QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GRZEGORZ PIOTR ZAPALA
|- and -
|THE CIRCUIT COURT, WARSAW, POLAND
Saoirse Townshend (instructed by Kaim Todner Solicitors Ltd) for the Respondent
Hearing dates: 15 February, 2017
Crown Copyright ©
The Honourable Mr Justice Blake:
i) On his return to Poland from Croatia he was informed that he could not be dealt with for K 124/07 without his consent and that consent was withheld.
ii) In fact, his lack of consent was not conclusive of whether the offence could be dealt with during that period of incarceration. The Polish authorities could have sought the consent of the Croatian authorities pursuant to Article 27(3)(g) and (4) of the Council Framework Agreement (2002/584/JHA). Consent was required to be given if it was an offence itself subject to surrender under the Agreement and a decision from Croatia had to be taken no later than 30 days after receipt of the request.
iii) The fact that the appellant was a serving a sentence until April 2014 gave sufficient opportunity for Poland to make the request and for Croatia to respond to it before he was released. The failure to make a request resulted in culpable delay on the part of the Polish state that means that this stale offence, now 10 years old, was enforced against the appellant in 2016 despite the fact that there was a reasonable opportunity for Poland to have it enforced in 2013.
iv) The extra three years' delay in clearing up enforcement, and the fact that the appellant had already had his family life interfered with for one period of compulsory return to Poland from June 2013 to April 2014 operates more harshly on his family that one stay in prison.
v) Further, as a result of what the appellant was told by the Polish authorities and the operation of Article 27 (2) of the Framework Agreement, contrary to the finding of the DJ below, he was not a fugitive when he returned to his family on release from custody in April 2014.
'1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to carrying out of a custodial sentence or detention with a view to the carrying out of a custodial sentence or detention order for the offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
(a) When the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) The offence is not punishable by a custodial sentence or detention order;
(c) The criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) When the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) When the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) When the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with the State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) Where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.'
"If an accused ..deliberately flees the jurisdiction … it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this may be.. losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation….Only a deliberate decision by the requesting state communicated to the accused not to pursue a case against him' or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of the further delay were not of his own making".
"By letter dated 18.09.2013, Sad Rejonowy District Court.. informed Gregorz Zapala that considering the fact that the European Arrest Warrant was issued in another case, the penalty imposed in the case number K124/07 cannot be executed. Therefore it asked the subject if he agreed to its execution…The subject has not responded to the above letter. In my view of the above, the Court held that the subject does not agree to his surrender and does not waive the principle of speciality".
i) He deliberately left Poland in 2007 without providing an address where he could be communicated with despite knowing there was a prosecution likely to be forthcoming. He was a fugitive who cannot complain of the passage of time taken between 2007 and 2013 to find out where he was.
ii) Although the offence of driving while disqualified is generally in the lower range of criminality, the offence is here aggravated by his previous offending history and it is understandable why the Polish court should seek to punish him for it with a custodial term.
iii) There is an invariable and strong public interest in upholding the principle of return under the mutual arrangements under the Framework Agreement to which member states are party.
i) He seems to have established himself in remunerative employment in the UK, and he has changed his life by not re-offending during his residence of some 9 years here.
ii) He has a new family including a child of tender years for whom he is the sole financial support and towards whom he is a joint carer.
iii) The requested person is entitled to refuse consent to being dealt with on a matter not contained in an EAW and leave the country on completion of the sentence. Article 27 (3) (f) requires the state to explain the consequences of consent and to provide legal advice for that purpose. A purposive reading of the Article suggests that the consequences should be both what happens if consent is given and refused. There is no information that the appellant was informed what would happen in the latter case.
iv) Although he is unable to raise a s.14 delay bar to his return in respect of the period when he was a fugitive from June 2007 to June 2013, I have reached the conclusion that he was no longer a fugitive after he was returned to Poland on the EAW issued to Croatia and it was realised that he had a sentence to serve for the present offences. The Polish authorities could and should have sought the consent of Croatia so he could have been dealt with for all outstanding matters on one occasion. I reject the proposition that there was insufficient time to have made such a request when the court became aware of the existence of the two matters. It is puzzling why the same court dealing with both cases was unaware of the outstanding domestic warrants for the two offences in the first place.
v) The events of 2013 are likely to have left a subjective impression of a false sense of security. The family that had lived together from 2008 until the end of their Croatian holiday. There was then a forcible return to Poland and a period of 10 months detention for the appellant for an offence committed in December 2007. It would be reasonable if they concluded that the appellant's past offending in Poland had now been addressed and they could return to their stable law-abiding life in the UK, with the appellant in employment and as the bread winner.
vi) The period of delay before that expectation was disappointed was not a long one. Ms Townshend asks rhetorically what has changed by reason of the delay from September 2013? In my judgment, the experience in 2013 gave a false sense of security that the troubled history was concluded. It is more disturbing and disruptive for a family to have to endure two periods of the appellant's incarceration in Poland separated by two years residence than a longer single period.
vii) In the case of CO/2139/2016 Glowinski 1 February 2016 (unreported) I considered a relevant factor against return was that the conduct of the Polish authorities in that case had led to two successive applications for an EAW, when administrative efficiency could and should resulted in a single application for two distinct offences. The oppressive nature of a second return weighed in the Article 8 private life balance, even where the claimant was a fugitive and there were no welfare of the child considerations in play. I also concluded that the additional delay caused by the inefficiency in having two successive EAW requests for offences of considerable vintage, need to be added to the total period since the offending in the overall balance where Article 8 issues were raised. Similar considerations apply here in light of the fact that this is a second extradition for an elderly offence.
viii) Although the appellant is not the sole carer for his child, and although his economic responsibility has ensured that family had capital savings to tide them over for a few months in the event of loss of the breadwinner, the family and the child would face undoubted hardship by a second twelve month period of absence. Apart from financial issues, the evidence given to the DJ suggests that the anxiety generated by a second loss of the emotional support of his father already has had some adverse impact on his child. The appellant's earnings also support his ex-wife and children (10 and 20) now all living in Canada others who would also be financially adversely affected by a second period of detention in Poland.
ix) Judges considering these cases generally assess the impact of a return to serve a short sentence abroad where the crimes are not of the gravest kind on the basis that family life in the United Kingdom will only be interrupted for the limited period of service of the sentence. They cannot be expected to second guess what the response of the UK Home Office will be to re-admission or deportation and in any event there is a right of appeal against any exclusion decision based on public policy grounds. However, I recognise that the present time is one of political and legal uncertainty as to what the rights of EU nationals will be in 2018 and what public policy practice there might be applied to those, like the appellant, who have a number of previous convictions for offences committed prior to entry to the UK. This uncertainty as to the future is likely to cause greater anguish to the appellant's partner and child than in the normal case and add to the financial and emotional security that they presently feel.