CO/4187/2014 
Neutral Citation Number: [2014] EWHC 4284 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 17th November 2014
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 
ZIAJA 
Claimant

v 

REGIONAL COUR IN LODZ POLAND 
Defendant 
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Mr Zalenski (instructed by Imran Khan Solicitors) appeared on behalf of the Claimant
Mr B Seifert (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE COLLINS:  This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Zani, on 2nd September 2014 ordering the extradition of the appellant to Poland, to serve the balance of a sentence imposed for offences of supplying drugs.
2.	The offences in question were committed some time ago.  I say "offences".  He was charged with one offence which covered a number of different occasions over a period of time between 2004 and 2005.  In fact, he was arrested it seems in July 2005 and was in custody until March 2007 when he was dealt with and was sentenced to a term of 3 years and 2 months.  He had already served, as I have said, something in the order of 20 months and so the balance left now is 1 year and 7 months or thereabouts ‑ perhaps a little bit longer than that.
3.	It seems that when he was eventually sentenced by the court in March 2007 he applied for a deferral of the date when he was to commence that sentence.  That request was denied in June 2007.  He appealed against that decision but that was refused in January 2008 and he was required to surrender himself to the Polish prison authorities in May 2008.  He had in fact obtained for himself a passport, valid from 26th February 2008 and he decided that he would leave Poland and come to this country.  As the District Judge decided, he having come here on 8th April 2008, he did so as a fugitive from justice.  He has remained in this country openly since.  There is no question but that he has worked here and has behaved himself here and there is no suggestion that he has committed any offences.  He has, and this is the main basis of the defence that he raised before the District Judge, two children, whom he assists to look after.  There are real difficulties because his partner will not have the ability to look after the children properly.  Inevitably, as always the case in these situations, there is hardship to the family.  The District Judge considered with care the question of hardship.  It is to be noted that the offences are old.  On the other hand, it was the appellant's efforts to avoid serving the balance of the sentence that took until middle of 2008 and he left Poland without informing the authorities where he was going.  
4.	It is said on his behalf that if the Home Office had been notified by the Polish authorities at any time after 2008 it would have been easy to have located him in this country.  That no doubt is so.  But there is no evidence that the Polish authorities were aware of the country to which he had gone.  The fact he had obtained a passport that they were aware of might on its face suggest that he was going somewhere other than an EU State because of course a passport is not essential and it a national identity card is all that is needed for travelling within the EU.  However, be that as it may, it is not possible to speculate why the authorities were unaware of his whereabouts.  But in due course they did catch up with him and the EAW was issued.  As I say, delay is a factor that can properly be taken into account.  The District Judge was satisfied that the assistance that was being given by his sister in law would not be maintainable because she had her own commitments.  But the view taken by the District Judge, one on the facts he was entitled to reach, was that there were members of family available and who if the need arose would come forward to assist particularly with child care arrangements and financial help.  I have no direct evidence beyond that which was before the District Judge as to what if any arrangements have been made since the hearing to deal with possible arrangements for the children if the extradition takes place.
5.	There is another factor.  Mr Zalenski has drawn my attention to the decision of Ouseley J in Chmura v District Court Of Lublin Poland CO/11141/2013, in which reference was made to Article 77(1) of the Polish Criminal Code which empowers the court to order only conditional release and, in this case, the submission that could be made to the court would be that because of the time that has elapsed and because of his good behaviour in this country it is appropriate to suspend the balance of the sentence alternatively no doubt to reduce the time which should be served.
6.	Those are matters which can be put to the Polish court.  In the Chmura case the only period left was one of 8 months on which these 4 months had been served and Ouseley J took the view on the facts of that case, and I emphasise "on the facts", it was appropriate to allow the appeal.  Most of these cases do depend upon their own facts and they should not be cited without recognising that that is indeed the situation.
7.	It seems to me in the circumstances that albeit he may succeed in persuading the Polish court that there should be either a reduction or a suspension, that is a matter for the court and I am satisfied that the District Judge's decision based on proportionately under Article 8 was correct.  I should only add this.  It was submitted in the course of the skeleton argument but not pursued orally, that there was an error on the arrest warrant in as much as the offence ticked was "supply of drugs", but that, it is said, needed a cross border element.  That I am afraid is an argument which is utterly hopeless and I am not surprised that it was not pursued orally.  In any event, it is clear that the offences in question were indeed serious ones.  
8.	In the circumstances this appeal must be dismissed.