Andrzej Magiera v District Court of Krakow, Poland

JurisdictionEngland & Wales
JudgeMr Justice Julian Knowles
Judgment Date03 November 2017
Neutral Citation[2017] EWHC 2757 (Admin)
Docket NumberCase No: CO/5751/2016
CourtQueen's Bench Division (Administrative Court)
Date03 November 2017

[2017] EWHC 2757 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Julian Knowles

Case No: CO/5751/2016

Between:
Andrzej Magiera
Appellant
and
District Court of Krakow, Poland
Respondent

Robert Katz (instructed by BSB Solicitors) for the Appellant

Jonathan Swain (instructed by the Crown Prosecution Service) for the Respondent

Hearing dates: 18 th October 2017

Mr Justice Julian Knowles

Introduction

1

This is an appeal by the Appellant, Andrzej Magiera, against the decision of District Judge Baraitser at Westminster Magistrates' Court on 8 November 2016 to order his extradition to Poland pursuant to a European arrest warrant ('EAW') issued by the Judicial Authority on 29 August 2014. The Appellant is represented by Mr Katz and the Respondent by Mr Swain.

The EAW

2

The EAW is a conviction warrant relating to three offences. The offences are referred to in two judgments. The first judgment is dated 22 November 2006 and became enforceable on 30 November 2006. It relates to one offence described in Box E of the EAW. The Appellant is described as having, on 30 August 2005, together with others, submitted a false certificate of employment to obtain a loan to purchase a fridge and cooker, and that in doing so he caused a loss to the victim bank of PLN 3569.07. He received a prison sentence of 10 months, all of which remains to be served.

3

The second judgment is dated 17 December 2009 and became enforceable on 25 December 2009. It relates to two identical offences each described in Box E. It is said that on 4 December 2007 the Appellant again submitted false documents to obtain a loan. The amount of the loan he sought was PLN 3150. On 18 March 2008 the Appellant did the same, except this time the amount of the loan was PL1800. For these offences he was given a sentence of one year and six months imprisonment, all of which remains to be served.

4

Box D states that the Appellant was present at each of his trials resulting in the decisions to sentence him to terms of imprisonment. Mr Swain on behalf of the Respondent was not able to confirm how long the Appellant will spend in prison if he is extradited and so, in fairness to the Appellant, I will assume that he will serve both sentences in full and therefore that he may spend more than two years in prison in Poland if he is returned there, although I am aware that in Poland multiple sentences are often combined and replaced by a single reduced term.

Proceeding before the district judge

5

Before the district judge the Appellant relied on two bars to extradition: (a) that extradition would be a disproportionate interference with his right to private and family life and would therefore be a breach of Article 8 of the European Convention on Human Rights ("the ECHR"); (b) that to extradite the Appellant would be oppressive by reason of his ill-health, and thus extradition is barred by s 25 of the Extradition Act 2003 ("the EA 2003").

6

The basis for these submissions is the Appellant's poor state of health. He is currently 53 years old. In early December 2015 he was diagnosed with colorectal carcinoma. Later that month he had two operations, the first to remove the cancer and the second shortly afterwards when he developed post-operative complications arising from a leak of his bowel. This necessitated the creation of a stoma. A stoma is an opening in the abdomen from which a portion of the patient's intestine protrudes allowing for a bag to be attached for the collection of faeces. It is a procedure which is often carried out on those who have undergone surgery for colorectal cancer. The Appellant was in hospital for a month, during which he suffered a number of complications. Following his discharge, he has had numerous follow-up and outpatient appointments.

7

He gave evidence before the district judge about the personal care that is necessary because of the stoma. He explained that twice a month he is sent stoma bags, disinfectant and dry wipes. He has to use scissors in order to cut the bags to size. He has to keep the stoma and the bags dry, and so when he takes a shower he has to wrap himself in cling film. He explained that on average he uses five to seven bags a day but can sometimes use up 13 depending on how active his gut is. He told the judge "sometimes I don't manage to change the bag in time and it expels which is very messy". He also told her, "everything has to be sterile, I have to have everything ready, I have to quickly put a new bag on. I have a special shelf where I have everything — the shelf is washed every day." In addition, he told the judge that he has to eat particular foods and avoid "liquidy stuff" although he can eat meat, fish, potatoes and other vegetables.

8

The district judge had before her a quantity of medical evidence. The first is a letter dated 14 June 2016 from Mr Budhoo, a consultant colorectal and general surgeon. He confirmed that the Appellant had surgery in December 2015 for a cancerous growth in his bowel. Using Dukes' Staging System, the cancer was at Stage B, meaning that the cancer had grown through the muscle layer of the bowel but happily had not yet spread to any lymph nodes. He said that no further treatment was required for the cancer. However, he went on to explain that the Appellant had had complications from the surgery, namely a leak from where the bowel had been reattached, which required to be taken down and a stoma fashioned. The Appellant subsequently developed a hernia. The surgeon said that the repair to the bowel and the hernia would be a very complicated operation, although it was possible to undertake it. The judge also had a letter from Mr Budhoo dated 24 June 2016 which requested that the Appellant have access to toilet facilities on a 24-hour basis. There was other evidence which I need not set out concerning follow-up appointments and colonoscopies which the Appellant has had since the time of his operation. (I should also note that as well as bowel cancer, the Appellant also has severe varicose veins, arthritis and a smoking — induced lung disease).

9

The district judge dealt carefully with the submissions under Article 8 at para 37 et seq of her judgment. She cited the relevant case law (namely, Norris v. Government of the United States of America [2010] 2 AC 487, HH v. Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338 and Polish Judicial Authorities v. Celinski [2016] 1 WLR 551) and then at para 42 et seq she considered the factors for and against extradition. She noted that the Appellant has been in the United Kingdom since September 2010 and that he worked initially, although he is unable to work now because of his health. At para 43 she set out her conclusions on the medical evidence and it is clear she accepted without reservation the medical picture that had been put in front of her. At para 45 she said:

"However I have no information about whether his particular needs can be accommodated in prison in Poland. It is reasonable to assume there are medical facilities in prison which cater for a range of conditions, including a stoma. Equally if a prison is not able to manage condition ( sic) it is reasonable to assume treatment can be provided by agencies outside the prison system, including a transfer to hospital if necessary. Further it is reasonable to assume where the health of the prisoner is such that detention in a prison hospital is unsuitable the relevant authority could bring the matter back to court to determine whether it is appropriate for Mr Magiera to serve the rest of the sentence in prison. I have no evidence that Mr Magiera's medical needs cannot be dealt with in the prison environment."

10

She said that the Appellant has no convictions in the United Kingdom and has led a law-abiding life here. However, at para 43 she labelled the offences as "serious" and, having adopted the Celinski checklist approach at paras 50 and 51, she concluded at para 52:

"On the evidence before me, there is nothing to suggest that the negative impact of extradition on Mr Magiera is of such a level that the court ought not to uphold his country's extradition operations. I am satisfied extradition in this case would not be a disproportionate interference with their ( sic) Article 8 rights."

11

In relation to s 25 she essentially relied on the same reasoning to reject the contention that it would be oppressive to extradite the Appellant because of his ill-health. She said at para 55, "there is no reason to believe he will not be treated properly in prison and provided with adequate care for his condition."

The grant of permission and fresh evidence

12

There are three grounds of appeal: (a) that extradition would be incompatible with the Appellant's rights under Article 8 of the ECHR; (b) that it would be incompatible with his rights under Article 3 of the ECHR; (c) extradition is barred by s 25 of the EA 2003. Article 3 does not appear to have been raised before the district judge.

13

Permission to appeal in this case was granted by Collins J on 19 January 2017. He said:

"The burden undoubtedly lies with the Appellant to establish his case under section 25 but, once an interference with private life is established, the Respondent has to show the removal would be proportionate. It is, I think, arguable that the assumption made about the provision of all necessary treatment are not justified and further information should have been obtained"

14

Collins J ordered that an up-to-date medical report on the Appellant be obtained and that the Polish authorities be asked whether the Appellant could be properly treated in the prison system.

15

The up-to-date medical report is dated 22 May 2017 and the author is Mr Manish Chand, who is a locum consultant colorectal and general surgeon at...

To continue reading

Request your trial
21 cases
  • Joao Antonio Delgardo Henriques v Judicial Authority of Portugal
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 30 Julio 2019
    ...by a doctor. Discussion 36 The correct approach in principle to the issue before this court was set out by Knowles J in Andrzej Magiera v District Court of Krakow, Poland [2017] EWHC 2757 (Admin): “34 …. where a requesting state is asked to respond to concerns about the health of a person ......
  • A v Deputy General Public Prosecutor of the Lyon Court of Appeal
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 8 Abril 2022
    ...Contracting Party would not expose the extradited person to the self-same risk. 62 In Magiera v District Court of Kracow, Poland [2017] EWHC 2757 (Admin) at paras 32–36 Julian Knowles J stated what the approach of this Court should be in a case involving section 25 of the 2003 Act: “32. Wh......
  • Vincenzo Surico v Public Prosecutor of the Public Prosecuting Office of Bari, Italy
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 5 Marzo 2018
    ...what health care facilities would be available to him in prison in Italy, and relies upon Magiera v District Court in Krakow, Poland [2017] EWHC 2757 (Admin), paras 34 – 35, where I said that the general presumption that EU Member States will provide sufficient health care in prison would b......
  • Kruk v Judicial Authority of Poland
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 26 Febrero 2020
    ...Debiec v District Court of Piotrkow Trybunalski (Poland) [2017] EWHC 2653 (Admin), Magiera v District Court of Krakow, Poland [2017] EWHC 2757 (Admin), Cash v Court of First Instance, Strasbourg, France [2018] EWHC 579 (Admin) and XY v Netherlands [2019] EWHC 624 32 In my judgment, it i......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT