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
		17th July 2012

1. MR JUSTICE BEAN: This is an appeal by Karol Palczewski against a decision of District Judge Evans of 28th March this year, ordering his extradition to Poland. The appellant is alleged to have committed a committed an attempted robbery in 2002. The warrant issued by the Warsaw Regional Court says that he was convicted and sentenced to two years' imprisonment, of which he has not served so much as a day.
2. The District Judge was asked to grant an adjournment of the extradition hearing in order to permit the appellant to continue to prepare the case, in the wording of Mr Atlee's grounds of appeal, and specifically to investigate the appellant's instructions that the sentence of the Polish court was not two years' imprisonment but was a suspended sentence. The District Judge refused the adjournment, proceeded to the substantive decision and ordered extradition.
3. On appeal witness statements have been put in from Advocate Marcin Ropiak, a qualified advocate in a legal practice in Warsaw. He inspected the files at the Circuit Court and Regional Court and says, among other things -- and this is the paragraph on which Mr Atlee relied:

i. "There is no written evidence of any explanation or notification given to Mr Palczewski of the meaning of the term 'supervision of the probation officer' referred to in the wording of the sentence, or of any particular conditions related to the supervision."

4. A second witness statement similarly says:

i. "There is no record on the court files that any condition or requirement or definition of what was meant by the term 'supervision of a probation officer' were ever notified to Mr Palczewski."

5. I should probably not be looking at those witness statements, because the Divisional Court held in the case of Szombathely that it is incumbent on a defendant whose extradition is sought to put his case and the evidence in support of his case at the substantive hearing before the District Judge and that it is or may be too late to raise it on appeal. However, since Mr Atlee complains of the refusal of an adjournment below, I took the view that I should admit the evidence, and if that evidence plainly showed that some mistake had been made and that the warrant was clearly in error, that might give rise to an interesting argument as to whether one could go behind the straightforward statement in the warrant that a custodial sentence of two years was imposed and two years remains to be served.
6. But the evidence of Mr Ropiak does not go anywhere near doing that. I cannot find the reference to "supervision of a probation officer" in the warrant. It may be that something was said at the court. It may be, for all I know, that in Poland custodial sentences of two years' imprisonment are followed by a period under the supervision of a probation officer on release. It may be even that, as in England, a nominal sentence of two years in fact involves the defendant's release from custody on licence before the expiry of the two year period. I do not know. But taking Mr Ropiak's evidence at its highest and assuming that it is admissible, it does not contradict the warrant. Accordingly, the adjournment was rightly refused.
7. The other ground of appeal is that extradition would be incompatible with the appellant's Article 8 rights in that he lawfully left the jurisdiction of the Polish court in order to work honestly and industriously in the UK, and he was not in breach of the terms of any court order notified to him by the respondent judicial authority in so establishing himself.
8. This is fleshed out with a witness statement of the appellant's solicitor, Ms Chung, and I am prepared to admit that without hesitation because it sets out the appellant's personal circumstances in a way which is often done by counsel orally on an appeal; certainly, I do not consider that it is an argument shut out by the case of Szombathely. She says that her instructions are that the appellant came to England to find work, not to flee justice, that he has led a honest and industrious life here since coming here about ten years ago (I interpose that that should say eight years ago). He has worked at the same fish market for the past seven years. He has a girlfriend who works there too. He has a brother and father also settled in this country. He has learnt to speak English correctly. He has established strong roots in England. He has returned to Poland on three separate occasions and did not know or suspect that he was wanted there.
9. I am prepared to assume that all this is true, but it does not, in my judgment, begin to establish an Article 8 case against extradition. Mr Atlee is right to say that in the recent decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic of Genoa the Supreme Court did allow one of the appeals against extradition, and in that appeal the lapse of time was a significant factor, as was the appellant's new and blameless life in this country. The finding, as summarised in the headnote, was that in the case of Mrs HH, the mother of young children, the loss of her to her younger children would be exceptionally severe; her husband's ill-health would render him incapable of becoming the effective primary care giver; the offences for which her extradition were sought were of no great gravity; the overall period of delay between the commission of the offences and the bringing of the Polish prosecutions was considerable; and during that lapse of time the wife and her family had made new and blameless lives and the younger children had been born. The Supreme Court concluded that the public interest in returning her to Poland was not such as to justify the inevitable harm to the interests of two younger children.
10. This present case does not involve the interests of young children. The position is, as in so many cases, that the extradition of the appellant to Poland will involve hardship to his partner, who is living and working in England, and will involve an inevitable wrench to family life. But, as the House of Lords and Supreme Court have held in cases such as Gomes v Trinidad, Norris v United States and HH v Genoa itself, this only outweighs the public interest in honouring treaty commitments such as extradition in cases where the consequences are exceptionally severe. That is not the position here. Accordingly, this appeal must be dismissed.
11. MR ATLEE: May I make the usual application for assessment.
12. MR JUSTICE BEAN: Yes, indeed.