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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Apanowicz v District Court In Zomosc Poland [2014] EWHC 4085 (Admin) (12 November 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4085.html
Cite as: [2014] EWHC 4085 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| APANOWICZ | Appellant | |
| v | ||
| DISTRICT COURT IN ZOMOSC POLAND | Respondent |
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Ms H Hinton (instructed by CPS) appeared on behalf of the Respondent
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- MR JUSTICE OUSELEY: This is an appeal against the decision of District Judge Coleman who ordered the Appellant's extradition to Poland on a conviction European Arrest Warrant (an "EAW") in respect of two offences of commercial burglary committed with some vigour. The offences were committed in 2010, one in December and one in June. In June, goods to the value of about £300 and in December, watches to the value of about £1,300 were stolen.
- The sentence of two years, of which 1 year, 11 months and 28 days remain to be served, was suspended on 12 April 2011 and activated on 27 November 2012. The circumstances of its activation are not clear. Indeed, the Appellant contends that on that date, that was the actual sentencing date for one of the burglary offences.
- In February 2012, the Appellant came to the United Kingdom where he lived in Reading for about two weeks before moving to an address in Leicester where he stayed for a year, which is the address he was at when the suspended sentence was activated.
- The Appellant was faced with an EAW which contained the following. His residence was given as an address in Poland. It was said in box F that the sentence was activated because the Appellant had not fulfilled the duties imposed upon him by the suspended sentence and "since he had evaded the supervision of the probation officer". He was not staying in his place of residence, but he "did not fulfil the duty to inform the authority running the proceedings about his current place of residence". They searched for him unsuccessfully in Poland before it came to their attention that he was in the United Kingdom.
- The Appellant contended before the District Judge that he had, in fact, come to the United Kingdom with the permission of his probation officer. The Appellant did not, at that stage, produce any documents to support that contention.
- The District Judge concluded, having recited the Appellant's evidence, that the EAW was unequivocal. The requirements of the suspended sentence were not complied with. The need to circulate in Poland a search for the Appellant as a wanted person in 2013 suggested that they did not have an address for him. Subsequently, the police had become aware he was in the United Kingdom. The District Judge then found that he had left Poland whilst subject to his suspended sentence and without complying with the requirements.
- Before this court, the Appellant has produced the probation officer's documentation permitting the Appellant to come to the United Kingdom. He had not been able to produce it earlier because he had to raise money to get a Polish lawyer to carry out the searches. I am prepared to admit that evidence. He has produced a further proof of evidence explaining more of the background to it. In the circumstances, I am prepared to admit that evidence because this further material adds support to a point which, it seems to me, the District Judge rejected and, in the light of this, rejected wrongly.
- The position, therefore, is this. The District Judge ought to have found that he had come to the United Kingdom with the permission of the probation officer, who had the authority of the court to enable him to do that. But that only goes so far. I am prepared to accept that the absence of other probation records of contact are, for at least part of the period, due to the fact that they were not asked for. They may exist.
- However, contrary to Mr Payter's submissions, it seems to me that the probation officer's consent to the Appellant coming to the United Kingdom was founded on the statement that the Appellant was "planning to come back to Poland in June 2012", specifically recorded on the declaration. The Appellant declared, "I am planning to go abroad on 18/2/2012 to take up gainful employment". This was to pay the sums due to meet the probation obligations. He used the same language to refer to his return to Poland in June 2012.
- He gave an address in Reading at which he would be living "during my stay abroad". He would be available at a mobile number that was given and at an e-mail address that was given. He undertook to inform a probation officer by telephone or e-mail if he was in the United Kingdom, not later than the 25th day of each month, about his life situation. He agreed to meet his obligations systematically. In bold, "He acknowledged that he had been duly instructed on the consequences of ignoring the above terms." The obvious consequence of ignoring the above terms would be activation of the suspended sentence.
- What happened, taking his proof of evidence, in the United Kingdom was, as I have said, within two weeks he moved from the address he had given. He says, although there is no more than the evidence in his proof, that he told the probation officer of his next address in Leicester.
- The Appellant does not, however, deny -- indeed he is perfectly straightforward about it in his further proof -- that after seven months he remained in the United Kingdom and ceased to have contact with the probation service for a period of three months. He says that there was some e-mail contact in 2012, by which time his probation officer had retired and there had been no interest in contact with him from the other probation staff. This would have been close to the point at which the suspended sentence was activated. On those findings, there clearly were circumstances which are capable of triggering the activation of his suspended sentence.
- Mr Payter has unsuccessfully argued for an adjournment in order that the hearing of 25 November 2014 in Poland, to resolve the issue of application, could be heard, but I have ruled against that, not least because proceeding with this appeal will not mean that he is removed if his application on 25 November is successful.
- Mr Payter prays those circumstances in aid of his argument that extradition would be disproportionate. He points to the following, that the offences are not of the gravest by value or circumstance. The Appellant is in this country with his wife and child, who are in good health. He has had a job so far, as has his wife, where he has worked hard. He spent two months in custody. He has been on a daily reporting condition for three months.
- Were he to be released at the halfway stage in Poland, he would be serving something of the order of ten months only. He is somebody whose offences were not regarded as so serious by the Polish courts that they gave him an immediate prison sentence. He had complied for about ten months in Poland and seven months or so in the United Kingdom with the requirements so far as they are known. It is not known whether a payment of the financial penalty was a requirement and, if so, by what date. He has paid that penalty, although it seems to me it was likely paid after the arrest.
- This case gives rise to the common sort of problem which exists where the Polish courts impose a suspended sentence and where there is a breach, but not in this case of the most serious nature, in view of the fact that he came to the United Kingdom with permission, but nonetheless, sufficient non-compliance to lead to the activation of the sentence.
- The Polish courts activate suspended sentences where there is non-compliance. That is the quid pro quo for the fact that so many offences which might otherwise be dealt with by way of an immediate prison sentence are not. It therefore behoves those who are subject to those suspended sentence requirements to comply meticulously with them.
- The Appellant has demonstrated a higher degree of compliance when he came to the United Kingdom than do many, but circumstances have arisen where the Polish court, on the face of it, is entitled to and has activated that sentence. That decision has to be respected. The period of ten months is not a very long period, but that is an argument that cuts both ways.
- In the end, I have decided that this extradition would not be disproportionate, making the assumption, as I am entitled if not obliged to do, that the sentence was properly activated for non-compliance, even if not of the degree of non-compliance which the District Judge concluded and even if not of the degree of non-compliance which the Polish authority set out in the warrant.
- This, of course, will create hardship for the Appellant and his family, but that is the consequence of non-compliance. I do not consider this extradition would be disproportionate. It would be hard, but nonetheless proportionate.
- MR PAYTER: Thank you, my Lord. I do not think I need to ask for any orders. In case I do, could I ask for the usual order for costs?
- MR JUSTICE OUSELEY: Detailed assessment.
- MR PAYTER: Yes, please.
- MR JUSTICE OUSELEY: I am happy to order that assessment.
- MR PAYTER: Thank you very much.
Thank you, Mr Payter.