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
		1 March 2013

1. MR JUSTICE KEITH: On 21 January 2012, the appellant, Tomasz Czerwinski, was arrested pursuant to a European Arrest Warrant which had been issued by the Circuit Court, Poznan, Poland on 17 November 2008. The warrant had been certified by the Serious Organised Crime Agency on 9 January 2012. An extradition hearing took place at the City of Westminster Magistrates' Court on 11 December 2012 when Senior District Judge Riddle ordered Mr Czerwinski's extradition to Poland. He now appeals against that order.
2. The warrant is what is colloquially called a conviction warrant. It relates to five offences. The first four covered the time when he was a member of a criminal gang in the late 1990s. One offence related to his membership of the gang. In another, he was concerned in the supply of drugs. In the third, he and other members of the gang terrorised someone while assaulting them and demanding money. In the fourth, he committed an act of attempted theft aggravated by violence. He was sentenced to four years' imprisonment. The fifth offence was committed in December 2000. It was for withdrawing amounts from his bank account knowing that there were insufficient funds in the bank at the time. He was given a suspended sentence of twenty months' imprisonment. That was later activated when he committed other offences. He is yet to serve that sentence, and there are about twelve months still to be served of the sentence of four years' imprisonment.
3. Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, Mr Czerwinski's extradition 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 Mr Czerwinski's extradition to Poland would be incompatible with his rights under the European Convention on Human Rights. The single ground of appeal is that the district judge should have concluded that his extradition would be a disproportionate interference with his rights and those of his family to respect for their private and family life protected by Article 8. However, it is also said that this appeal should be adjourned until after Mr Czerwinski's appointment on 16 March with his consultant about an injury to his arm.
4. The relevant facts are these. Mr Czerwinski is 37 years old. He found it difficult to find work in Poland following his release from prison. He came to this country in November 2006 after spending a few months in Germany. At first, he worked on a construction site, but he had boxed when he was younger and he decided to get fit again. Eventually he became a professional cage fighter. He was successful, and his fights began to be televised. Indeed, an earlier hearing to decide whether he should be extradited was adjourned on 17 May 2012 so that he could fight for the British heavyweight title on 10 June (which he won), and on 19 June the hearing to decide whether he should be extradited was further adjourned so that he could fight for the world title in November. The district judge wanted to give Mr Czerwinski the opportunity to do something to which many people might aspire but only a tiny handful have the chance to achieve.
5. Mr Czerwinski's career as a cage fighter has given him the opportunity for title fights which are not just significant in their own right but could bring him large financial rewards. If he is to be returned to Poland to serve the rest of his sentences, that opportunity would be lost, possibly for ever, since he could lose his fitness and he would be about 40 years old on his release. There is evidence which has been filed since the hearing at the magistrates' court to the effect that he is contracted to fight again on 20 April, 19 May, 5 June and 13 July 2013. It is said that he will be in breach of contract if he does not make himself available for those fights. He will lose sponsorship deals, including the sponsorship of a gym which he wants to open, and his reputation will be tarnished.
6. Mr Czerwinski has a daughter who is now two-and-a-half years old. He does not live with his daughter or his daughter's mother, but the judge found that he sees his daughter most days. She has a condition - which it looks as if she inherited from him - which affects her breathing when she is asleep. Mr Czerwinski claims that he will not be able to see her if he is extradited because her mother will not fly to Poland with her, but the district judge made no finding about that. There is also fresh evidence before the court today to the effect that the girl's mother has had an operation to remove a brain tumour and is unable to drive. The result, it is said, is that Mr Czerwinski is now providing a greater level of care for his daughter than before. However, there is no evidence about when that operation took place, or how long it takes for someone to recover from it, or when she is likely to be able to resume full-time care for her daughter.
7. I turn to Mr Czerwinski's own physical condition. That was not an issue at all in the hearing before the district judge. But in his fresh evidence Mr Czerwinski says that when he lost the world title fight in November he tore a tendon in his left biceps. He underwent surgery for it on 23 December 2012. Although his arm is no longer in a cast, he has been having physiotherapy for it. His recovery, he says, has been quite good so far. He is due to return to hospital on 16 March to be assessed by his consultant to see if further surgery is needed.
8. Mr Czerwinski was the beneficiary of not inconsiderable indulgence by the district judge to enable him to fight for the British and world titles. I do not think that it can seriously be argued that the fact that his extradition could bring to an end his career as an internationally recognised cage fighter, even after everything he has done to turn his life around, would amount to a disproportionate interference with his Article 8 rights. So I turn to the question whether his extradition would amount to a disproportionate interference with his daughter's rights under Article 8 with the additional burden which his absence from their lives would place on her mother.
9. 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. In that balancing exercise, the interests of any children must be a primary consideration and at the forefront of one's mind, though it is important to remember what Lord Judge said at [132]:

"When resistance to extradition is advanced ..... on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."

10. To all 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.
11. The fact is that the offences for which Mr Czerwinski was sentenced to four years' imprisonment were serious. They would undoubtedly have crossed the custody threshold in this country. It is true that he has already served the majority of his sentence and the offences are relatively old. But it has not been suggested that it would be unjust or oppressive to extradite him because of the passage of time, and there is still quite some time for him to serve. I can see how there could be some hardship as a result of Mr Czerwinski no longer being able to contribute financially for his daughter's upkeep, or to help looking after her, but he never has been her primary carer. There is nothing to suggest that her mother will not be able to resume her role as the full-time carer of her daughter in the near future. Nor was there any suggestion that Social Services were involved in her life which might have called into question her mother's ability to provide adequate care for her. Balancing these considerations, I have concluded that Mr Czerwinski's extradition would not be a disproportionate interference with either his or his daughter's family life or that of her mother.
12. In these circumstances, I decline to adjourn the hearing of the appeal until after 16 March when it will be known whether Mr Czerwinski needs surgery. If he does not, no harm will have been done by not adjourning the hearing of the appeal. If he does, there is no reason why such surgery cannot be performed in Poland, there being no evidence that the treatment he could get in Poland is likely to be any the less adequate than the treatment he could get here.
13. For all those reasons, I do not believe that if any of the fresh evidence had been available to the district judge, it would have resulted in him coming to a different conclusion on whether Mr Czerwinski should be extradited. It follows that this appeal must be dismissed.
14. MR WILLIAMS: I ask for the usual order - a detailed assessment of my legally aided costs.
15. MR JUSTICE KEITH: Yes.