CO/4380/2014 
Neutral Citation Number: [2014] EWHC 4278 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Friday, 14 November 2014
 
B e f o r e: 

MR JUSTICE OUSELEY
- - - - - - - - - - - - - - - - - -

Between: 
ZAWISLAK 
Appellant

v 

REGIONAL COURT IN RZESZOW POLAND 
Respondent 
- - - - - - - - - - - - - - - - - -

Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
165 Fleet Street  London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - -

Mr B Casella (instructed by Kaim Todner Solicitors) appeared on behalf of the Appellant
Miss C Brown (instructed by the CPS Extradition Unit) appeared on behalf of the Respondent
- - - - - - - - - - - - - - - - - -

J U D G M E N T
1.	MR JUSTICE OUSELEY:  This is an appeal against the decision of District Judge Blake on 17 September 2014 ordering the appellant's extradition to Poland pursuant to a conviction European Arrest Warrant (EAW).  The conviction relates to two offences which relate to the same set of circumstances.
2.	In September 2011 the appellant attempted to burgle a rectory and make off with items belonging to the Roman Catholic church.  At the same time, he used a disabling pepper spray on someone who intervened to prevent him so doing.  The sentence of 2 years and 6 months reflected the fact that this offence was committed within 5 years of a previous burglary offence.  The appellant spent some time in prison in relation to this offence because the period remaining to be served is 2 years 1 months 19 days of that sentence.  The sentence became final on 29 December 2011 after conviction, which appears to have been the same date as the conviction for the offence committed in September 2011.
3.	The appellant was released from custody in Poland, as not uncommonly happens, because the Polish prisons are overcrowded.  His evidence was that he knew on his release that he would have to serve the balance of his sentence but he was not told on release when he would have to return to prison.  For present purposes, I am prepared to accept what appears to be the general position, although this is not a ruling that it is so, that the Polish authorities do not, as a general rule, tell the individual at the point of release either when he will have to serve his sentence, or within what specific period he will be notified that he will have to serve his sentence.  
4.	In this case the appellant came to the United Kingdom in February 2012.  The district judge found, the finding is not contested, that he came as a fugitive knowing that he had to serve his sentence in Poland and that part of his obligation the while was to abide at an address and to comply with certain other requirements.  The purpose of an address is so that notification can be sent that the prison sentence must commence.
5.	The appellant in this case cannot say when that notice was given because he came to the United Kingdom.  The EAW does not say when that notice was given. But, at all events, it must have been given some time before 31 August 2012 because that is when the EAW was issued.  It is reasonable to infer that the issuing of the EAW would have been after some attempts to find the appellant in Poland had been undertaken and had failed.  
6.	The argument which Mr Casella, on behalf of the appellant, seeks to raise is that this procedure breaches article 5 and, in this particular case, which is what matters, breaches it in a flagrant manner.  I cannot accept that submission.  What Mr Casella submits is that assuming that the detention is lawful under domestic law in a Poland, which it plainly is, it was arbitrary because its commencement date was unknown and the period of time within which the commencement date would be known was, in turn, unknown.  Therefore, an individual subject to such a process is in a position in which he is, to put in simple language, unable to get on with his life.  He does not know whether he is to prepare for prison or has a period in which he can seek employment and enjoy his family life.
7.	It is not necessary for the purposes of this appeal for me to decide whether there are circumstances in which such a procedure gives rise to unlawfulness through arbitrariness.  My judgment is that it would require a very high level of uncertainty before any such contention could be made.  In this case, the period of delay is unknown but cannot exceed something of the order of 6 months.  I cannot regard such a period as being one which involves a flagrant breach of article 5, even if, in principle, an indefinite period of a much longer nature could.  
8.	More importantly here, there clearly was notice given.  The appellant was simply not in a position to receive it.  He cannot contend that the period of time between his release and his departure from Poland to the United Kingdom, which appears to have been no more than a month, was in response to a high degree of frustration associated with the conditions in which he found himself.  He did not make any efforts to find out when that letter of notification might come.  More importantly, no attempt has been made by the appellant, upon whom the onus lies, to establish when the notice came.  I say the burden is on him because, under section 21, the burden lies upon the appellant.  The burden might be discharged by a request being made and information provided or adverse inferences being drawn from the want of an answer.  But no request was made apart from the point being raised in a skeleton argument of 24 October 2014.  That is not, with respect to Mr Casella, the right way in which information required to make a point in which the burden of proof lies on him should be pursued.  The request should be direct.  Skeleton arguments are not to serve that purpose.  They put a party on notice of an argument but they do not do more than that.  Accordingly, I am satisfied that in this case the appellant has not shown that there was a breach, let alone a flagrant breach, of article 5.  Indeed, the maximum period involved does not, to my mind, show that there was a breach at all.  That point is therefore dismissed.
9.	Mr Casella leaves the article 8 argument to the position that it is in his skeleton argument.  The appellant has adult children by his wife, but he is now in a new relationship, and that is the focus of the article 8 point.  The appellant has formed a relationship with a Polish lady living in England who has three children.  He is in a close relationship with the 10‑year‑old son and also with the youngest child, who is 3.  I have no doubt that they benefit from such stability as the appellant affords, together with the financial support.  The new partner has experienced significant depression in the past.  She fears that she will not be able to cope, but it is my judgment that those circumstances do not show the extradition to be disproportionate, giving to the children the weight of their interest being a primary consideration.  The importance of the extradition treaty, the significance of the offence, which appears to be a domestic burglary with violence, merit extradition to serve this sentence.
10.	Accordingly, the appeal is dismissed.