England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 December 2010

1. MR JUSTICE WILKIE: This is an appeal by Jacek Dyna against a decision of the City of Westminster Magistrates' Court given by District Judge Tubbs on 20 July 2010, ordering the extradition of Mr Dyna to Poland pursuant to a European Arrest Warrant issued on 12 October 2005.
2. The basic facts were that, on 20 March 2001, at a hearing at which Mr Dyna was present, the relevant district court in Poland found him guilty of an offence of fraud, committed on 22 September 1999. A sentence of 1 year and 6 months was imposed but to be stayed for a period of 4 years, known as a probation period. On 5 November 2004 the district court ordered the execution of that penalty of imprisonment and, on 12 October 2005, a European Extradition Warrant was issued, which was duly certified on 2 December 2005.
3. At some point in 2007 Mr Dyna was arrested in Spain pursuant to the European Arrest Warrant, but those proceedings were aborted as he left Spain. The district judge did not deal with the extradition request on the basis that Mr Dyna had deliberately fled from Spain. He was, however, arrested on the European Arrest Warrant on 17 February of this year. An extradition hearing was listed for 15 March, when various procedural matters prevented the hearing taking place; it was adjourned until 20 April. On that occasion an application was made on behalf of the appellant to adjourn the hearing on the basis that there was a hearing in Poland listed for 20 May, at which it would be argued that the custodial sentence should be further stayed. Accordingly, the district judge adjourned that hearing in order to enable matters in Poland to crystallise.
4. The matter came back before the Magistrates' Court on 14 June, when a further application was made for an adjournment in order that the European Arrest Warrant might be compromised in Poland. That was refused and the hearing took place, at which Mr Dyna gave evidence. However, the final decision of the district judge was adjourned until 20 July.
5. At that stage two issues were raised in opposition to the warrant being executed and extradition ordered. The first was that the warrant was not valid as insufficient particulars had been provided to comply with section 2 of the Extradition Act 2003. The district judge did not accept that argument and that has not been raised on appeal.
6. The second argument was that the extradition was barred by virtue of the passage of time pursuant to section 11(1)(c) and 14 of the Extradition Act 2003. In particular, section 14 provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if, and only if, it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large, as the case may be".

7. On 14 June, in his evidence, Mr Dyna apparently said that he was working in a construction business named after his Polish colleague. It was said that that business would collapse if he were extradited. The district judge, in dealing with this submission, said as follows:

"There is no evidence to support that assertion. The court was given no details of the business, for example how many people were employed by the company, what outstanding contracts remained to be completed, or what the financial position of the company was".

8. The district judge noted that nearly all extraditions involved a measure of hardship and inconvenience for the extraditee and his family. She referred to a passage in Gomes and Goodyear v Government of Trinidad and Tobago [2009] UKHL 21, paragraph 31:

"The test of oppression will not be easily satisfied. Hardship, a comparatively common place consequence of an order for extradition, is not enough".

The district judge went on to conclude that it may be that a measure of inconvenience and hardship might ensue in this case, but the defendant has not established that his extradition to serve his sentence of imprisonment would be oppressive within the meaning of the Act. No causal link had been established with the passage of time. Accordingly, she made the order sought.

9. The grounds of appeal on this issue give more details than were apparently given in evidence before the district judge. Reference is made to the limited nature of his wife's earnings and his financial commitments in terms of bills and mortgage payments. Mr Dyna claimed to be an owner of Dyna Construction; that he had contracts for renovation and refurbishment of a particular property which, if it was not finished, would make his company bankrupt. There were also agreements with other sub-contractors to finish that contract, who would lose money and jobs if he were unavailable to complete the contract. He then gives details of the building up of this business since 2004, specifically referring to a large project in 2006.
10. He told me in the course of the hearing that he had references, which he produced, from Prozinsky and Co Accountants and Tax Advisers, who confirmed that he is self-employed in the construction industry; and from Mr Gordon Way, dated 17 June 2008, who confirmed that he had worked with Holeksa Construction (Mr Dyna and Mr Holeksa) for the last 3 years on different building contracts. This accorded with the evidence given before the district judge, namely that he was effectively in a partnership. Mr Dyna informed me that his partner is his brother-in-law, Mr Holeksa, and that Mr Holeksa has a 21 year old son who speaks English and who works in the business.
11. Miss Lindfield for the prosecuting authority has drawn my attention to various passages in the case of Gomes and Goodyear referred to by the district judge, and also to the following passage in the case of Merga v Regional Court in Krakow [2008] EWHC 3253 Admin at paragraph 16:

"Extradition inevitably causes a degree of hardship, perhaps quite significant hardship, on an unsuccessful fugitive. That is as much the case in the present circumstances as in a great many others that come before the court. It is true that he has put down considerable roots in this country; he has family ties here and business ties. For my part I accept that it will be a considerable burden on him, and indeed for his family, for him to return to Poland. However, having said that, this case, in my judgment, falls far short of his having established that it would be oppressive in the terms of the legislation for him to be returned to Poland, and in such circumstances amount to a bar to extradition".

12. I echo those sentiments in their application to the present case. I have no doubt that, if extradited, it would be highly inconvenient and difficult for the business. Mr Holeksa, with whatever assistance he may obtain from his son and others, would have to try to carry on the business without the benefit of Mr Dyna's efforts, which apparently includes a greater facility in the English language to deal with clients and sub-contractors. But I share the judgment of the district judge that it does not, though it may amount to hardship, amount to what would be oppressive within the meaning of the Act. Accordingly, I do not find in Mr Dyna's favour on that ground of the appeal.
13. In addition, he seeks to argue that the order of the court in Poland giving rise to the risk of immediate imprisonment is either unlawful in itself or may be susceptible to some form of appeal or review by a higher court in Poland. He maintains the account which he has given throughout, that his lawyers in Poland are actively pursuing his interests before those higher courts in Poland; that there are proceedings pending before those courts, although as yet there is no firm date for a hearing of his appeal or application for review because of the large number of cases awaiting hearing.
14. In my judgment, that cannot, in this case, constitute a bar to the making of the extradition order which is sought by the prosecuting authorities. The courts in this country, once an EAW has been certified by the body designated for the purposes of the Extradition Act 2003, must take the warrant at face value, provided it is on its face a valid warrant as the district judge concluded. If there are proceedings in Poland which, upon his return, may result in the sentence being further suspended or the order activating it being in anyway quashed or substituted, then that is entirely a matter for the Polish authorities and for Mr Dyna and his Polish lawyers to pursue. It cannot affect the lawfulness of the warrant itself or the propriety of an extradition ordered pursuant to the warrant.
15. Accordingly, whilst I appreciate the hardship that it will involve, I cannot allow this appeal and this appeal is dismissed.