Janusz Miraszewski (1st Appellant) Lukasz Kanigowski (2nd Appellant) Marcin Flusniak (3rd Appellant) v District Court in Torun, Poland (1st and 2nd Respondents) Circuit Court, Rzeszow, Poland (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins,Lord Justice Pitchford |
| Judgment Date | 17 December 2014 |
| Neutral Citation | [2014] EWHC 4261 (Admin) |
| Docket Number | Case No: CO/4300/3476/3976/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2014 |
[2014] EWHC 4261 (Admin)
Lord Justice Pitchford
Mr Justice Collins
Case No: CO/4300/3476/3976/2014
IN THE DIVISIONAL COURT
ON APPEAL FROM WESTMINSTER MAGISTRATES COURT
Senior District Judge Riddle (Chief Magistrate)
District Judge McPhee (Magistrates' Court)
District Judge Michael Snow (Magistrates' Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Fitzgerald QC and Malcolm Hawkes (instructed by Lansbury Worthington and Shah Law Chambers) for the 1st and 2nd Appellants
Edward Fitzgerald QC and Nick Hearn (instructed by Lawrence & Co) for the 3 rd Appellant
Mark Summers QC and Adam Payter (instructed by The Crown Prosecution Service) for the 1 st 2nd and 3 rd Respondents
Hearing dates: 2nd December 2014
The appeals
These are appeals by Janusz Miraszewski, Lukasz Kanigowski and Marcin Flusniak under section 26 of the Extradition Act 2003 against orders made in the Westminster Magistrates' Court for their extradition to Poland. Section 21A of the Extradition Act 2003 inserted by section 157(2) of the Anti-Social Behaviour, Crime and Policing Act 2014 applies to an extradition decision made on or after 21 July 2014. These appeals have been listed together at the direction of Master Gidden because they raise for the first time in this court common issues as to the compatibility of extradition with Convention rights and the proportionality of extradition that arise under section 21A(1)(a) and (b) of the Act. While the submissions made on the appellants' behalf largely concerned the correct application of section 21A(1)(b) [the new freestanding proportionality test], the appellants also contend that their extradition is incompatible with their Convention rights under Article 8 ECHR. I shall describe the legislative history of section 21A later in this judgment commencing at paragraph 17. I have been much assisted by the researches and submissions of counsel on both sides.
The judges' findings
Janusz Miraszewski
Janusz Miraszewski was born on 7 October 1963 in Chelmno, Poland and is now aged 51 years. He is alleged to have committed burglaries in Poland contrary to article 279, paragraph 1 and article 64, paragraph 2 of the Penal Code. The allegation is that on the night of 7 – 8 December 2004, shortly after being released from a sentence of 3 years and 9 months imprisonment, with another he broke into five sheds situated on allotments in Chelmno and stole a quantity of property: a guitar, camp bed, lawnmower, cabbage shredding machine, radio, two aluminium freezers, two knives, electric samovar, sink and battery. The appellant was interviewed on 9 and 15 December 2004. He stated in evidence before District Judge Michael Snow that he had admitted his guilt to the police during interview. He was instructed to notify the police of any change in residence for longer than seven days. The appellant left Poland in March 2005 in breach of his obligations under Article 75. On 1 April 2005 an order was made for the appellant's preliminary detention in Poland but no European Arrest Warrant ("EAW") was then sought because there was an error in the order. The error was not corrected until 31 August 2012. A fresh order for preliminary detention was made on 13 September 2012. The EAW was issued on 12 March 2013. It was certified by the National Crime Agency ("NCA") on 24 April 2014. The appellant was arrested on 15 June 2014 and remanded in custody. The order for extradition was made by DJ Snow on 20 August 2014.
As to the appellant's Convention rights under Article 8 (section 21A(1)(a)), the District Judge accepted that the appellant had been in the UK for nine years. There had been "clear culpable delay" by the judicial authority in Poland for a period of seven years before the EAW was issued. Although the appellant claimed that he had returned to Poland in 2007 and said "in a vague way [that he had] been seen by the local police who took no action against him" the judge concluded that the appellant can have gained no false sense of security. The judge found that the appellant had taken no active steps to clarify whether he was still wanted by the police because he knew that he was being sought for the purposes of prosecution. The appellant's connections with the UK were "incredibly thin". He was an alcoholic living in a hostel before his remand and had resorted to begging.
As to the proportionality of a decision to extradite under section 21A(1)(b), the District Judge expressed difficulty in assessing the seriousness of the charges. The appellant acted jointly with another and damage was caused. He committed the offence during the currency of his release on probation from prison and within three months of his release. The judge concluded that in England and Wales the appellant could well face a sentence of imprisonment. The maximum penalty in Poland was 10 years imprisonment. There was no evidence to suggest that Poland would take less coercive measures than extradition.
The District Judge found that the appellant's surrender was compatible with his Convention rights and proportionate for the purpose of section 21A.
Lucasz Kanigowski
Lukasz Kanigowski was born on 20 June 1986 in Torun, Poland and is now aged 28 years. He is alleged to have committed two offences of attempted burglary and one offence of burglary, contrary to Article 279, paragraph 1 and Article 13(1), paragraph 1 of the Penal Code. It is alleged that in October or November 2006 acting with others he attempted to break into "bower no. 10" belonging to Marek Braszkiewicz; that in November he attempted with others to break into "bower no. 9" owned by Andrzej Smolinski; that on 16 or 17 November 2006 with others he gained entry to premises belonging to Franciszek Kobialka by forcing a window and stole property to the value of PLN 1,200. On 4 June 2007 a warrant was issued in Poland for the appellant's arrest. The EAW (1) was issued on 4 May 2011 and the warrant was certified on 18 December 2012. On 20 February 2013 the appellant was arrested in the UK.
The appellant is also wanted for conviction matters (EAW (2)). On 7 April 2006 the appellant stood convicted of three offences, committed on 3 September 2005 and 20 August 2005, of stealing with others handbags and their contents, including jewellery, mobile phones, credit cards and cash, from restaurants where the victims were dining, contrary to Article 278, paragraphs 1 and 5, and Article 11, paragraph 1 of the Penal Code. The value of the property stolen was, in the first case, PLN 315, in the second case, PLN 5,480 and, in the third case, PLN 11,140. The appellant was sentenced to 10 months imprisonment suspended for 4 years.
On 9 July 2007 the appellant stood convicted of an offence contrary to Article 288 paragraph 2 of the Penal Code, committed on 18 March 2006, of damaging the entrance door, a window pane and a glow lamp at the Complex of Vocational Schools No. 2 in Torun. He was sentenced to a term of 179 days imprisonment.
A conviction EAW (2) was issued by the requesting state on 23 March 2011. The warrant was certified on 3 December 2013 and the warrant was executed on the same day.
The Chief Magistrate, District Judge Howard Riddle, found that the suspended sentence was activated in April 2007. On 9 July 2007 the appellant's sentences were amalgamated and he was ordered to serve 179 days imprisonment. There had been a delay in the issue of both EAWs. The appellant was detained for the theft offences on 4 September 2005. On 19 June 2006 the appellant was informed by his probation officer of his obligations under the suspended sentence to keep in touch and to appear at court when required. He last saw his probation officer on 1 December 2006. On 12 December 2006 the appellant was interviewed as a suspect about the accusation offences. However, on about 20 December the appellant left Poland without notifying the authorities of his change of address and arrived in the UK. On 20 April 2007 he failed to appear at the hearing in Torun at which enforcement of the appellant's sentence was suspended pending the issue of a warrant for his arrest. Not until September 2008 was the warrant drawn up. In August 2010 the police informed the court that the appellant was in the UK. A request to issue a EAW was made on 9 February 2011.
The EAW (2) theft offences were committed when the appellant was aged 19 years and the alleged EAW (1) burglary offences when he was aged 20 years. He had been in the UK for 8 years. He lived in Oldham, worked shifts at a bakery in Manchester and paid child maintenance for his son, Oliver, aged 5, to his ex-partner who lived with Oliver in Barnsley. The judge accepted that he saw Oliver every other weekend. The appellant's mother worked as a carer. His father suffered an injury to his heel in November 2012 and the appellant provided him with support and care. The judge concluded that were the appellant temporarily prevented from continuing his weekly visits with Oliver this would be a hardship. However, the dependence of the appellant's father on his son had been exaggerated. The father was able to walk with a stick and arrangements for transport and an interpreter were made when necessary. The father received assistance from friends and other members of his family that, in the judge's view, had been deliberately underplayed in the evidence. Again, the appellant's absence would be a...
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