England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		7 February 2012

Tuesday 7 February 2012

MR JUSTICE COLLINS:

1. This is an appeal against a decision of District Judge Evans given on 9 December 2011 ordering that the appellant be extradited to Poland in order to serve the balance of sentences (four months' imprisonment) imposed for a number of offences. It is unnecessary to go into the details of the offences since no issue is taken as to the correctness of the warrant in relation to them.
2. The point taken relates to the fact that following the imposition of a conditional sentence the appellant left Poland. In 2006 it was decided by the court that he should be recalled in order to serve the balance of the sentence. It is not clear from the warrant the conditions he breached in order to require that the sentence be served, but that is not material.
3. The appellant has obtained through Mr Fidler's firm, by whom he is represented, further evidence, which was not available in the court below, from the Polish lawyer who represented him at the hearing in Poland. He was concerned with the decision of the Czestochowa Regional Court which, I think, is the court which dealt with an appeal. In any event it matters not because the original court was the District Court of Opole.
4. Be that as it may, the point that arises from the report obtained from the Polish lawyer, and what Mr Fidler now relies on, is that there was no condition imposed in the form of a ban to leave Poland. Mr Smith makes the point that the original sentence, which carried with it conditions, was not imposed by the District Court of Czestochowa. That being so, we do not know whether there was or was not originally such a condition. However, I am content to approach the case on the basis that there was no such condition which was material at the time the appellant left Poland because in my judgment it does not affect the outcome of the appeal.
5. Mr Fidler submitted, first, that an inference could be drawn that that was the only condition. It seems to me clear that that is a submission which is bound to fail. No such inference can be drawn. It is true that the warrant does not indicate the conditions that were imposed. All that it says in relation to that matter is:

"After passing the sentence in May 2005, on 15 November 2005 the appellant was released conditionally by the District Court of Opole in anticipation for approximately six months before full serving of custodial sentence."

Quite what is meant by "in anticipation for approximately six months before full serving of custodial sentence" is not entirely clear. It may be that he was given that space because of overcrowding in the Polish prison system, because we know for a fact that there is gross overcrowding in that system. It may be that it simply meant that the sentence was to be served later. It may be that there were conditions imposed. We do not know. However, it is not a material matter which requires to be specified within the warrant. It does not fall within section 2 of the Extradition Act, and Mr Fidler does not seek to argue that it does. His contention is that it is a matter which the court should regard as falling within section 20. He submits that it is the equivalent of a conviction in absentia. However, section 20 quite clearly refers only to "convictions" in absentia. What happened here was on any view not a conviction.

6. This point has been dealt with by the Divisional Court in Baksys v Lithuania [2007] EWHC 2828 (Admin) (Moses LJ and Jackson J). It was decided by that court that section 20 applied only to convictions. Mr Fidler has referred me to paragraph 15 of the judgment of Moses LJ where he says this:

"Again this argument fails on the basis I have already identified. There is simply no material, let alone any evidence, to suggest otherwise than what happened on 10 May 2004 was merely the consequence of the imposition of a sentence on 13 March 2002. There was no fresh conviction and no fresh imposition of a sentence. The justification for what happened on 10 May 2004 was the conviction and sentence imposed on 13 March 2002, at which the appellant was present and which he had every opportunity to resist."

7. In this case the appellant was present when convicted. The requirement to serve the sentence was a matter which arose as a result of the original sentence. There was no fresh conviction here and there was no fresh sentence imposed. The order was to serve the balance of the original sentence which had been imposed.
8. If I were persuaded that Baksys was clearly wrong, it is not binding on me and I would not follow it. But not only am I not so persuaded, I am satisfied that it is clearly right.
9. In those circumstances this appeal must be dismissed.