiology care."

1.8     It is also apparent from the evidence before us that, prior to the insertion of the ICD, the appellant was suffering very real pain as a result of his arrhythmia and there was a concern as to the precise nature of his heart condition that led to the investigations which are referred to in the letter of 8th June 2009. What is said is in the first place that his medical condition, combined with the relative lack of seriousness of the offence, means that it would be oppressive, and was oppressive, to return him to Poland to serve his sentence.

1.9     It is clear law that oppression, which is referred to in the 2003 Act, involves a high burden upon the person seeking to establish it. It is not the same as breach of Article 2 and Article 3 but it certainly approaches breach of Article 3. I accept that the seriousness or otherwise of the offence is to be taken into consideration but so are other circumstances relating to the extradition and the other circumstances in the present case include the fact that the appellant obtained a deferment of his sentence of imprisonment and during a period of that deferment came to this country and did not surrender at the date fixed for him to serve his sentence. His explanation of that to the District Judge was that he believed he did not have to serve the sentence. The judge rejected that. He clearly regarded his conduct as an evasion of his sentence.

1.10     It seems to me that is a matter which has to be taken into account. I have no doubt that the evidence before us does not approach establishing oppression involved in his extradition. That conclusion is fortified by the fact that the respondent agrees to effectively a postponement of the extradition for the period of six months, which is that referred to in the letter of 8th June 2009, during which it is advised that the appellant should not fly. It seems to me the court should accede to and agree to that postponement under the Act.

1.11     It is suggested that we ought to adjourn the determination of this appeal with a view to its coming back before the court once the appellant has had his outpatient appointment, which was due to take place six weeks or so after 8th June 2009. In my judgment, that is inappropriate, particularly having regard to the concession made by the respondent. The terms of the letter of 8th June 2009 are clear, they do not point to a threatened serious deterioration in his health and it seems to me that we ought to decide the appeal here and now in the manner indicated.

1.12     I would therefore dismiss this appeal, while agreeing on the part of the court to the postponement of the date of his extradition to one of six months from 8th June 2009.

1.13     MR JUSTICE WILKIE: I agree.

1.14     MR HENLEY: My Lord, there is one other issue, which is the question of bail. I believe that an application for variation of bail has been lodged with the court. I do not know whether it is before -- unfortunately I have not seen the papers. I should be --

1.15     LORD JUSTICE STANLEY BURNTON: I have not seen any such application. I mean, I guessed he was on bail but I have no information about that.

1.16     MR HENLEY: Well, there was some confusion with the Administrative Court Office because I believe an application was made to the Admin Court Office. They said it was a matter for the Magistrates' Court, which I think clearly it cannot be. I think now all matters of bail must lie with this court.

1.17     LORD JUSTICE STANLEY BURNTON: I think Ms Nice disagrees with you.

1.18     MS NICE: No, as far as I am aware, the bail must be dealt with in the Magistrates' Court. There are sections in the Act which deal with the High Court's powers in relation to bail but they do not cover this type of situation. Can I refer your Lordships to the sections?

1.19     LORD JUSTICE STANLEY BURNTON: Of course you can.

1.20     MS NICE: It is section 33A(1) that deals with --

1.21     LORD JUSTICE STANLEY BURNTON: Section which?

1.22     MS NICE: 33.

1.23     LORD JUSTICE STANLEY BURNTON: No. 33 is House of Lords. We are not there yet.

1.24     MR HENLEY: 33A, yes, sorry --

1.25     LORD JUSTICE STANLEY BURNTON: Oh, 33 capital A.

1.26     MS NICE: These are just the High Court powers.

1.27     LORD JUSTICE STANLEY BURNTON: We do not have a 33A here. Do you have a copy of 33A? It is not in the bundle, is it?

1.28     MS NICE: No, I can pass up my copy of the Act.

1.29     MR HENLEY: No, 33A does not apply.

1.30     MS NICE: No, it does not apply. I am just going through the sections that are relevant to bail as concern this court. They do not cover this situation, so it may be that your Lordships do not wish to review it. There are only three sections.

1.31     LORD JUSTICE STANLEY BURNTON: Well, we cannot deal with bail without knowing what orders have been made in respect of bail at the moment, what application is made in respect of bail --

1.32     MS NICE: The only information I have is that the bail conditions that were granted in April -- February, I beg your pardon.

1.33     LORD JUSTICE STANLEY BURNTON: 33A --

1.34     MS NICE: It is 33A. Section 29(7) deals with an appeal against discharge, so that is not relevant, and section 30(4)(b) --

1.35     LORD JUSTICE STANLEY BURNTON: Section 34(b)?

1.36     MS NICE: Section 30(4)(b)

1.37     LORD JUSTICE STANLEY BURNTON: No, that is not in here either. If there is going to be an application for bail to us we are sitting tomorrow and you must obtain the appropriate documents and come before us tomorrow.

1.38     MR HENLEY: I will do that, my Lord, because he is technically in breach of bail, because he has not been signing on. The police are aware of his illness and therefore have not taken any action but potentially he could be arrested at any time because --

1.39     LORD JUSTICE STANLEY BURNTON: When you say he has not been signing on, was there a requirement --

1.40     MR HENLEY: There was a requirement to sign on at the police station.

1.41     LORD JUSTICE STANLEY BURNTON: Well, why has he not?

1.42     MR HENLEY: Because he was in hospital and -- I do not know whether he is signing on now. Unfortunately I have not got the papers. I should have had the papers.

1.43     LORD JUSTICE STANLEY BURNTON: Mr Henley, we cannot deal with this in this way.

1.44     MR HENLEY: No, I understand that.

1.45     LORD JUSTICE STANLEY BURNTON: If it is going to be said that bail needs to be varied and if it is the position that we have power to vary the conditions of bail, then we would need appropriate documentation and any evidence as to his inability to comply with those conditions.

1.46     MR HENLEY: Of course, and I will have all that if I do make further application to the court tomorrow.

1.47     LORD JUSTICE STANLEY BURNTON: Well, if you are making a further application you will no doubt tell the court office. I hope Ms Nice is available, or someone can be available.

1.48     MS NICE: Tomorrow I am at the City of Westminster dealing with an extradition there. In any event, someone will be here.

1.49     LORD JUSTICE STANLEY BURNTON: Someone can be made available. You can deal with it at 2 o'clock if necessary.

1.50     MR HENLEY: I will make sure that I keep the CPS apprised of whether we are making the application. I cannot see that we would not make the application. I cannot believe Mr Kolanowski, in the position that he is in, at the moment --

1.51     MR JUSTICE WILKIE: Or it may be that you should be making an application elsewhere. That is the problem.

1.52     MR HENLEY: Well, that is what I will investigate as well and if necessary I will join Ms Nice at the City of Westminster Magistrates if I have to.

1.53     LORD JUSTICE STANLEY BURNTON: Yes, but I warn you that neither of us is -- this constitution has its last day tomorrow.

1.54     MR HENLEY: Indeed, my Lord. It should be a very brief application. I am sure it would not be opposed in any event.

1.55     LORD JUSTICE STANLEY BURNTON: It may or may not. I cannot see, frankly, that it necessarily has to come back before us, but it would be much easier if it were to -- I am certainly not reserving any application to us.

1.56     MR HENLEY: Yes. It will be tomorrow afternoon or not at all.

1.57     LORD JUSTICE STANLEY BURNTON: Good. Unless there is anything else. Do you need a certificate of any kind for your --

1.58     MR HENLEY: I am not sure.

1.59     LORD JUSTICE STANLEY BURNTON: Because you are legally assisted.

1.60     MR HENLEY: I am legally aided.

1.61     LORD JUSTICE STANLEY BURNTON: If you need a certificate you can have it.

1.62     MR HENLEY: Thank you. I am obliged, my Lord.