Grzegorz Pogorzelski v Regional Court in Warsaw, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 24 April 2015 |
| Neutral Citation | [2015] EWHC 1076 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6038/2014 |
| Date | 24 April 2015 |
[2015] EWHC 1076 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holroyde
Case No: CO/6038/2014
Miss Natasha Draycott (instructed by Kaim Todner Solicitors Ltd) for the Appellant
Miss Hannah Hinton (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 25 th February, 2015
The Regional Court in Warsaw issued three European Arrest Warrants against the Appellant. He was arrested in this country, and on 22 nd December 2014, in the Westminster Magistrates' Court, District Judge (Magistrates' Courts) Tempia ordered his extradition to Poland. The Appellant appeals against that order.
I am grateful for the helpful submissions, both written and oral, of counsel Miss Draycott for the Appellant, and Miss Hinton for the Respondent. I reserved judgment so that I could give further consideration to those submissions, and to the authorities which had been cited to me. I will not mention every point which was argued, but I have taken them all into account in reaching my decision.
Each of the three European Arrest Warrants issued against the Appellant was a "conviction" warrant. The relevant facts can be summarised as follows.
The Appellant was born on 12 th March, 1977, and so is now 38 years of age.
On 13 th June 2002 the Appellant, acting together with another man, stole mobile phone from a shop ("Offence 1"). He pleaded guilty and was convicted of that offence, and on 12 th August 2005 he was sentenced to one year's imprisonment, suspended for 4 years.
Less than six months into the operational period of that suspended sentence, the Appellant reoffended. On 16 th January 2006, again acting together with others, he stole a laptop computer from a company ("Offence 2").
On two occasions in August 2007 (and therefore still within the operational period of the suspended sentence imposed for Offence 1) the Appellant committed offences of intentional dealing in stolen property by assisting another man to sell a stolen mobile phone and a stolen laptop computer ("Offence 3").
On 7 th March 2008 the Appellant left Poland and came to the UK.
On 27 th November 2008 the Appellant was convicted of Offence 2, and sentenced to one year's imprisonment, all of which remains to be served. That sentence became enforceable on 2 nd September 2009.
On 11 th September 2009 the District Court in Warsaw activated the suspended sentence which had been imposed for Offence 1. Taking into account the short time he had spent in custody, he has 11 months 29 days still to serve.
On 25 th November 2010 the Appellant was convicted of Offence 3.
On 4 th May 2011 the District Court in Warsaw issued a European Arrest Warrant in relation to Offence 1 ("EAW 1"). That warrant was certified by the National Crime Agency on 4 th July 2011.
On 13 th July 2011 the Appellant was sentenced to a total of 18 months' imprisonment for Offence 3, of which he has 8 months 28 days still to serve.
On 8 th August 2011 the District Court in Warsaw issued a European Arrest Warrant in relation to Offence 2 ("EAW 2"). That warrant was certified by the National Crime Agency on 6 th May 2012.
On 14 th March 2013 the District Court in Warsaw issued a European Arrest Warrant in relation to Offence 3 ("EAW 3"). That warrant was certified by the National Crime Agency on 11 th September 2013.
Whilst in this country the Appellant initially lived with his mother in Peterborough. After about 6 months he and his partner left that address and moved to their present home in Lancashire. The couple have two children: a boy born in March 2009, now aged 6; and a girl born in November 2010, now aged 4.
The Appellant was arrested pursuant to EAW 2 on 2 nd July 2012, and further arrested pursuant to EAW 3 on 19 th May 2014.
At the hearing in the Magistrates' Court, DJ Tempia received in evidence a bundle of documents, including further information provided by the requesting authority, and heard oral evidence from the Appellant. His evidence was to the effect that he was present when convicted and sentenced for Offence 1, but was not present at his trial for Offence 2 and had no recollection of any proceedings in relation to Offence 3. He accepted that he had come to this country whilst still subject to his suspended sentence. He said he believed the only requirement of his suspended sentence was that he must not reoffend. He said that he had told his probation officer in Poland that he was coming to this country, had given a contact address which was his mother's address in Peterborough, and believed that the probation officer would pass on that information to the police and the court. The Appellant told the court that he had lived openly in Morecambe, and that the Polish Consulate in Manchester had made contact with him there (even though he had not given that address to the authorities) and had corresponded with him in 2009 and 2010 about a matter in which he was a witness. He also said that he had been in contact with the Polish court in 2010. I have seen copies of a number of envelopes which I take to be evidence of the court in Warsaw corresponding with the Appellant at his Morecambe address in 2010.
As to his personal circumstances, the Appellant gave evidence that he is the main breadwinner for his family. His partner works part time, and would not be able to continue in that employment if she had sole care of the children. She has subsequently provided a statement, which was relied on by the Appellant before me, to the effect that she does not hold a driving licence and is dependant on the Appellant to take the children to their school, which is a considerable distance from their home. Both she and the Appellant say that the children would suffer greatly if the Appellant is extradited to Poland and required to serve his sentences there.
Both in the lower court, and in his grounds of appeal, the Appellant has raised three issues. First, as to EAW 1, he relies on section 14 of the Extradition Act 2003 and submits that it would be unfair and oppressive to extradite him because so much time has elapsed. Secondly, as to EAW 3, he relies on section 20 of the 2003 Act and submits that he was convicted in his absence and does not have the necessary guarantee of a retrial if he is extradited. Thirdly, in relation to all three EAWs, he relies on his and his family's Article 8 rights, and submits that his extradition pursuant to all or any of the warrants would be a disproportionate interference with those rights.
Before referring to the relevant statutory provisions, and then considering the three grounds of appeal in turn, I remind myself of the approach I must take. The right of appeal against a decision to order extradition arises under section 26 of the Extradition Act 2003. This is not a case in which the Appellant advances his appeal on the basis of a fresh issue, or fresh evidence, that was not available at the hearing below. Accordingly, by section 27(2) of the 2003 Act, the High Court may only allow the appeal if the conditions in subsection (3) are satisfied:
"(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
In Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) a Divisional Court considered how the court should approach an appeal in which there was a challenge to a District Judge's decision on an Article 8 proportionality issue. Aikens LJ referred to a decision of Beatson LJ in an earlier case and said (at paragraph 66):
"In our view Beatson LJ was correct in suggesting that it is the "review" approach that should be taken by this court when it is considering an appeal from the conclusion of the District Judge on an issue of Article 8 "proportionality" in an extradition case. Under section 27(3) of the EA this court can only allow an appeal if it concludes that the "appropriate judge" should have decided a question before him at the extradition hearing differently. In this context the relevant "question" is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family's) Article 8 rights. If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of "fresh evidence" arises on an appeal on "proportionality", a successful challenge can only be mounted if it is demonstrated, on review, that the judge below (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse."
It is not disputed that each of the offences of which the Appellant was convicted is an...
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