QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GRZEGORZ PILARCZYK
- and –
|(1) REGIONAL COURT IN POZNAN, POLAND
(2) REGIONAL COURT IN KIELCE, POLAND
Catherine Brown (instructed by CPS Extradition Unit) for the Respondents
Hearing date: 21st November 2019
Crown Copyright ©
THE HONOURABLE MR JUSTICE LEWIS:
Westminster Magistrates' Court
"7. Mr Pilarczyk gave evidence. He told me he has been living in the United Kingdom since 17th July 2007. He has no criminal record in the UK. He says he has been honest, has been working and has tried to do his best for the country. He has had to take only temporary jobs because his identification card has expired. Mr Pilarczyk has worked in warehouses, packing chicken and fruit. Currently he is decorating or renovating some flats. He has a brother who lives in the United Kingdom who he is close to. He also has his sister in law. He is particularly close to his niece who is aged 10 years and who he helps bring up. Mr Pilarczyk feels safe and happy in the UK; he says he cannot expect that in Poland. If he is extradited to Poland he says he will be treated unlawfully. He says he is not guilty of the offences he has been accused of. He does not want to be extradited to Poland he wants the EAW to be discharged."
"23. In this case the Requested person was aware of the proceedings, the timing of his departure is striking and the summons was actually served and signed for using his second name. Although the offences were committed around 13 years ago they are relatively serious, carrying up to 8 years in prison each and a total loss of about £16000 to the victims. In these circumstances I cannot conclude it would be unjust or oppressive to extradite the requested person to Poland to stand trial."
THE RELEVANT LEGAL FRAMEWORK
"14 Passage of time
A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have–
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
"27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;(b) quash the order for his extradition"
"Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."
"…. the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extradite to discharged….. All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case …"
"8. I recognise that there is a difference between the passage of time and culpable delay by a public authority. Culpable delay can only arise when something ought to have been done quicker than it was and there is no good explanation for why it was not. It will not be easy to draw the inference of culpable delay from the mere passage of time for a number of reasons, many of which were identified in Jabcysnki :
i. where the appellant is a fugitive from a requesting state there is no purpose of issuing an EAW in a particular language unless there is some reason to believe that the fugitive is in the relevant country;
ii. there are resource issues for any public authority dealing with a large number of applications and the court will be in no position to know what priority should be given to the particular case;
iii. there is no duty on the requesting state or its agents to spend potentially fruitless time and effort in making inquiries as to the whereabouts of the fugitive if there is no good information available likely to inform. "
"… the test of oppression will not easily be satisfied; hardship, a comparatively commonplace consequence of an order for extradition, is not enough".
THE NEW EVIDENCE
UPON hearing from Ms Danielle Barden, Counsel for the Appellant; and Ms Catherine Brown, Counsel for the Respondent
IT IS ORDERED that:
BY THE COURT