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
		25th November 2010

1. LORD JUSTICE PILL: This is an appeal by Mr Rafal Lagowski, the appellant, under section 26 of the Extradition Act 2003. He appeals against a decision of Deputy Senior District Judge Wickham dated 27 August 2010 following a hearing on 30 July 2010. The appellant has been on bail subject to conditions since that date. The court's order, expressed in paragraph 13, was:

"I find as a fact that this defendant is a fugitive from justice and that he is not able to resist this claim for extradition. I reject the submission in relation to the passage of time and order his extradition."

2. Proceedings were taken pursuant to an European Arrest Warrant dated 16 December 2009 from the Regional Court at Radom in Poland. It was certified on 31 January 2010 by the Serious Organised Crime Agency which had been designated by the Secretary of State for the purposes of Part 1 of the Extradition Act 2003 Act. It is a Part 1 warrant.
3. The warrant provides the appropriate information. Two separate offences are alleged, both involving theft of property from cars in Radom, the first offence allegedly having been committed on 5 May 1998 and the second on 19 May of that year. The sentence of the court was one of 1 year 6 months' imprisonment, all of which, apart from possibly a day or so, remain to be served.
4. The operation of the sentence was suspended for a period of five years. During that period the appellant committed a further offence and that led to the activation of the suspended sentence. It was activated on 26 August 2003 and became enforceable on 20 April 2004.
5. Information was received by the court in England and Wales from the Extradition Prosecutor by letter of 26 March 2010. Having set out the chronology to which I have referred it was stated:

"Since then [that is April 2004] the convict has conspicuously evaded execution of the sentence. He took part in the hearing prior to the issue of the judgment and appeared at the hearing where the decision was announced to enforce sentence. He witnessed announcement of each of those orders, he knew that he had to serve the sentence, therefore he failed to report to prison, however, and left his address without notifying the court thereof or stating his new address. In effect the court ordered the police to search for him and bring him to the penitentiary, yet the search was fruitless. It was only on 24 September 2009 that the police found out he was staying in England, most likely using an ID card issued to a different name...

The fact that the sentence has not been executed and yet is solely the result of illegal activities of the convict, who has been in hiding since the enforcement was decided."

6. There had been a previous hearing at Westminster Magistrates' Court on 11 June 2010. That was adjourned at the appellant's request. He was then represented by solicitors. The reasons given were that attempts were being made to compromise the situation in Poland. There was also a lack of time on that day, and the adjourned hearing took place, as I have said, on 30 July. At that hearing the appellant was represented by solicitors and counsel. Mr Sternberg, who appears today for the respondent, was also appearing at that stage. Mr Sternberg says that there was at that hearing a suggestion that there was to be an appeal hearing in Poland on 11 August but he has no recollection of that being in any way supported by documentary evidence. The Deputy Senior District Judge refused to adjourn the case and proceeded to make the order I have mentioned.
7. Mr Lagowski appears in person today with the help of an interpreter. He was represented by solicitors until a week or so ago when, at their request, the solicitors came off the record. A notice of appeal had been served by them. That was supported at a later date by grounds of appeal. The sole ground being taken:

"That the District Judge was wrong to conclude that the appellant was a fugitive from justice and that his extradition was not barred by section 14 of the Extradition Act 2003."

8. In his submissions this morning the appellant has not pursued that ground, and not surprisingly in my view; it appears to me to be hopeless in the circumstances on the evidence available. What he has said is that he is waiting for a judgment from a Polish District Court on a case in Poland, which, he says, has been back and forth between the Regional and District courts. He requests the court to defer its decision until further information becomes available from Poland. Polish solicitors acting on his behalf are seeking to have the European Arrest Warrant withdrawn. He says that documents were made available to the City of Westminster Court and this court should examine those documents. He does not believe that solicitors who have been acting until recently asked for those documents. He says that there is a lot of Polish information in them and that they were lodged.
9. His Polish advocate is still requesting the Polish court to discontinue the European Arrest Warrant, and he wants to know the result of that application before this appeal is determined. He submits that the City of Westminster Magistrates' Court knew he was awaiting a result from Poland and were aware that proceedings there were ongoing.
10. The court has not received from the City of Westminster Magistrates' Court any documents such as those the appellant claims to exist. Mr Sternberg has no recollection of such documents being referred to at the hearing on 30 July, though he does know that the suggestion was made on his behalf by counsel then appearing that there was to be an appeal hearing on 11 August in Poland. No further information has become available.
11. I would not be prepared to adjourn this case on the material now presented. There is nothing to suggest that either the Polish requesting authority or the City of Westminster Magistrates' Court have failed in any way in their duty to supply appropriate documents and I cannot accept that the case should be adjourned either on the belief that there are documents in the City of Westminster Magistrates' Court which this court should examine, or on, with respect, the nebulous statements about the continuation of proceedings in Poland.
12. Invited to address the court on the merits of the case, the appellant says that he now has a family life in this country. He has now lived here for four years. It appears that he lived in Italy before coming to this country. He has his home here. His fiancé is here and he has not committed offences within this jurisdiction. He further submits that he fears he might be killed if he returns to custody in Poland.
13. Those grounds do not appear in the grounds of appeal and were not pursued in the Magistrates' Court, save that an Article 8 submission was considered by the judge. That was dealt with by the Deputy Senior District Judge at paragraph 8 of her judgment. Having referred to the material before her, she stated:

"Sadly these facts do not begin to breach his Article 8 rights with regard to the extradition claim. The Norris v the United States [2010] test has to apply: 'it was inherent in extradition proceedings that interference with Article 8 rights would arise and only where there were quite exceptionally compelling features would that interference be otherwise than proportionate to the purpose extradition served'."

I agree with the District Judge's appraisal on that issue. I also agree with her appraisal of the effect of delay, though as I have said that is not a point pursued before this court.

14. The Deputy Senior District Judge referred to the case of Gomez and Goodyer v the Government of Trinidad and Tobago [2009] UKHL. The District Judge stated:

"he will by flight have brought upon himself such difficulty as may then ensue from the passage of time. We see no reason why he should not be required to accept again, save in the most exceptional circumstances. He, after all, would not merely be accused of the crime, but will actually have been convicted of it."

15. Thus, I have found no ground on which this appeal should be allowed, or in which this court should intervene to prevent extradition. I would decline an adjournment in this case on the ground of appeal stated in writing. I find that there is no merit on the further points raised this morning in relation to Article 8. There is no prospect of this case coming within that Article, and extradition being a breach of his rights under the Convention.
16. For those reasons I would dismiss this appeal.
17. MR JUSTICE RODERICK EVANS: I agree.
18. LORD JUSTICE PILL: Mr Sternberg, does anything else arise?
19. MR STERNBERG: I am sure it is simply I misheard what your Lordship said at the beginning. I heard your Lordship say Mr Lagowski, the appellant, under section 26 of the Immigration Act 2006.
20. LORD JUSTICE PILL: I said Extradition Act 2003. Thank you very much.