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
		20 May 2013

MR JUSTICE KEITH: On 25 February the appellant, Tomasz Modzelewski, was arrested pursuant to a European arrest warrant which had been issued by the Regional Court in Warsaw, Poland on 29 October 2012. The warrant had been certified by the Serious Organised Crime Agency on 14 February 2013. The warrant was what is colloquially called a conviction warrant. It sought Mr Modzelewski's extradition to Poland so that he could serve a sentence of two years' imprisonment for an offence of - what in our law would be - arson.

Mr Modzelewski was legally represented at the extradition hearing at Westminster Magistrates' Court on 19 March. No bars to his extradition were advanced save that Mr Modzelewski was seeking to compromise the warrant. In the result, District Judge Evans ordered his extradition to Poland. Mr Modzelewski now appeals against that order. He is not represented today. His previous solicitors who drafted his grounds of appeal no longer represent him.

Poland has been designated as a category 1 territory pursuant to Section 1 of the Extradition Act 2003. Accordingly, Mr Modzelewski's extradition to Poland is governed by Part I of the Act. Section 21 (1) of the Act (which is in Part I) requires the court to decide whether an appellant's extradition would be incompatible with their rights under the European Convention on Human Rights. One of the three grounds of appeal referred to in the grounds drafted by his solicitors is that Mr Modzelewski's extradition would be incompatible with his rights to respect for his private and family life protected by Article 3 of the Convention. The relevant parts of his grounds of appeal read:

"I have lived in the UK since 2007 with my wife. We have a 9-year old son. I am self-employed and my wife is a self-employed cleaner."

Today the appellant has handed in references from two families, one for whom Mr Modzelewski works as a cleaner and gardener and another who has known Mr Modzelewski for the past six years and says he is a very hard worker and honest and respected.

There are two problems with Mr Modzelewski relying on the fact that he, his wife and son have now settled in this country. First, Mr Modzelewski did not argue in the Magistrates' Court that his extradition would be incompatible with his Article 8 rights. This ground of appeal is therefore necessarily reliant on fresh evidence. Although new grounds of appeal can be raised on appeal, they can only be raised if they do not rely on fresh evidence unless that evidence was not available at the extradition hearing in the sense either that it did not exist at the time or could not have been obtained with reasonable diligence. It has not been suggested that the evidence on which Mr Modzelewski would seek to rely was not available at the extradition hearing. It follows that this ground of appeal cannot be pursued. In any event, on the facts which Mr Modzelewski wishes to advance, this ground of appeal would not have had any prospect of success.

As is well known, the recent decision of the Supreme Court in HH v Deputy Prosecutor of the Italian Republic Genoa [2012] 3 WLR 90 requires the court in cases where young children are involved to balance the conflicting interests of safeguarding their rights under Article 8 on the one hand, and of complying with the obligation to extradite people convicted of criminal offences, honouring extradition treaties and ensuring that this country does not become a safe haven for those who wish to avoid the criminal process in their own country on the other, and that balancing exercise with the interests of any children must be a primary consideration and at the forefront of one's mind.

To that should be added the fact that there is nothing before the court to suggest that the Polish authorities have considered whether issuing a warrant was proportionate in this case. Although it is not appropriate for me to question the issue of the warrant, HH does make it clear that the courts here must consider the proportionality of the extradition under the warrant when an issue arises under Article 8. Unquestionably, there will be some hardship to Mr Modzelewski's family as a result of the loss of his income while he is serving his sentence in Poland. But his wife is the primary carer of their son, and it is not suggested that social services were involved in their lives which might have put into question his wife's ability to provide adequate care for the son.

Balancing all these circumstances, I would have concluded that Mr Modzelewski's extradition would not have been a disproportionate interference with either his or his son's family life or indeed that of his wife.

The second ground of appeal in the grounds of appeal drafted by his former solicitors is that his Polish lawyers were applying to the court in Poland for his sentence to be suspended on condition that he pays the original fine which they have calculated to be equivalent to about £2,500. That, at any rate, was what the grounds of appeal said and that, I assume, is what the reference to compromising the warrant related to. Today, Mr Modzelewski told me that he did not know whether his Polish lawyers had yet written to the court in Poland asking for his sentence to be suspended in terms although he told me that they were going to the Polish court today to ask them that. He does have a letter with him which has been looked at by Miss Natasha Draycott who appears for the requesting authority. She has told me that it looks as if it is a letter from his Polish lawyers to the court. However it is dated 11 May. In addition, he has provided her with a document which purports to be a receipt for the amount which is said to constitute the fine.

The difficulty for Mr Modzelewski is that there is absolutely nothing to suggest that a decision on his request, assuming that a request was made by the letter of 10 May, is likely to be imminent. In Baghishyan v District Court in Zamusc, Poland [2011] EWHC 1297 Admin, Mr Justice Ouseley said (paragraph 5):

"5 ..... Save in the most exceptional circumstances where there might be a delay of only a day or so, this court does not adjourn proceedings so that possible compromises can be awaited. To do so would be to introduce a bar to extradition by the side wind of an adjournment, contrary to the provisions of the Extradition Act, which set out what are the statutory bars to extradition. It is not for the court to make so large an exception to the normal operation of extradition."

In the circumstances, because there is absolutely nothing before the court to suggest that a decision on the request contained in the letter of 10 May is imminent, it would not be appropriate for the court to adjourn the hearing today. If the court in Poland eventually agrees the suspended sentence and it is permitted to leave Poland while he is suspended, then he can return to this country.

A third ground of appeal referred to in the grounds of appeal drafted by his former solicitors is that he fears for his safety when he returns to Poland because he was exposed to threats of attacks from criminal elements in his home town before leaving for the United Kingdom in 2007. He said that last year his grown-up son was attacked when he went there. That does not justify allowing his appeal. He will be in prison when in Poland, not at liberty.

It follows that this appeal must be dismissed.

(To appellant) Mr Modzelewski, you may not have understood all of that. I have refused your request for an adjournment. I have considered your appeal today. I have dismissed your appeal. You will therefore be extradited to Poland.

MISS DRAYCOTT: I am grateful to you for hearing it first.

MR JUSTICE KEITH: Thank you for your researches.