QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| KRZYSZTOF HORCHEL
|- and -
|POLISH JUDICIAL AUTHORITY
The respondent did not appear and was not represented
Hearing date: 18 August 2020
Judgment as delivered in open court at the hearing
Crown Copyright ©
MR JUSTICE FORDHAM :
The Wozniak point
The Article 8 point
"The appellant's extradition is sought for a single minor fraud against a bank using a forged employment certificate to the value of £1,460.… The appellant has [as at 15 July 2020] served over 9 months in custody on remand in respect of these extradition proceedings (less 6 weeks served for domestic matters) … The appellant has already served the equivalent of more than a 16 month sentence for this single, low value, fraud for which he would have received a maximum six-month sentence… if committed here… The offence is over 13 years old; it is ancient… Prior to his remand in custody, the appellant was in employment and supporting his partner in providing her with very important care. His partner will, through no fault of hers, be left entirely without this vital care if he is extradited. She is in poor health and 'struggling' to look after herself without the appellant's support…
Whether or not a requested person is a fugitive a long and culpable delay on the part of the authorities can provide a potent factor against extradition. It can be a determinative factor.
… The court is entitled to stand back and say that the article 8 question ought to have been decided differently because the overall evaluation was wrong: crucial factors were not given enough weight (either individually or collectively) such as: (a) the delay of over 13 years since the offence; (b) the relatively minor nature of the offence; (c) the time the appellant spent on remand for this ancient, stale, low value single fraud; (d) the support that the appellant was providing for his partner …. very sadly … seriously injured in a car accident on Christmas Eve 2014 as a result of which she was no longer able to work … Prior to his [remand] in custody, the appellant helped [his partner] with washing, cleaning, dressing and eating. If he were extradited [she] would not receive this help from him.
It is submitted that these matters should collectively have been weighed significantly differently as against the single, old, minor offence, so as to conclude the impact would be so severe as to make extradition disproportionate. Notwithstanding the appellant's criminal record, the matters militating against extradition in this case, in particular the appellant's partner's condition, arguably constitute precisely the type of 'strong counterbalancing' factors considered as required… in fugitive cases such as this."
In his oral submissions, Mr Hepburne Scott relied on these and his other written submissions. He helpfully drew my attention to the salient features.
(1) Permission to appeal is refused, on the ground on which it was advanced in the Perfected Grounds of Appeal dated 22 April 2020, namely Article 8 (section 21).
(2) The Appellant has permission to amend his grounds of appeal, with an extension of time, to rely on the s.2 (judicial authority) point in Wozniak (CO/2499/2019), namely the Polish courts have ceased to be judicial authorities for the purposes of section 2 of the Extradition Act 2003 (see Wozniak  EWHC 1459 (Admin) at §§4, 6, 9-11, 14-15). The need for any further or amended Respondent's Notice is dispensed with.
(3) The Appellant's application for permission to appeal on the ground referred to at paragraph (2) above shall be stayed pending the judgment of the Divisional Court in the appeals of Wozniak (CO/2499/2019) and Chlabicz (CO/4976/2019). The Appellant shall, within 14 days following the date on which the judgment of the Divisional Court in those cases is handed down, (a) inform the Court and the Respondent whether he intends to pursue an application for permission to appeal on the ground referred to at paragraph 2 above; and (b) if such an application for permission to appeal is to be pursued, file and serve written submissions in support of that application. The Respondent shall within 14 days of those written submissions file and serve any written submissions in response. The question of permission to appeal to be considered thereafter by a judge on the papers.
(4) Pending consideration of the application for permission to appeal on the ground referred to at paragraph (2) above, which application is stayed pursuant to and in accordance with paragraph (3) above, the Appellant shall not be extradited pursuant to the order made at Westminster Magistrates' Court (in this case, on 6 April 2020).
(5) The Respondent shall have liberty to apply, in writing and on notice, to vary or discharge paragraphs (2), (3) and/or (4) of this Order, such application to be considered in the first instance on the papers.
(6) No order as to costs, save for detailed assessment of the Appellant's publicly funded costs.
18 August 2020