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
		14 February 2012

1. MR JUSTICE COLLINS: This is an appeal against the decision of District Judge Rose, sitting in the City of Westminster Magistrates' Court, as long ago as 24 June 2011, ordering the appellant to be extradited to Poland in order to serve a sentence of some 2 years and 10 months which was imposed for a large number of drug offences, which involved, it seems, with others, either supplying or sharing in the use of marijuana.
2. The offences in question were committed between 1997 and 2001, and so they are quite ancient. But in 2004 the appellant decided to leave Poland because, as he accepts, he did not want to serve the sentence which was imposed. He says that it was a matter which was thoroughly unfair in all the circumstances, and because he thought it unfair, he decided to leave the country.
3. He set up life here. He has worked here since then and, more importantly, he has entered into a relationship with a fellow Pole who has a daughter and he has effectively taken on family life and has assisted to look after his partner and daughter. She at the moment is studying. Accordingly, it is going to be very difficulty for her to cope if he is extradited, and in particular if he has to serve the sentence which has been imposed. Whether he will, in any event, have to serve the whole of that or whether there is early release is not a matter which I have any evidence about but I know from other cases that, on the whole, there is a possibility of early release in the Polish system.
4. The hearing before the District Judge did not raise any of the issues which he now seeks to rely on. No evidence was produced to show that there might be a breach of Article 8 of the European Convention on Human Rights, and the other matter that Mr Plotkowski seeks to raise is a fear that if he is returned to prison he will suffer because of the conditions in Poland and also because of those who were convicted with him. He wants to keep out of their way because it may be that they have some axe to grind against him.
5. So far as conditions in Polish prisons are concerned, there is no doubt that before 2008 there was certainly evidence -- indeed the position appears to have been clear -- that they did not meet proper standards. So much is evident from the decision of the European Court of Human Rights in Orchowski v Poland (17885/04), a decision made on 22 January 2010. But the court indicated in that case that the situation had improved because the authorities had begun to do something about it. Accordingly, there is no ability now to rely generally on prison conditions in Poland. Poland, of course, is a signatory to the Convention, so it can be at least hoped that it will do what it can to comply with the terms of the Convention.
6. The Article 8 issue was, as I say, not raised. That meant that no evidence was produced below. The appellant now wishes to rely on his own statement and that of his partner in order to show that it would be disproportionate to return him.
7. I take the view that it is necessary where an Article of the Human Rights Convention is in issue to consider any material which is produced, even if it was not, but could have been, produced below and if, but only if, having considered it, the court takes the view that it is likely to be determinative. That is to say that, if accepted, it would mean that it would be disproportionate to return, then the court would have to act on it because the court is itself a public body and thus is bound to comply with the Human Rights Act 1998. That means, of course, that it cannot make a decision which breaches human rights, whether of the appellant himself or of his partner or child.
8. But, having said that, there is no doubt that in extradition cases, proportionality has to be considered on the basis that an offence has been committed -- I am concerned here with a conviction case -- and a sentence has been imposed -- in this case a substantial sentence for some 31, or thereabouts, offences involving, as I say, the provision, or sharing in the use, of drugs.
9. In those circumstances, as I say, the court will tend to the view that return would be proportionate unless there are very strong grounds for showing that the effects on family life are convincingly strong.
10. In this case, the concern is, as I have said, that were he to be returned, then it would be difficult, if not impossible, for his partner to continue to be able to look after the child and that would mean that the child would be uprooted from her life in this country. The difficulty is that wherever a parent commits an offence which merits imprisonment, there is inevitably a damaging effect upon his family. His partner and child are Polish and in principle they can return to Poland however difficult that might be. Equally, arrangements might be able to be made in the meantime for them to manage here. The difficulty is that this is a case where the effect is such as one would expect where there is a child and if this case is one on the facts which the court is satisfied would mean that it was disproportionate to return, then it is difficult to see that the door is not opened remarkably widely.
11. I take the view that whatever the Supreme Court does in the case of HH v City of Westminster Magistrates' Court [2011] EWHC 1145 (Admin) which might lower the threshold set by Norris v Government of the United States of America [2010] UKSC 9, it cannot come down so as to mean that in this case on its facts, or similar cases, return was disproportionate. It may be that when he gets to Poland he will be able to persuade the authorities there that he does not need to serve the whole of the sentence because of the situation since and because he has behaved himself since and because it was a long time ago that the offences were committed. His life has undoubtedly changed. But that is a matter for the Polish court, not for this court.
12. He tells me, incidentally, that his Polish lawyer is going to make an application to the Polish court to withdraw the warrant. It is, I am afraid, far too late for that to be taken into account and I am not prepared to adjourn the matter to enable that to be done. It should have been done a long time ago, if that was considered to be an appropriate course.
13. In all the circumstances, I am afraid that this appeal must be dismissed.