Adam Wawrzyczek (Appellant/Requested Person) v District Court in Bielsko-Biala, Poland (Respondent/Requesting JA)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 09 October 2015 |
| Neutral Citation | [2015] EWHC 2854 (Admin) |
| Date | 09 October 2015 |
| Docket Number | Case No: CO/2573/2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 2854 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal under s.26 of the Extradition Act 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/2573/2015
Graeme Hall (instructed by Lansbury Worthington) for the Appellant
Hannah Hinton (instructed by Extradition Unit CPS) for the Respondent
Hearing dates: 10–11 September 2015
The Appellant appeals against the decision ("the Decision") of District Judge Ikram ("the DJ") at the Westminster Magistrates' Court of 29 May 2015 ordering his extradition to Poland pursuant to a conviction European Arrest Warrant ("EAW") issued on 9 July 2013 and certified on 15 December 2014 in relation to three offences of fraud committed between 2002 and 2005. The total amount, in today's money, is approximately £12,600. There remains a total of 2 years and 6 months' imprisonment to serve.
Before the DJ the Appellant argued that he should not be extradited by reason of section 2 (in relation to offences 1 and 3), sections 10 and 65 (dual criminality), section 20 (not entitled to re-trial), section 14 (passage of time) and section 21 (Article 8) of the Extradition Act 2003 (" EA"). The DJ rejected all grounds of challenge.
Cranston J granted permission to appeal on three grounds: dual criminality ( section 10 EA); retrial rights ( section 20 EA); and passage of time ( section 14 EA). Permission was refused in relation to section 2 EA.
On this appeal Mr Hall, for the appellant, has pursued the three grounds in relation to which permission was granted and he has renewed the application for permission to appeal in relation to section 2 EA. In addition he has applied to rely on a further ground, namely that the Appellant's extradition would be disproportionate interference with his rights to a private and family life under Article 8 ECHR, and therefore barred by section 21 EA.
For reasons that will become clear I shall consider the appeal under section 20 EA first.
Section 20 EA , so far as material, provides:
"(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in sub-section (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in sub-section (3) in the affirmative he must proceed under section 21."
In the recent decision of Podlas v Koszalin District Court, Poland [2015] EWHC 908 (Admin) Aikens LJ, considering the proper interpretation of section 20(3) EA stated at para 23:
"… Thirdly, … we accept that, upon its correct construction section 20(3) can only become relevant when, in accordance with the procedures of the relevant requesting state, a 'trial process' has been initiated against the requested person. Whether this 'trial process' has been initiated will be a question of fact in each case. Fourthly, given the terms of section 206 of the EA it must be for the JA to prove to the criminal standard, that the requested person has absented himself from this 'trial process' and that he has done so deliberately. How the requested person knows of the process is irrelevant; it is the fact of his knowledge of the process that counts. Fifthly, whether a requested person has absented himself from the trial process 'deliberately' calls for a consideration of what is in the mind of that person: see Atkinson and Binnington at [40] per Maurice Kay LJ. A requested person cannot have 'deliberately' absented himself from a 'trial process' if he did not know that that process is taking place or is about to be started. Sixthly, we agree with Mitting J that proof of the fact that the requested person had taken steps which made it difficult or impossible for the prosecuting authorities of the requesting state to serve the requested person with documents which would have notified him of the fact, date and place of the trial or, we would add, the start of the 'trial process', is not of itself proof that the requested person has 'deliberately absented himself from his trial' for the purposes of section 20(3)."
In relation to the service of a summons, the EAW states on page 2:
"This person was summoned in person on 29.09.2005 (in case VI K 898/05) and on 09.11.2006 (in case II K 584/06) and thus, was informed about the fixed dates and place of the hearings which resulted in issuing the decision in case VI K 898/05 and in case II K 584/06, and was informed that the decisions could be issued if he did not appear at the hearing."
Case VI K 898/05 relates to the first offence, and case II K 584/06 relates to the second and third offences.
At the full hearing on 1 May 2015 before the DJ the JA stated for the first time that the term " summoned in person" meant that the summons had been served on the Appellant personally. Prior to then it had been the Appellant's understanding of those words in the warrant that the summonses had been sent to him (see Mr Hall's skeleton argument dated 10 March 2015 at para 31(a)). In his proof of evidence dated 6 March 2015 the Appellant stated that he had never received any summons (para 25).
The Appellant moved to the UK in January 2006 and he only went back to Poland once in 2007. At the hearing he provided evidence of his move to the UK including P60's and registration documents.
Following the hearing Mr Hall advised the Appellant to obtain his wage slips for the month of November 2006 (it being the JA's case that he was served with a second summons personally on 9 November 2006), which he did. On 19 May 2015 at 18:21 Mr Hall wrote to the DJ attaching...
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Adam Wawrzyczek v The District Court in Bielsko-Biala, Poland
...(as he then was) on 29 May 2015. On 9 October 2015 the Appellant was discharged following a successful appeal to the High Court: [2015] EWHC 2854 (Admin). 5 The Appellant was arrested on EAW2 on 13 January 2019 and brought before Westminster Magistrates' Court on the following day. He is c......