Gorak v Regional Court in Poznan (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 16 March 2022 |
| Neutral Citation | [2022] EWHC 671 (Admin) |
| Docket Number | No. CO/1184/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 671 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Choudhury
No. CO/1184/2020
Miss R. Hill (instructed by Dalton Hall Gray) appeared on behalf of the Appellant.
Mr S. Hyman (instructed by CPS (Extradition)) appeared on behalf of the Respondent.
( )
This is an appeal against the decision of District Judge Ezzat, sitting in Westminster Magistrates' Court, ordering the appellant's extradition to Poland.
There is a single ground of appeal which is that the District Judge was wrong to conclude that extradition represents a proportionate interference with the appellant's Article 8 rights. Permission to appeal on that single ground was granted by Cutts J on 11 June 2020.
The background to this matter can be stated briefly as follows. The offences giving rise to the proceedings were committed between 2004 and 2006; they comprise conspiracy to defraud an insurance company by transporting a vehicle outside of the jurisdiction, that is to say Poland, so that compensation could be claimed by others in respect of the vehicle's apparent loss; and helping to conceal a motor vehicle through a prohibited act.
The trial in respect of these offences took place in December 2006. The appellant was present, he pleaded guilty and a term of imprisonment of one and a half years was passed. This period of imprisonment was initially suspended. The appellant was required to keep the authorities apprised of his whereabouts. However, the appellant travelled to the UK in 2007, and failed to comply with the conditions of the suspension. He was summoned to a hearing in August 2009, which he did not attend. A suspended sentence was then activated. He was required to attend prison on 20 November 2009, but failed to do so.
The court ordered a search and on 13 July 2011 a European Arrest Warrant (“EAW”) was issued. The appellant was arrested under the EAW. He opposed his extradition. However, his extradition was ordered by District Judge Coleman and he was returned to Poland to serve his sentence, which he commenced doing on 2 June 2016.
The appellant's behaviour during his incarceration has been described as “exemplary”. On 12 July 2017 he was released on licence with two conditions; these were that the appellant must subject himself to supervision of a probation officer who is local to his place of residence and that the appellant find gainful employment. The justification for the release and these conditions included the fact that the Judicial Authority considered that the appellant's further stay in a penal institution would not have any more tangible rehabilitation results, and would, in fact, amount to “the implementation of oppressive sanctions”. The Judicial Authority stated that “the goal of punishment has been met”.
The release terms contained a caution. One of the provisions in that caution was that he was obliged to follow certain requirements, and this included that he must not change his place of fixed residence without the consent of the court. At the time of his release it appears that the appellant was residing with family in Poland. In breach of the caution, the appellant returned to the UK to be with his family. His evidence to the court was that he believed there was no restriction on his leaving Poland for the UK.
There was a letter from the appellant to the Court in Poland, dated 28 July 2017, in which he requested that he be permitted to complete his supervision in the UK and gave his address, which was an address in Spalding, where he could be contacted. It is not entirely clear from the papers whether that letter was written and sent to the Polish Courts while the appellant was still in Poland, or whether it was sent on his behalf after he had already left for the UK. There is certainly evidence, which is not disputed, that the letter was sent in Poland on that date. On 4 September 2017 the court refused the request made by the appellant. Although the appellant maintained contact with the Polish probation service, he failed to attend the next hearing and on 23 April 2018 he was recalled to prison.
A further EAW was issued on 6 August 2016, and the appellant was arrested under it on 8 January 2020. Since his arrival in the UK in 2007, and apart from the period of incarceration in 2016 to 2017, the appellant has lived a blemish- free life in the UK with his partner with whom he has a son, aged 8. He also has family ties with his partner's daughter from a previous relationship.
The District Judge considered the evidence, which included oral evidence given by the appellant. The District Judge said as follows in relation to the evidence given by the appellant:
“16 Having had the opportunity to hear and read the RP's evidence, I find him to be an unreliable witness.
17 I found the RP to be evasive in some of his answers. He answered questions that he wanted to answer rather than the questions that were actually put. When the RP's answers were subjected to a degree of rigour he would revert back to avoiding answering the question.
18 The RP's primary submission was that he was unaware of any restrictions placed on him upon his release. He maintains that he did not know that he required the consent of the court to change address and, in turn, to move to the UK.
19 I do not find that account to be in the least bit credible. The RP had previous experience of living abroad whilst subject to probation supervision. On the first occasion he sought, and claims to have obtained, written permission to move to the UK. The RP was unable to explain why he had sought permission on that occasion but not on the more recent one.”
The District Judge went on to find that the appellant had been in “flagrant disregard” of the terms of release, and held that he was a fugitive.
As to the Article 8 considerations, the Judge set out the factors in favour of extradition and those which might militate against extradition at paragraphs 26 to 36 of the judgment. These included the weighty interest in ensuring that extradition arrangements are honoured, and the interest in discouraging persons from seeing the UK as a State willing to accept fugitives. The Judge noted that the sentence to be served was relatively short and therefore the impact felt by the requested person and his family would be significantly less than if the sentence was longer. The Judge also noted that, against extradition, was the fact that the offences are of some age, that the large proportion of the sentence imposed had been served and that he has a family in the UK who are dependent on him. The Judge considered that the shortness of the sentence meant that the impact of the short separation would be comparable to that resulting from working abroad or serving in the Armed Services.
The Judge concluded as follows:
“37 There are persuasive points on both sides of the argument as to whether or not to order the RP's extradition. That said, to allow the RP to remain in the UK is to reward the RP's flagrant disregard of the terms of his release, and to allow the UK to become a haven for those who do not comply, or have only partially complied with their sentence.
38 There will undoubtedly be a negative impact on the RP's family if extradition is ordered, but the impact, both emotional and financial, is likely to be temporary because the RP is likely, based on his previous behaviour, to return to the UK as soon as he has served the remainder of his sentence.
39 It may well be that in the practical point that, due to the current state of world events, the outbreak and spread of Coronavirus, that the RP's extradition is not actually executed for some time. Any delay would give the RP and his family further opportunity to plan and make provision for his absence. In any event, even if such a delay does not occur the RP has known for at least the past three months that his extradition may be ordered and, in my view, that is ample time to plan for a potential four month absence.
40 Whilst the impact of the RP's extradition may be significant for his family, it will also be short-lived. Having carried out the balancing exercise, I am of the view that the RP's Article 8 rights in this case do not outweigh the UK's duty to fulfil its international obligations.
41 I am satisfied that this is a valid warrant and that there are no bars to extradition or Human Rights' Issues.
42 I accordingly order the extradition of this requested person, Andrzej Gorak, to Poland, pursuant to section 21(3).
Miss Hill, who appears for the appellant, submits that the Judge was wrong to conclude that there had been “flagrant disregard” for the terms of the release, and consequently that the appellant was a fugitive. She submits that there was substantial compliance with the terms of the release conditions. The conditions were to...
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