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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 >> Sedzikowski v District Court in Torun Poland [2014] EWHC 4465 (Admin) (12 December 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4465.html
Cite as: [2014] EWHC 4465 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
(Sitting as a Judge of the High Court)
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| SEDZIKOWSKI | Appellant | |
| v | ||
| DISTRICT COURT IN TORUN POLAND | Respondent |
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(Official Shorthand Writers to the Court)
Ms L Collins (instructed by the the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
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- SIR STEPHEN SILBER: Yacob Sedzikowski appeals against the decision of District Judge Purdy made at the Westminster Magistrates' Court on 21 October 2014 ordering his extradition to Poland on a conviction European Arrest Warrant issued out of the District Court in Torun, Poland on 12 January 2011. It was certified by the Serious Organised Crime Agency on 7 September 2012.
- The appellant's extradition is sought to serve a sentence of 1 year in respect of one offence of fraud. He has been in custody for over 4 months and it will probably be about 5 months in custody if he is extradited.
- The appellant had previously been made the subject of a suspended sentence for the offence of fraud which was that on 17 July 2000 he concluded a contract for two Polish satellite TV boxes and did not honour his contract to pay for goods, instead "handing the set over to another person". The total value of the set was about £540. The suspended sentence was activated when the appellant committed an offence of criminal damage, and 1 year's imprisonment remains outstanding. he has been in custody in this country since 3 August 2014, which is now 4 and a quarter months.
- The appellant raises one issue, which is whether his extradition would amount a disproportionate interference with his article 8 rights. As is well known, the approach the court should take to extradition cases where article 8 rights are put forward as the basis for resisting an EAW has been considered by the Supreme Court in two recent cases. The first was Norris v Government of the United States of America (No 2) [2010] 2 WLR 572 and the second was HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90. The approach to be adopted is set out clearly in the judgments of Baroness Hale, particularly at paragraph 8 of HH.
- The case for the appellant put forward by Mr Joel Smith is that there are a number of very important factors which show why it would be disproportionate to order the extradition of the appellant. The first point he makes is that the offending took place 14 years ago, when the appellant was 23. He is now 37. Second, he was not convicted until 5 years after the offending took place, and the European Arrest Warrant was not issued until 2011, and only certified in 2012. Third, it is said that the offence concerned was not the most serious, and the original sentence was a suspended sentence. Fourth, Mr Smith contends that the appellant will have served almost 5 months of his sentence by the time of his extradition, if it is ordered today. Fifth It is said that the appellant would be allowed to apply for (but not automatically entitled to) release at halfway stage, as explained in the case of Janaszek v Circuit Court in Plock (Polish Judicial Authority) [2013] EWHC 1880 (Admin) at paragraph 41.
- The appellant is hoping to start his own company. He has no family over here but I am told that his wife and son are due to travel to the United Kingdom to live with him shortly.
- Mr Smith also relies on a similarity between this case and the case of Chmura v District Court of Lublin, Poland [2013] EWHC 3896 (Admin) at which Ouseley J allowed an appeal. Mr Smith realistically accepts that no two cases are the same and that my task is to reach a fact sensitive decision. He does, however, say that this is a very unusual case where there are a number of very substantial similarities.
- First, and now dealing with the case of Chmura, there was a lapse of time of 8 years for which he is to a large extent responsible. Ouseley J made the point that between the ages of 20 and 28 a young man with a wilder side is likely to settle down and become more mature. In this case, the similarity is that 14 years have elapsed since the time when the appellant was 23 years of age. Another point that is made is that in both the case of Chmura and the present case the appellant has worked in this country and it is quite likely that if the appellant was not in custody he would be starting his own business.
- Ouseley J attached great importance to the fact that the appellant in that case would shortly have served the fifth month of his time in custody. That is similar to this case, although in the present case the sentence is somewhat longer, but in both cases they had the provision to which I have referred, by which somebody could apply for release when they have served more than half the term. In neither case have they got any family over here.
- Those similarities are very striking but Miss Collins draws to my attention a number of factors suggesting that the appeal should be dismissed. First, the appellant in the present case had committed further offences which we know, by reason of the fact that his sentence was activated when he had committed the further offence, and that is the reason why there is a custodial sentence. In addition, it is said that in this case the appellant used an alias when he was arrested, and there is a difference in the sentences.
- But I think at the end of the day I really have to stand back and see if it would be disproportionate in all the circumstances, and take into account the relevant factors to which I have referred. I have come to the conclusion that even if there was no release, the effect of the impact of extradition on the appellant's life after such a long time to serve what is a short part of sentence which might well be commuted would be disproportionate. As is notorious fact, extradition brings about a significant disruption to life, employment and so on, going far beyond what would normally happen with a short term of imprisonment.
- Indeed, it seems to me for him to go to Poland to be released in a matter of a very few weeks would be wholly disproportionate, bearing in mind the time that has elapsed since the offence, and more particularly that he has not gone without punishment because he has served a substantial term of imprisonment in this country. I do stress that this is a fact-sensitive decision and, notwithstanding the very able submissions of Miss Collins for which I am grateful, this appeal has to be allowed.
- MR SMITH: My Lord, I do not know whether it is necessary to apply for legal aid assessment or assessment of legal aid costs. Some people take the view --
- SIR STEPHEN SILBER: Nobody has ever asked me for that before in an extradition case. You and Miss Collins have great experience of this. Do you know what the answer is to this?
- MR SMITH: Some people take the view that it is necessary, and some people take the view that it is not, so I was applying out of a belt and braces approach.
- SIR STEPHEN SILBER: I can't see any harm in doing it.
- MISS COLLINS: I don't think there is any harm in doing it. I don't think it is necessary.
- SIR STEPHEN SILBER: Judging by the people who have appeared in front of me and haven't asked for it, I suspect they would have come back with and told me. But I will make that order. Could you just draft the order before you leave.
- MR SMITH: Yes, of course.
- SIR STEPHEN SILBER: Thank you both for your help.