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Cite as: [2013] EWHC 604 (Admin)

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		Neutral Citation Number: [2013] EWHC 604 (Admin)
		CO/9669/2012

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

Royal Courts of Justice
Strand
London WC2A 2LL

15 February 2013

B e f o r e :

MR JUSTICE COLLINS
____________________

Between:

	JARMULA	Claimant
	v
	REGIONAL COURT OF TARNOW POLAND	Defendant

____________________

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____________________

The Claimant was not present
Mr B Gibbins (instructed by CPS) appeared on behalf of the Defendant
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE COLLINS: This appeal under section 26 of the Extradition Act 2003 has a very unfortunate procedural history. The decision of the District Judge, that the appellant should be sent back to Poland in order to serve a sentence of 10 months' imprisonment which had been imposed for an offence of possession of amphetamines with intent to supply, came before the District Judge on 7 September 2012. I should add that the supply of amphetamines was committed by the defendant when he was a serving prisoner. Accordingly, it is not surprising at all that a sentence of imprisonment was imposed. It is fairly obvious that he must have had previous convictions in order that he be a serving prisoner.

He has been in this country now for some time having left Poland in order to avoid serving the sentence. His case was that he had lived with his partner, and a child of hers from a previous relationship and two other children, who were then 16 months and 4 1/2 years old. His partner does not work and, since he has been in custody - I should add that he has remained in custody since his arrest on 13 June of last year - his father-in-law has come over from Poland to help his partner look after the children. He said that he would be severely affected were he to return to Poland, both economically and emotionally. The decision of the Polish court is a fairly old one in that it was in 2001, but he accepted that he had left Poland while he knew that the case against him was ongoing. Apparently, he had appealed and he says he was expecting his appeal to succeed.

His partner and three children were Polish but he did not accept that he had agreed, which apparently was the allegation, that she should go back to Poland with the children because, he said, life was better here than in Poland and the children were here at school. The problem he says he faced is that there would not be any work available for him in Poland. That was the basis upon which it was argued that it would be contrary to Article 8 for him to be removed because of the adverse effect upon his family, that is to say, his partner and the three children.

The District Judge made the point that his partner had managed for 4 months, now nearly 8 months, while the defendant had been held in custody and assistance had been available. There was no reason why, if he went back to Poland at that stage, and even less reason now because of the short time that is left to serve, only some 2 months or so, why either she should not continue to cope here or to go with the children back to Poland.

The reality is that the District Judge was entirely correct to decide that this was not a case within the principles set out by the Supreme Court in HH that determined whether in terms of Article 8 it would be disproportionate to remove. I have said that there has been an unfortunate history. This is the third occasion on which this appeal has been listed and on the previous two it had to be adjourned.

The solicitors who were representing the appellant came off the record by leave of the Master in November last year. A production order had been made to the prison. The appeal came before me on 29 November 2012 but the prison had failed to honour the production order. Accordingly, I felt it necessary then to adjourn it. It was relisted on 31 January of this year. It came before Mitting J and precisely the same happened: the prison failed to honour the production matter and, again, the matter was adjourned. Now we have exactly the same today. The one direction I make is that enquiries be made to establish why it is that the prison authorities have failed to comply with the production orders on the occasions in question. First of all, an explanation needs to be given in writing and, secondly, someone must attend, if a decision is made, that the wasted costs as a result of these failures should fall to be paid by whoever is responsible. That is for the future.

As it is, the appellant has not been here this morning and normally it would be difficult if not impossible for a court to determine the appeal in the absence of an appellant who was unrepresented. However, for the reasons I have given, I am entirely satisfied that there is no merit in this appeal. So far as any fresh evidence is concerned that cannot be put forward because it should have been produced before the District Judge if it is said to be in any way material. Accordingly, as I say, there is no basis as far as I can see upon which it could conceivably be established that there is a bar to extradition.

However, recognising that the appellant has not been present, what I propose to do is to say that this order dismissing the appeal will not come into effect for 7 days. If, within that period, the appellant submits reasons in writing why he says that extradition should not take place, then those reasons will be considered. In the absence of any such representations being made within the 7 day period, this dismissal will come into effect at the expiration of that period. If, as I say, he does make written submissions, they will immediately be put before the judge. It will not necessarily be me because I might not here. The matter will then be considered first of all on the papers and if the judge decides that he ought to be able to make oral representations no doubt he can so order. But I make the point that, since 8 months of the 10 months have already expired, it will need a very speedy consideration if the time which he was due to serve in Poland has not expired by serving it in this country.

Can you very kindly draw up the order in those terms?

MR GIBBINS: My Lord, I will.

MR JUSTICE COLLINS: So it is made accurate. That will have to be served on him as soon as possible. Thank you very much for your help, particularly in the other case, although it turned out to be unnecessary in the end.