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Cite as: [2014] EWHC 4149 (Admin)

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		Neutral Citation Number: [2014] EWHC 4149 (Admin)
		CO/3446/2014

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

Royal Courts of Justice
Strand
London WC2A 2LL

6 October 2014

B e f o r e :

MR JUSTICE BLAKE
____________________

Between:

	LUKASZ KORZONEK	Appellant
	v
	DISTRICT COURT IN PRAGA WARSAW POLAND	Respondent

____________________

Computer-Aided Transcript of the Stenograph Notes of
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____________________

Ms A Nice (instructed by Lawrence & Co) appeared on behalf of the Appellant
Ms K Howarth (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

MR JUSTICE BLAKE: This is an appeal from the decision of District Judge Bayne given in the Westminster Magistrates' Court on 21 July 2014, whereby extradition of this appellant to Poland was ordered on three separate European Arrest Warrants encompassing a number of offences.

The first European Arrest Warrant concerns two counts of theft from shop premises in December 2005 on one occasion and an unknown date in 2005 on another. On the first occasion a number of packets of chewing gum and a pair of trousers were stolen, together said to be worth £145 sterling. On the second occasion packets of chewing gum were stolen worth £175, which would suggest that that was cartons of chewing gum from something akin to a wholesale warehouse. He was convicted of these offences when he was present at the trial and sentenced to 2 years' imprisonment in March 2007. The whole sentence was ordered to be served in 2009 and nearly the whole sentence remains outstanding, just a few days have been served. He failed to attend the prison when required to do so and both domestic warrants and then a European Arrest Warrant were issued. The Polish authorities say that he failed to keep in sufficient contact with his supervising probation officer. There is a dispute about that. The District Judge who heard the evidence was satisfied that the Polish case was accurate.

He was arrested on this European Arrest Warrant in June 2013 but the hearing of his challenge to return on that warrant was adjourned through to July 2014 for a number of reasons. First because of lack of court time on some occasions and subsequently because further European Arrest Warrants were issued. Those are EAWs 2 and 3.

The second European Arrest Warrant is another conviction warrant, sharing that characteristic in common with EAW 1, for an offence of supply of a small quantity of heroin in August 2002. This arrest warrant also originally contained an offence of handling. He was sentenced for both offences to an overall term of 16 months' imprisonment of which he has some nine and a half months yet to serve. The original sentence of 16 months imprisonment was suspended in March 2003 for a period of 5 years. During this time he committed further offences, notably of course the offences contained in European Arrest Warrant 1, and an additional decision was made to implement the sentence. The appellant was informed of this in September 2007 but in breach of his obligations to attend to serve the sentence he came to the United Kingdom shortly thereafter in October 2007.

In respect of this European Arrest Warrant the District Judge discharged the offence of handling on the basis of insufficient particulars to comply with the requirements of the Framework Decision and the learning on European Arrest Warrants and there is no cross appeal from that decision. That has given rise to a particular problem to which reference has been made by Ms Nice in advancing the appeal on his behalf, namely it is not presently known whether the nine and a half month sentence for those two combined offences will be reduced by reason of the fact that the more serious charge, it seems from the terms of the arrest warrant itself, has resulted in a discharge.

Reference is made to the decision of Ouseley J in the case of Sobieraj v District Court in Wroclaw Poland [2013] EWHC 2450 (Admin) where there was a similar problem in a single European Arrest Warrant and at paragraph 18 Ouseley J concluded in the state of the information either there would be no reduction in the sentence for the outstanding charge and that would be unfair; or, secondly, there would be a fairly substantial reduction which would reduce the seriousness of the offence and the justification for return, and in that particular case he concluded that return was disproportionate.

Although there has been communications between the CPS and the requesting State since the institution of these proceedings, it seems that no direct questions were posed on the question of reduction of the sentence on the second European Arrest Warrant.

Moving on, the third European Arrest Warrant is an accusation warrant alleging theft and assault in December 2014 when a mobile phone was taken from the victim of the assault in which the appellant is said to have taken part. Again he fled the proceedings which were underway for those offences and when they were due to be heard in November 2007 he had left the jurisdiction in the previous month. Although he challenged his return on that offence, he no longer disputes his return on the third European Arrest Warrant and so in this case he will be returned on that warrant in due course when his appeal from that European Arrest Warrant is dismissed, as it will be. But he contends that it would be disproportionate to extradite him on warrants 1 and 2: one, because he has now established a family life in the UK; that includes a partner from Poland who came over from Poland after he arrived here and they have a 2-year-old child here. Two, the offences extend back 9 and 10 years respectively and some reliance is placed upon the passage of time in the context of Article 8, it being accepted he is a fugitive from justice, it is said he cannot therefore rely on delay under section 14 of the Extradition Act 2003. Thirdly, the point is made that he has changed his life, he had personal difficulties including drug addiction at the time of these offences, he had been working to maintain his family and been a law abiding since he came to the UK; he has also been on a bail curfew throughout the duration of the proceedings, which is now some 16 months, which is a factor which needs to be taken into account in adjusting the sentence and although there will be some interference with his family life by reason of his return on EAW 3, that separation should be for the shortest possible period and for a defined period so the family can make some arrangements as to how they will survive without him.

Developing that submission, the appellant contends that the assessment of proportionality is individual to each European Arrest Warrant and indeed to perhaps each offence cited therein. Two authorities are relied upon. The first is a decision of Parker J in the case of Przybysz v Regional Court in Szczecin Poland [2014] EWHC 1240 (Admin). I recognise that oppression by reason of delay under section 14, as well as statutory proportionality together arise under section 21A, would require individual assessment of each offence. The position is perhaps a little more complicated in the case of Article 8 where the overall question is whether the term is a disproportionate interference with the family life be taken as a whole, and it is common ground by reason of the concession as to European Arrest Warrant 3 that the family life will be interfered with and the essential question is the duration of that interference.

A decision of Silber J dating from September 2014 in the case of Nowak has been relied upon by Ms Nice. There is no transcript of that decision since it was only a judgment given on 9 September 2014 where he distinguished between two offences under one warrant and even though there was a return he concluded that it would be disproportionate interference with Article 8 for a lesser and minor offence to be added to the sentence in the equation.

In response to the submissions both orally and set out in the skeleton argument, Miss Howarth for the requesting state submits that although on the second European Arrest Warrant there may be an issue as to how much, if anything, remains to be served, that should be left to the Polish authorities to sort out given that there will be a trial on EAW 3 and if I were to dismiss the appeal in respect of EAW 1 there would be a substantial sentence prima facie to serve on that arrest warrant.

It is accepted that there is no information because no questions were asked about it as to whether a reduction of the nine and a half months will be made and in which case to what extent. I should add that part of the appellant's submissions on the second European Arrest Warrant are that the period of suspension was a lengthy one and it was only at the end of that suspension period that it was decided to reimpose the original sentence by reason of a breach and it is unclear whether any discount was made for the time served before the breach was effected.

With those submissions, I reach the following conclusion. In my judgment, there is an insufficient case to suggest that the appellant's return on the first European Arrest Warrant would be disproportionate. He committed the offence in the latter part of 2005, admittedly after a troubled youth in Poland but that is not of such antiquity or marginal nature of criminality as to render it a trivial matter. Moreover, he committed that offence when in breach of the suspended sentence for the offences imposed in August 2002 and whilst under investigation with a view to prosecution for the offence in European Arrest Warrant 3. In those circumstances, comparatively little weight will be given to his family life established in this country when he was a fugitive and he knew that he had a sentence to serve in Poland. So I dismiss his appeal for those reasons, summarily expressed, on the first European Arrest Warrant.

However, I have been persuaded that return for the remaining offence under the second European Arrest Warrant would now amount to a disproportionate interference with his private and family life. My reason for so concluding can be briefly expressed. One, this is now a very old offence, some 12 years plus of vintage. Two, he has served some six and a half months of that offence in Poland. Three, the arrest warrant is for a combination of offences, for one of which he will not now be returned, the handling, and the question of how much he has to serve, if anything, is unclear on the European Arrest Warrant. Four, unlike the first European Arrest Warrant, he had not committed the offence in breach of a suspended sentence and it is likely, as indeed the attitude of the authorities at the time was, that it did not of itself deserve an immediate custodial sentence. Fifth, there is the fact that he has now spent some considerable time on tagged curfew in the UK through no fault of his own as the appeal in respect of all three arrest warrants proceeded.

Putting those matters in the balance together with the family life, which for reasons I have already explained would not of itself have tipped the balance in his favour, I conclude that now to return him for that warrant would be disproportionate. In the conclusion, therefore, I dismiss his appeal on the grounds of Article 8 in respect of European Arrest Warrant 1, he does not maintain any submissions in respect of European Arrest Warrant number 3, so that appeal is also dismissed but I allow his appeal in respect of European Arrest Warrant number 2 and to that extent this appeal is in part allowed.

MS NICE: My Lord, the appellant is legally aided. May I have a legal aid assessment?

MR JUSTICE BLAKE: Yes.

MS NICE: I am grateful, thank you.