Grzegorz Smulczyk v Judicial Authority of Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1697 (Admin) |
| Docket Number | Case No: CO/872/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1697 (Admin)
Mr Justice Fordham
Case No: CO/872/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Amanda Bostock (instructed by JD Spicer Zeb) for the Appellant
Saoirse Townshend (instructed by CPS) for the Respondent
Hearing date: 21.6.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an extradition appeal on grounds invoking section 14 of the Extradition Act 2003 (injustice or oppression by reason of the passage of time) and Article 8 ECHR (disproportionate interference with private or family life). The hearing before me was a remote hearing by Microsoft Teams. That mode of hearing was requested by the representatives of both parties in the context of difficulties in relation to transport and travel to court. They were satisfied, as was I, that the mode of hearing involved no prejudice to the interests of their clients. Open justice was secured through the publication of the case, its start time and mode of hearing, together with an email address usable by anyone who wanted to observe the hearing, in the Court's cause list. I am satisfied that the mode of hearing was justified and appropriate.
Permission to appeal was granted by Sir Ross Cranston on 28 August 2019. The Appellant is aged 38 and is wanted for extradition to Poland. That is in conjunction with an accusation EAW (European Arrest Warrant) issued on 8 August 2017 and certified on 26 September 2017, on which he was arrested on 23 November 2017. He has been on conditional bail ever since. Extradition was ordered by DJ Robinson (“the Judge”) for the reasons given in a judgment (“the Judgment”) dated 16 February 2018, handed down on 22 February 2018. That was after an oral hearing on 15 February 2018. At that hearing, the Appellant and his partner (“the Partner”) each gave oral evidence and was cross-examined, having put forward a proof of evidence dated 15 February 2018 (the Appellant) and witness statement dated 14 February 2018 (the Partner). In the Judgment, the Judge dealt with several issues. Among them were the section 14 and Article 8 grounds for resisting extradition, on the evidence as it then was.
By an order of this Court on 14 January 2019, the Appellant's legal aid representation order was extended to authorise the obtaining of a medical report from a neurologist. A report dated 15 March 2019 (“the Hart Report”) was duly filed. Its author was Dr Paul Hart. He had been involved in the Appellant's case since 15 December 2016 when the Appellant first had a consultant's appointment in this country to evaluate his epilepsy and the seizures which he has had as a consequence of that condition. The Judge was aware of the epilepsy. He had seen documents including those relating to Dr Hart's diagnosis and the ongoing medical response to the Appellant's epilepsy and seizures. Naturally, he did not have the Hart Report. In addition to the Hart Report, there is a series of further material put forward before this Court on behalf of the Appellant, as ‘fresh evidence’. It includes three further witness statements from the Partner dated 23 March 2018, 17 August 2020 and 1 June 2022. There are also 163 pages of medical records relating to the Appellant (“the Medical Records”), including notes and letters. There is a one-page private GP's letter dated 17 June 2022 (“the Private GP Letter”) from Dr Mark Sarnicki who Ms Bostock tells me saw the Appellant and the Partner the week before the hearing, did not conduct tests, but reviewed the Medical Records and saw a video of one of the Appellant's seizures. There is also a letter relating to the Partner, from a consultant orthopaedic surgeon, dated 30 December 2019.
This is an appeal against an order for extradition made in February 2018 which has come to be the subject of a substantive hearing on 21 June 2022, 4 years and 4 months later. How come? What happened was that the Appellant's appeal was filed on 27 February 2018 and the Respondent's Notice on 9 April 2018. By order of Lewis J on 19 June 2018 a stay was granted pending the determination of a lead case ( Lis v Poland [2018] EWHC 2848 (Admin)) regarding issues of judicial independence and the rule of law in Poland. The extradition bar raised in Lis did not succeed and judgment was delivered in that case on 31 October 2018. In the present case, the Hart Report was filed on 15 March 2019 and Sir Wyn Williams dealt with permission to appeal on the papers, refusing permission to appeal on 15 July 2019. Then on 28 August 2019 came Sir Ross Cranston's order after an oral renewal hearing granting permission to appeal, limited to the section 14 and Article 8 grounds. What happened next was that, prior to the hearing of the substantive appeal, new life was breathed into the judicial independence and rule of law issue in June 2020, by circumstances and materials which led this Court to grant permission to appeal in what became Wozniak v Poland [2021] EWHC 2557 (Admin). The Appellant sought, and obtained, permission to amend to raise the Wozniak point and a second stay of this appeal, pending final determination in Wozniak. By the beginning of 2022 the Wozniak point had been properly abandoned. The case was fixed for its substantive hearing and skeleton arguments were filed on 31 May 2022 (Appellant) and 7 June 2022 (Respondent). The Appellant's application to adduce the fresh evidence was made on 16 June 2022.
The index offending, of which the Appellant stands accused and in respect of which he is wanted to stand trial in Poland, concerns two matters. They are alleged to have been committed by him in conjunction with another individual (“the Other Man”) involving drug dealing. The first matter is that between 1 December 2011 and 30 June 2012 (when the Appellant was aged 28), the Appellant is said to have “mediated” the dealing in 1kg of cannabis between the Other Man and a third party. The second matter is that between 1 March 2012 and 30 June 2012 (again, when he was 28), the Appellant is again to have “mediated” the dealing in a further 1kg of cannabis between the Other Man and a third party.
The following matters were evidenced by ‘further information’ evidence from the Respondent dated 21 December 2017 (“the Further Information”). The alleged criminal conduct was disclosed to the Polish law enforcement authorities for the first time “only in 2015 and 2016”, when “the evidence appeared” that the Appellant was “dealing in trade of significant amounts of drugs in 2011 and 2012”. The Appellant was the subject of a charging decision in relation to these matters on 7 March 2016. He was arrested and interrogated in relation to these matters on 9 March 2016. He was brought before a court on 10 March 2016. He was not at that stage indicted. The Polish Court at that hearing addressed whether “pre-trial detention” was justified. It decided that “evidence collected at that point in time was not a satisfactory basis to apply the most severe preventive measure … for the conduction of the pre-trial proceedings”. The “preventive measure in the form of a ban on leaving the territory of the Republic of Poland was not applied”. However, the Appellant was obliged “to notify the authority holding the proceedings” of any change of address or whereabouts which lasted for more than 7 days, an instruction which he “received … in writing” and “confirmed … with his own signature” on 9 March 2017.
The following matters are recorded in the evidence and are uncontentious. In 2012 or 2013 the Appellant sustained a head injury in Poland in which he sustained a fractured skull. Subsequently, he developed epilepsy and began experiencing seizures. This was diagnosed and he was prescribed “Epilim”. The relationship between the Appellant and the Partner began in Poland in 2015. That was after a three month period following the breakup of a marriage which led in due course to divorce proceedings. The Appellant went to the Netherlands from Poland in April 2016. The Partner came to the UK from Poland in May 2016. The Appellant joined her here from the Netherlands in June 2016. He obtained a national insurance number that month. The Appellant worked as a builder. The Partner worked as a beautician. The Appellant registered with a GP and by December 2016 had been referred by the GP to Dr Hart. He had his appointment with Dr Hart on 15 December 2016. He told Dr Hart that he had stopped, 18 months earlier, taking the Epilim prescribed to him in Poland, because it made him drowsy. Dr Hart prescribed a new drug (“Kappra”) with an initial dose of 250mg twice a day (“bd”) increasing within a few weeks to 500mg bd.
Fugitivity
A first issue of substance which I have to address is whether the Appellant has properly been regarded as having left Poland as a “fugitive”. That was the Judge's finding. The Judge found that the Appellant did leave Poland as a fugitive, in relation to the drugs matters which are the subject-matter of the extradition proceedings. Having reached that conclusion the Judge went on, “lest I am wrong”, to consider the further matters under section 14 namely injustice and oppression. Four things are common ground in relation to fugitivity. First, if the Appellant has properly been regarded as having left Poland as a fugitive, that is fatal to his arguments based on section 14 (injustice and oppression). Secondly, the key question in determining whether the Appellant left Poland as a fugitive is whether he “has knowingly placed himself beyond the reach of a legal process”: see Wisniewski v Poland [2016]...
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