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 December 2014

SIR STEPHEN SILBER:

Introduction

1. Krzysztof Szkwarkowski (" the appellant") appeals against the decision of District Judge Coleman, made on 25 July 2014 at Westminster Magistrates' Court, by which the appellant's extradition to Poland was ordered in respect of a European Arrest Warrant issued out of the Regional Court in Gdansk on 7 April 2009. It was certified by the National Crime Agency in this country on 28 October 2013. The appellant's extradition is sought to serve a sentence of imprisonment of 10 months in respect of one offence of causing grievous bodily harm committed on 14 August 2005.
2. The district judge, according to the appellant, erred in ordering the appellant's extradition, as the sole ground that is being relied on is that the appellant has served his sentence, or almost served his sentence, taking into account the time spent on electronically-monitored curfew and deducting that from the appellant's outstanding prison sentence.
3. When this case first came in front of me together with the accompanying case of Michalik CO/3744/2014, I was concerned as to how the Polish authorities would regard the time spent in this country on curfew, and in particular whether there would be any deduction forth appellant's sentence on account of the time spent on curfew.
4. The appellant had been subject to a curfew for 7 hours a day, and I was uncertain as to how that would be regarded by the Polish authorities. Obviously, if there would be a deduction of one day for each period of 7 hours spent on curfew, that would have a dramatic effect on the issue of whether the appellant had served his sentence.
5. There was a great shortage of information, and in this case, as in the case of Michalik, I posed various questions which were to be answered by the judicial authorities. They were whether credit will be given against sentences imposed in Poland to those awaiting extradition and who have been the subject intros country of an electronically-monitored curfew of (a) 6 hours per day, (b) 7 hours per day, (c) 8 hours per day, (d) 9 hours per day,and (e) 10 hours per day, and, if so, how much deduction is given in each case.
6. The response was asked to set out the applicable law and practice, not only as regards the appellants but also in Polish extradition cases generally. In consequence, in both these cases, the different Judicial Authorities have submitted responses.
7. It is common ground that in England the period for which you have to be under curfew to be entitled to half a day's credit is 9 hours.The response in this case does not really take the matter very much further. In the case of Michalik, the response was that a qualifying curfew had to last for at least 12 hours. There is no reason to believe that that this response does not also apply in the case of Mr Szkwarkowski.
8. It has also been contended by Mr Hawkes in his submissions that a much shorter period might well justify reducing a sentence. He relies on a passage in the judgment of Nicol J in Marzurkiewicz v District Court In Rzeszow Poland [2013] EWHC 1332 (Admin), in which he explained that the district judge had said in her judgment in that case:

i. "2 ...

ii. 'One matter that may be relevant is that the defendant has been on an electronic tag since 20 March 2012 and [here I interpolate as a matter of Polish law] every day of this curfew will count as a day of his sentence.'

iii. 3. The District Judge's decision was given on 26 July 2012. As of that date, therefore, the appellant had served approximately 4 months of his 12-month sentence.

iv. 4. The appeal comes before me, today, 30 April 2013. The appellant has been on electronic curfew throughout the time that he has been waiting for this appeal to be heard. The consequence is that more than a year has passed that the appellant has been on electronic curfew. Accordingly, as a matter of Polish law, the appellant has completed his sentence."

9. The difficulty that I have with this passage is how long the appellant in that case was on a curfew for, and second whether the issue about whether or not credit should be given for each day was a matter of agreement. For those reasons, I cannot get any assistance from that case..
10. The next point that is made by Mr Hawkes is that if I am not satisfied with the answer from the Polish authorities, I should adjourn it and ask for further information. I decline to do so. We have seen from the other case (and no reason has been given as to why I cannot attach any importance to that) that 12 hours is required to get credit, and nothing has been suggested that the period of 7 hours spent in this case would be sufficient. Therefore, I come to the conclusion that there is nothing to suggest that this appellant has served or almost served his sentence at all, and would not be regarded as having done so in Poland.
11. Another point that was made is that on 5 November the appellant very belatedly made a petition requesting "issuance of the permit for his serving the custody sentence in the electronic surveillance system. The petition has not yet been considered".
12. Mr Hawkes frankly could not tell me when it would be considered. There does not seem to be any reason to think that it would be dealt with speedily or that there is any reason to think that the appellant will be successful. In any event, he could deal with this matter when he is in Poland.
13. For all those reasons, I have come to the conclusion that the appellant left Poland knowing full well that he ought not to have done so, and that any interference with his Article 8 rights for himself and his family is not so severe that his extradition could be regard as a disproportionate interference. I will not repeat the other points made by the district judge, which seem sensible to me.
14. For all those reasons, I have come to the conclusion there is no bar to his extradition, no human rights issues, and I therefore dismiss the appeal.