Artur Krzysztof Gorczewski v Court of Swidnica, Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Green |
| Judgment Date | 14 February 2019 |
| Neutral Citation | [2019] EWHC 279 (Admin) |
| Docket Number | Case No: CO/4389/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 February 2019 |
[2019] EWHC 279 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lord Justice Green
Case No: CO/4389/2017
Hugh Southey QC and Florence Iveson (instructed by JD Spicer) for the Appellant
Mark Summers QC and Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 3 May 2018
Further written submissions 19 and 30 November 2018
Approved Judgment
The appellant was born on 19 July 1987. He and his partner Eveline Jaroszek have two children: Brian, born on 20 July 2012 and Lily, born on 23 October 2014.
On 13 November 2006, when he was 19 years old, the appellant broke into an allotment shed. He was convicted of an offence in respect of this incident on 6 March 2007. A suspended sentence of six months imprisonment was imposed.
In February 2008 the appellant stole three aluminium work platforms worth £425. Four months later he moved to the UK. In December 2008 he returned to Poland for the hearing in his theft case. He was provisionally arrested and pleaded guilty. On 8 January 2009 he was present in court when he was convicted of the theft offence and a sentence of one year's imprisonment, suspended, was imposed.
By an order of the Polish court dated 13 March 2009 the six month suspended sentence for breaking into the shed was activated. In the same month the Appellant returned to the UK and appears to have been here ever since. By a further order of the Polish court dated 8 December 2009 the one year suspended sentence for theft of the aluminium platforms was activated.
On 19 April 2012 the first of the two European arrest warrants in this case was issued, in respect of the one year sentence for theft. In the following month, the National Crime Agency was notified by the Polish authorities that the Appellant was wanted on an EAW. But it was not until 25 June 2017 that the Appellant was arrested in the UK. This was in respect of another alleged matter which resulted in no further action, but he was then arrested on the first EAW. A second EAW, in respect of the offence of breaking into the shed, was issued on 28 June 2017.
The appellant appeared for an initial hearing at Westminster Magistrates' Court on 26 June 2017. He did not consent to extradition. The final hearing took place before DJ Tempia on 31 August 2017. Her reserved judgment was issued on 19 September 2017. She ordered Mr Gorczewski's extradition.
There was no dispute that the warrants were compliant with section 2 of the Extradition Act and that the two offences concerned were extradition offences. There was also no dispute that the Appellant had been present in court in Poland when the suspended sentence for theft was imposed on 8 January 2009. He also accepted that he had been in court when the six month suspended sentence for breaking into the shed was activated. He also admitted that he had been required to tell the authorities of any change of address and that he was obliged to keep in touch with his probation officer in Poland. He did not do so because he wanted to start a new life. It was, therefore, inevitable that the Appellant conceded, and the District Judge found, that he was a fugitive.
It was submitted on his behalf that he had been a young man (aged 18 and 20 respectively) when the offences were committed. He was now the father of two young children, and also stepfather to a teenager. The young children had some medical problems and the impact of separation on them would be severe. His partner would struggle financially if he were extradited and she would have to claim benefits. It was submitted that the public interest in his extradition was very low given that the offences were old and not of a serious nature.
The District Judge noted the constant and weighty public interest in extradition and the need for the UK to honour its treaty obligations, so that there should be no safe havens to which fugitive offenders can flee; and the need to have regard to the decisions of the judicial authorities of a State such as Poland which should be accorded a proper degree of mutual confidence and respect. The delay of five years in certifying the first EAW was explained by the fact that the authorities could not trace the appellant in the UK in 2012. The delay was in any event attributable to the appellant fleeing from Poland. She noted that this was not a sole carer case and that the appellant's partner was and would remain the primary carer. The appellant's mother, her partner and his single brother lived close to the family and could help with childcare or financially if necessary.
She noted the factors against extradition. During the five year period of delay in certifying the EAW the Appellant had turned his life around. He had lived in the UK since 2008 and has been in continuous work. He registered with the Home Office and has a National Insurance number. The offences were not the most serious in nature and were committed when he was a young man. He is of good character in the UK. His two young children have health problems although they are not severe. He has a close relationship and strong bond with the children.
The District Judge referred to Polish Judicial Authority v Celinski [2016] 1 WLR 551 in which Lord Thomas CJ, giving the judgment of a three judge Divisional Court, said at paragraph 39:-
“… the important public interests in upholding extradition arrangements and in preventing the UK being a safe haven for a fugitive as Celinski was found to be would require very strong counter-balancing factors before extradition could be disproportionate.”
The judge continued:
“I do not find that the very strong counter-balancing factors are before me in this case. Mr Gorczweski is a fugitive, he was present when the sentence in EAW 2 was activated and his own application to postpone the activation of the sentence was refused on 25th June 2009. In relation to EAW 2 he knew that by failing to keep in touch with his probation officer he had breached the terms of the suspended sentence. He was aware both sentences were activated but left Poland to avoid serving them in order to start a new life. There has been a 5 year delay in certifying EA W 1 but this has been explained by the NCA, which I have accepted.
I also accept the offences are not of the most serious kind but the sentence of 1 year 6 months to serve is substantial and, after initially both being suspended, the commission of a further offence and not complying with conditions has resulted in him facing a lengthy sentence.
Delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. In this case Mr Gorczweski has been working since being in the UK, is a father to two small children and a teenage step son and is a man of good character. The younger children have health issues but they are not life threatening. His partner works part life and he has family who live close by and could help the family if necessary, his mother already assists with childcare when she can.
The impact of extradition on this family both financially and emotionally, including the children, is an unfortunate consequence in any extradition proceedings. The children will still have their mother, who is the primary carer, and she is working. She could either continue to work or rely on the State financially if necessary.
In balancing the factors for and against extradition I accept that Mr Gorczweski's and his family's article 8 rights are engaged but, in my judgment, the high public interest outweighs the other factors in this case. Extradition would not be incompatible with the Convention and would not be disproportionate.”
The judge therefore ordered Mr Gorczewski's extradition under section 21(3) of the 2003 Act. He applied for permission to appeal. The grounds of appeal, as amended, raised one ground, namely that the judge erred in finding that extradition was a proportionate interference with the appellant's Article 8 rights pursuant to section 21. Permission to appeal was refused on...
To continue reading
Request your trial
-
The Circuit Court Of Warszawa-praga Against Patryk Michal Maciejec
...better to await the outcome of these proceedings. (See however the remarks made by Lord Justice Bean in Gorczewski v Court of Swidnica [2019] EWHC 279 at para 24 suggesting this course was unlikely.) In the meantime the evidence adduced indicated that there had been a breakdown in the rule ......