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
		9th June 2011

1. LORD JUSTICE AIKENS: This is an appeal by Arkadiusz Werner ("the appellant") who is a Polish national aged 39, from the decision of District Judge Tubbs on 18th January 2011, whereby the surrender of the appellant to the Circuit Court in Poznan Poland was ordered pursuant to an European Arrest Warrant which had been issued by Judge Sygrela on 19th November 2007 and certified by the SOCA on 25th April 2008.
2. Before the District Judge there had been an uncontested extradition hearing. That fact formed originally part of the grounds of appeal to this court which is brought pursuant to section 26 of the Extradition Act 2003 ("the EA"). The appellant lodged his notice of appeal on 20th January 2011.
3. The background facts are as follows: in October 2004, the appellant committed a number of offences when he attempted to steal a computer from an electrical and IT store in Wolsztyn, Poland. He smashed a plate glass window and damaged computers and other goods in the shop. However, he was only charged with one offence, according to the EAW, which was that of attempted theft and burglary and damaging property all rolled up into one. The equivalent offences in England would be attempted burglary and criminal damage.
4. The appellant was convicted by the District Court of Tomysi in his presence on 9th February 2005. He was sentenced to a custodial sentence of one year and four months but it was suspended conditionally for a probationary period. However, on 1st June 2007 the District Court at Wolsztyn ordered the execution of the custodial sentence and on 29th June 2007 the same court issued a notice to recall the appellant. The appellant came to the UK in November 2009.
5. The hearing before the District Judge was short and there is no formal judgment of District Judge Tubbs before us. However, there is an agreed note of the hearing which was signed by Mr Harbinson of the CPS's Extradition Unit, who appeared on behalf of the requesting court, and by Mr Green, who was a duty solicitor at the City of Westminster Magistrates' Court on 18th January 2011 and who represented the appellant on that day.
6. The note records that the District Judge stated that she was satisfied that the person before her was the same as that named in the EAW. The appellant was asked if he consented to the extradition and he said he did not. Mr Green told the District Judge that the matter could proceed by way of an "uncontested extradition hearing" at which no bars or issues would be raised.
7. In the agreed note of the extradition hearing, it records what then happened, at paragraphs 3 and 4:

"3. The Court was addressed on behalf of the Issuing Judicial Authority that the European Arrest Warrant sought the Requested Person's return for the purpose of executing a custodial sentence of one year and four months for an offence of attempted burglary committed on 1st June 2007. Mr Harbinson submitted that s.10 of the Extradition Act 2003 was satisfied by s.65(3) of the Act, the conduct having occurred in the territory of Poland, meeting the dual criminality test and a sentence greater than 4 months having been imposed. Both the District Judge and Mr Green agreed with this submission. No bars to extradition were raised by the defence and no issues were taken under s.20 or 21 of the Act. Mr Harbinson therefore requested that the District Judge make an order for Extradition Pursuant to s.21(3) of the Extradition Act 2003.

4. The District Judge, being satisfied that the offence in the European Arrest Warrant was an extradition offence, that there were no bars to extradition, that no decision had been rendered in absentia and that the Requested Person's Extradition would be compatible with his human rights, accordingly made an order for extradition pursuant to s.21(3) of the Extradition Act 2003."

8. The duty solicitor has produced notes which we have been permitted to see, which show what occurred during the course of the advice given by him as a result of allegations made by the appellant that the duty solicitor failed to follow his instructions at the time of the hearing before the District Judge. The notes indicate that the appellant told the solicitor that there was an outstanding application in Poland for clemency and that the appellant had paid a Poland based lawyer £5,000 to act on his behalf in those proceedings. The notes also state that the appellant had paid for the "damage" and that the appellant had suspected that his ex-wife had "caused this to be activated". The note also says that the appellant was employed and earning between £250 and £300 a week and now had a partner in the United Kingdom. The note also records that the appellant agreed that there were no bars or issues "to the required standard". It does not say what instructions were given to Mr Green by the appellant. There is no endorsement about service of the EAW nor a confirmation as to when he was arrested or any endorsement about a lack of bars or issues.
9. Originally, the appellant's first ground of appeal was to be that that Mr Green had failed to obtain proper instructions from the appellant at the hearing before the District Judge and that he, the appellant, had been unable to make himself properly understood. We have been told this morning by Mr Malcolm Hawkes, who represents the appellant today, that that specific ground of appeal is no longer being pursued.
10. It would not have been of any advantage, even if it had been pursued, however, unless there was something in the other two proposed grounds of appeal. Those are, first, that the appellant has now paid the compensation that was ordered to be paid by the Polish court and that in the circumstances there is every possibility that the activation of the suspended sentence will now be rescinded with the consequence, effectively, that there is no sentence to be served. Therefore the EAW does not serve any useful purpose. The second proposed ground of appeal is that the appellant's return would be in breach of his Article 8 rights as to family life and would be disproportionate in all the circumstances.
11. As to the second ground, paragraph (f) of the EAW states that the payment of the compensation was due to be made by 21st February 2007. By his own admission, the appellant did not pay the compensation until some time in 2010. Furthermore, it is clear from the same paragraph in the EAW that the reason for the activation of the custodial sentence is that the appellant failed to comply with the requirements of the Polish Probation Service because he ceased to have contact with the probation officer after January 2006 and he changed his mobile phone.
12. We have been told that there have been attempts in Poland to obtain the "deactivation" of the sentence which was originally suspended and then activated. Court hearings in Poland have been set in order to decide this issue, but it appears that each time they have been adjourned. The latest adjournment took place on 24th May 2011. As a consequence of those adjournments, there have been two adjournments of the appeal hearings in this court. We have a note in front of us by Mr Jerzy Synowiec, who is the advocate who has been instructed, privately funded, by the appellant in Poland. This stipulates that proceedings in the District Court of Wolsztyn were taking place with the aim of postponing the fulfilment of the sentence of deprivation of liberty which had been previously passed. The note says:

"It is expected that a court hearing in this matter will take place in July of this year."

The note goes on:

"In the case of the Court agreeing to postpone the fulfilment of the sentence for a combined period of one year, the possibility then arises of the fulfilment being conditionally suspended again ... and that is my present goal as regards the activities I am carrying out as the defender of A Werner."

13. Mr Hawkes tells us this morning that, in fact, the advocate in Poland has been effectively doing precisely the opposite of what Mr Werner wants. That is because it appears that the Polish lawyer has been advocating that the Polish court should adjourn its decision on whether or not to "deactivate" the sentence until this court has decided whether or not the present appeal should be allowed. In fact, Mr Hawkes submits to us, Mr Werner wished that precisely the opposite be done: namely, that the Polish court should decide the issue of whether or not there should be this deactivation because, if it did so hold, then that would be of assistance to this court in deciding the current appeal.
14. Whatever the position may be as between Mr Werner and his Polish based advocate, we have to deal with the position as it is. The position is that no decision has been made by the Polish court and it is only the Polish court that can decide whether or not there should be a postponement of the fulfilment of the "sentence of deprivation of liberty", to use the words in the Polish lawyer's note. In my judgment, therefore, we must proceed to deal with the case on the merits.
15. Mr Hawkes puts in the forefront of his argument today the proportionality argument. He submits that extradition would be disproportionate for two reasons. First of all, although this was not particularly emphasised by Mr Hawkes, there is the fact that the appellant has a long term partner in England from whom he would be separated if he were to be returned to Poland. Allied to that is the fact that the appellant has had major health problems, which include a personality disorder and two heart attacks. Mr Hawkes told us that there are currently health problems which are being attended to. But, most importantly, Mr Hawkes emphasises the fact that, since the offences were committed six and a half years ago, the appellant has been entirely free from any criminal activity and so has to be regarded as a rehabilitated offender. Mr Hawkes' submission is that, if the extradition order were to be made good, then that would reverse this process of rehabilitation and the impact would be disastrous. Added to that, the simple fact of him being returned to Poland could seriously affect his health.
16. In my view, that is not a basis on which this court could conclude that the return of the appellant pursuant to the EAW would be either contrary to law or disproportionate. In my view, it is necessary and proportionate for the maintenance of law and order in a democratic society that the EAW is given effect in this case and it would not be disproportionate for this to be done.
17. Accordingly, I would be minded to dismiss that ground of appeal and, as no other ground is now put forward by Mr Hawkes, it follows that in my view this appeal must be dismissed.
18. MRS JUSTICE SWIFT: I agree.
19. LORD JUSTICE AIKENS: Thank you very much, Mr Hawkes.
20. MR HAWKES: My Lord, might I ask for a detailed legal aid assessment?
21. LORD JUSTICE AIKENS: Yes.
22. MR HAWKES: I am grateful. My Lord, there is one other matter. I understand you may make a direction as to when the appellant be removed. The normal course of events is that there is a 14 day window during which a question to be certified to the Supreme Court may be lodged and then the actual act of extradition takes place in the ten days thereafter.
23. LORD JUSTICE AIKENS: Yes.
24. MR HAWKES: That would bring the date at the latest to about 3rd or 4th July. I wonder if my Lord might direct that Mr Werner not be removed until a later date in July, perhaps towards the end of the month.
25. LORD JUSTICE AIKENS: Well, what is the point of that? If there is going to be this hearing in Poland, is it not better that he be there for his own sake.
26. MR HAWKES: My Lord, Mr Werner, throughout the history of these proceedings, has wished not to be there and has wished for someone else to represent him.
27. LORD JUSTICE AIKENS: So you are effectively asking for an order that there be a delayed return.
28. MR HAWKES: Yes.
29. LORD JUSTICE AIKENS: Well --
30. MR HAWKES: I would say that there is clearly no burden on the public purse. He is not being held in custody. Of course, I do accept that, as Mr Grandison would say, these matters need to be dealt with expeditiously, but I wonder whether it is the lest prejudicial, if that is not putting it too highly, way of coping with the rather peculiar circumstances of this case, particularly his blameless situation as somebody who has not had the best representation in Poland, as it would seem.
31. LORD JUSTICE AIKENS: Fine. Thank you. Mr Grandison?
32. MR GRANDISON: My Lord, it is strongly opposed. Such a delay would obviate the whole purpose of adjournment in the first place, and I understand the matter would not be before this court, but, once extradition has been ordered and once the appeal has been dismissed, it is then for SOCA to comply with the time lines and for the judicial authority to ask for an extension, if necessary, and they can agree one, but certainly not in circumstances such as this. Whilst I understand there are issues regarding health that we have heard about, no evidence has been forthcoming, save for the psychiatric issues dated back to 2004, and in those circumstances it clearly would not be correct to obviate the purpose of this extradition order by delaying it.
33. LORD JUSTICE AIKENS: Thank you. (pause) No, Mr Hawkes, we will not make such an order.
34. MR HAWKES: Thank you, my Lord.
35. LORD JUSTICE AIKENS: Thank you for your help. Thank you both very much.
36. MR GRANDISON: Thank you my Lord.