Jacek Piekarski v The District Court in Lublin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 10 May 2022 |
| Neutral Citation | [2022] EWHC 1088 (Admin) |
| Docket Number | Case No: CO/806/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1088 (Admin)
THE HONOURABLE Mr Justice Linden
Case No: CO/806/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Florence Iveson (instructed by National Legal Service) for the Appellant
Tom Cockroft (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 5 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.
Introduction
This is an appeal from a decision of the Westminster Magistrates Court — Senior District Judge Goldspring (“the SDJ”) — dated 26 February 2021, to order the extradition of the appellant to Poland. It was common ground before the SDJ that the appellant was a fugitive and the SDJ rejected the two bars to extradition contended for by him, namely that the respondent was not a valid “judicial authority” for the purposes of section 2 of the Extradition Act 2003 and, secondly, that the extradition of the appellant was contrary to Article 8 of the European Convention on Human Rights (“ECHR”).
The appeal is brought pursuant to section 26 of the 2003 Act and it originally challenged the SDJ's decision on both the section 2 and the Article 8 points. By order dated 20 July 2021, the section 2 ground was stayed by Griffiths J pending the outcome of Wozniak v Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin). Permission was granted on the Article 8 ground. The section 2 ground has now fallen away in the light of the decision of the Divisional Court in Wozniak and so the only live challenge before me was to the SDJ's decision on Article 8 ECHR.
The warrant and the arrest of the appellant
The European Arrest Warrant (“EAW”) in this case was issued on 6 June 2017 and certified on 21 June 2017. It concerns the conviction of the appellant of an offence equivalent to criminal damage which was committed on 13 July 2011. The particulars of the offence are that he smashed the window of a Volkswagen Passat which was parked in an unmanned car park in Lublin and threw a bottle of a flammable substance into the car, which then caught fire causing damage to the value of approximately £1,425. The appellant pleaded guilty to this offence at a court hearing on 7 March 2012 and was informed that judgment would be handed down at a further hearing on 11 April 2012, but he failed to attend having left Poland to come to this country. He received a suspended sentence of two years' imprisonment with a condition that he paid compensation for the damage which he had caused within a year, but he failed to do this, and, on 13 October 2013, the suspended sentence was activated.
The appellant was said by the Polish authorities to have become unlawfully at large on 24 January 2014. It was established by 7 March 2017 that he had left Poland and was living in the United Kingdom and the EAW was applied for. By the time it was issued on 6 June 2017, the appellant was believed to be living in Cardiff. Although the EAW was certified shortly after this, the appellant was not arrested until 24 September 2020. He has been in custody since then.
The issues in the appeal
The appeal is primarily on the basis that, in reaching his decision on the issue of proportionality in relation to Article 8 ECHR, the SDJ relied on material findings which appear to relate to a different case and/or are wholly incorrect insofar as they actually are findings about the appellant's case. However, Griffiths J also gave permission for the wider issue of the compatibility of the SDJ's order with Article 8 to be raised.
In her clear and helpful skeleton argument, Ms Iveson accepted that the SDJ's self-directions of law were broadly correct and that he broadly included the relevant matters when setting out the factors for and against extradition on the Celenski balance sheet. However, she demonstrated that when the SDJ came to carry out the balancing exercise itself at [62]–[65] of his judgment, he appears to have included findings from another case. She pointed to references to submissions by an advocate who had never been involved in this case and findings of fact and comments about the case which are wholly at odds with the evidence, and she submitted the facts of the present case are materially different to those which the SDJ said that he took into account. She submitted that the SDJ had therefore plainly erred. Ms Iveson also pointed to a small number of unfinished sentences and/or sentences in the judgment which did not make sense. Although she was evidently too polite to say so, it appears highly likely that the errors to which she drew attention were the result of cutting and pasting from another judgment, a failure to proof read the judgment in draft and/or a draft being promulgated, rather than the final version. Whatever the cause, it was hardly necessary to say that this was a very unfortunate state of affairs.
In answer to questions from me, Ms Iveson confirmed that her submission was that, applying Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) [66] I should hold that the SDJ “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, and/or he failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor”. She accepted, however, that the effect of sections 27(3) and (4) of the Extradition Act 2003 is that I would only allow the appeal if the SDJ “ought to have” ordered the discharge of the appellant, rather than his extradition, on the evidence before him (section 27(3)) or would have been “required to” order his discharge on the evidence which is now available (section 27(4)).
Ms Iveson also confirmed that she was not submitting that the SDJ “ought to have” discharged the appellant on the evidence before him at the hearing in February 2021. Her case was that as the appellant has been in custody since his arrest on 24 September 2021, he had now served 1 year, 7 months and 12 days of his 24-month sentence. It was not proportionate to order his extradition when the other circumstances of the case are taken into consideration. The case fell within section 27(4) of the 2003 Act. I should carry out the Article 8 assessment on the evidence now before the court and order the discharge of the appellant.
Mr Cockroft agreed with this analysis of the appellant's case. In particular:
i) He did not dispute that there were the errors in the SDJ's judgment which Ms Iveson identified in her skeleton argument, that they were material and that therefore there were errors in the SDJ's reasoning in the Balbin sense referred to above. In my view he was right not to do so as, unfortunately, Ms Iveson's criticisms of the judgment were all well founded.
ii) He agreed that therefore I should carry out the Article 8 assessment myself on the materials currently available and decide whether it would be proportionate to extradite the appellant. He did not suggest that the phrase “would have been required to order the person's discharge” in section 27(4)(c) of the 2003 Act required a narrower approach than this, although there are suggestions to the contrary in Lazarov v Prosecutor's Office in Varnia, Bulgaria [2018] EWHC 3050. I will proceed on the assumption that the approach agreed between counsel is correct.
iii) He accepted that I may therefore take into account the one factor which is said by the appellant to have changed since the SDJ's order, namely that he has served the bulk of his sentence. Again, this concession was correctly made, compare Newman v District Court of Krakow, Poland [2012] EWHC 2931 (Admin) [20].
It followed that the agreed position between counsel was that I should decide whether the extradition of the appellant would be compatible with Article 8 ECHR. The evidence on which I was asked to do so comprised the two witness statements of the appellant and the documents which were before the SDJ, those of his findings of fact which were based on the evidence in this case, and the fact that the appellant has remained in custody since the hearing before the SDJ.
Legal framework
The general approach to applying Article 8 ECHR in this context
As is well known, by virtue of section 21 of the Extradition Act 2003 extradition to a category 1 territory may only be ordered if to do so is compatible with the ECHR. Article 8 ECHR provides:
“ Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In the present case the appellant has no family in this country and he therefore relied on “respect for his private…. life….”. There was no dispute that extradition would interfere with his private life, that the interference would be “in accordance with the law” and that it would have a legitimate aim, namely the prevention of disorder or crime. The issue was therefore whether the...
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