Barbara Murawska v District Court Koszalin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 01 June 2022 |
| Neutral Citation | [2022] EWHC 1351 (Admin) |
| Docket Number | Case No: CO/1712/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1351 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/1712/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Amelia Nice (instructed by Lawrence & Co CDS LLP) for the Appellant
Mark Smith (instructed by Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 11 May 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Covid-19 Protocol: this judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time of hand-down is 10.30am on 1 June 2022
Introduction
This is an appeal against an Order for the extradition of the appellant made by Senior District Judge Goldspring (“the SDJ”) on 7 May 2021, at the Westminster Magistrates Court.
The appeal is brought pursuant to section 26 of the Extradition Act 2003. The Perfected Grounds of Appeal took points under section 2 of the 2003 Act, as to whether the respondent is a valid “judicial authority”, and under section 21 on the basis that extradition was not compatible with the appellant's rights under Articles 3 and 8 of the European Convention on Human Rights (“ECHR”). The section 2 and the Article 3 points have since fallen away in the light of the decisions of the Divisional Court in Wozniak v Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin) and Litwinczuk v Poland [2021] EWHC 2735 (Admin). However, permission was granted on the Article 8 ground by Order of Sir Ross Cranston dated 24 January 2022.
The extradition proceedings
The effective European Arrest Warrant (“EAW”) in this case was issued on 12 November 2020 and was certified by the National Crime Agency on 18 November 2020. It concerns a single conviction, on 14 February 2011, for six offences of theft from the person committed between April and September 2010. The total value of the thefts was in the order of £337.
The appellant was sentenced to 6 months' imprisonment, conditionally suspended for 2 years, and the custodial sentence was activated on 21 March 2013. However, execution of the sentence was deferred following applications to the Polish courts by the appellant and, on 26 November 2014, the custodial element was conditionally suspended again, for a further period of 3 years. The sentence was activated again on 28 November 2016 because of the commission of further offences in June to October 2015 but, on 6 March 2017, the Polish court granted the appellant permission to serve the term outside prison under an electronically monitored curfew. On 20 June 2017, the Order of 6 March 2017 was revoked, and the appellant was conditionally released from the rest of her sentence, one of the conditions being that she maintained contact with the probation service until 20 June 2019. However, upon the appellant leaving Poland in January 2018, and subsequently losing contact with the probation service, her release from her sentence was revoked by Order dated 21 September 2018 and the execution of the rest of her sentence was ordered.
There are 2 months and 13 days of the appellant's sentence remaining given the period of electronically monitored curfew which she has served. An EAW was issued on 9 March 2020 and the appellant was arrested pursuant to it in October 2020, but she was released again upon this EAW being discharged. She was then arrested again on 1 December 2020 pursuant to the 12 November 2020 EAW referred to above.
Given the date of the appellant's arrest, it is agreed that the Extradition Act 2003 applies to this case in its unamended form and that the EU Framework Decision also applies. The extradition hearing before Westminster Magistrates Court took place on 20 April 2021 and, as I have said, the Order for extradition was made on 7 May 2021.
The appeal
Counsel for the appellant, Ms Nice, made various criticisms of the SDJ's judgment. In her oral submissions she began with a contention that the SDJ had made a material factual error in that he had found that the appellant had lied when she gave evidence that she lived with her long term partner, Mr Jozef Szerwinski. The success of this ground of appeal depends on the appellant being permitted to rely on fresh evidence. There is also an application to rely on fresh evidence about the appellant's relationship with Mr Szerwinski and their circumstances more generally for the purposes of the arguments under Article 8 ECHR.
Ms Nice also contended, in effect, that applying Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) [66], the SDJ failed to take into account various relevant considerations in reaching his decision under Article 8 ECHR. These were:
i) the fact that there were only 2 months and 13 days left on the appellant's sentence;
ii) the impact of incarceration upon the appellant given her age, which was 63 at the time of the extradition hearing, and given that this would be her first period in prison;
iii) the degree of seriousness of the offences;
iv) the effect of extradition on the appellant's immigration status;
v) the fact that the appellant has been subject to a tagged curfew as a condition of bail since her arrest;
vi) the fact (the appellant said) that the appellant had paid the compensation required as part of the suspended sentence order; and
vii) the fact that the appellant had been arrested twice and the anxiety which the threat of extradition had caused.
Ms Nice also argued that the SDJ had erred in his approach to the question of delay. In particular, he had applied an approach which was appropriate to the potential bar under section 14 of the 2003 Act based on the passage of time, rather than the correct approach where the court is carrying out the proportionality assessment under Article 8 ECHR.
Finally, she contended that the SDJ had erred in finding that the appellant was a fugitive.
Alleged factual error in relation to the appellant's relationship with her partner
Background
Dealing with the application to admit fresh evidence first, before the extradition hearing the appellant consulted a solicitor, Ms Alison Fong San Pin, of Lawrence & Co CDS LLP. Legal aid was refused, and the consultation therefore took place on a private basis on 20 January 2021. The appellant paid for an hour of Ms Pin's time. She was asked to help the appellant prepare a proof of evidence. They communicated through an interpreter who was also paid for by the appellant. No legal advice was given and nor was there time or funding to take the appellant through her proof to check that it was correct. Ms Pin typed up the proof of evidence in English and emailed it to a friend of the appellant's who spoke English, a Ms Vicktoria Prokopczuk, so that she could help the appellant to read it through and sign it.
The proof was apparently sent to the court unsigned and undated, although it is not clear by whom. It was brief: it ran to 4 pages and was double spaced. It said that the appellant first came to this country in September 2016, that she had lived at 30 Chamberlain Street, St Helens in Merseyside since October 2018 and that she lived there with Mr Szerwinski. It gave his date of birth as 24 February 1957. It said that he is her ex-husband “We divorced in 2002 but we are on good terms”. It also gave details of the appellant's employment as a warehouse operative in a factory in St Helens and, importantly for present purposes, at [18] it said that Mr Szerwinski worked “in a factory for Rockwood Limited, Chiswick Tower, 289 Chiswick High Road, Chiswick, London, W4 4AL. It makes building material for insulating buildings”. The proof said that the appellant has no children of her own and that Mr Szerwinski has children from a previous marriage who are now adults. It also set out information about various health issues which the appellant and Mr Szerwinski were experiencing. Other topics touched on in the proof were the appellant's accommodation costs and her response to some aspects of what was said in the EAW.
The appellant appeared in person at the extradition hearing, via CVP, and communicated with the court through an interpreter. At [34] and [35] of his judgment the SDJ described the hearing as follows:
“34. The requested person appeared via a CVP connection, this was the third attempt at securing an extradition hearing, on a previous occasion she struggled with the technology and did not turn her camera on, the same problem persisted on this occasion and although it was too late and not in the interest of justice to rescind the CVP order, I would not have granted the application in the first place. Therefore, the requested person was not in the court room, was unable to sign her proof of evidence and had not prepared for the hearing (perhaps unsurprisingly given she was unrepresented) and therefore did not have a copy to hand, I therefore confirmed with her that she had prepared such a statement and that she wished to rely upon its content.
35. She confirmed following taking the oath that she had prepared it with the solicitors before they withdrew due to the lack of funding and that she indeed wished to rely upon it although she could not remember its content. I therefore read each line to her through the interpreter of the below proof at the end of every sentence I asked her to confirm whether or not the content of the previous sentence was true and only if she did move on. She confirmed at the end of every single statement that the previous sentence was true and her evidence. This is important as will become...
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