Joanna Klazinska v Circuit Court in Lodz, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] EWHC 69 (Admin) |
| Docket Number | Case No: CO/4842/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 69 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: CO/4842/2020
Catherine Brown (instructed by Sonn Macmillan Walker) for the Appellant
Reka Hollos (instructed by CPS) for the Respondent
Hearing date: 26 October 2021
Approved Judgment
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Introduction
This is an appeal under s 26 of the Extradition Act 2003 ( EA 2003) against the order for the Appellant's extradition to Poland made by a district judge on 23 December 2020. The Appellant's extradition is sought pursuant to a European arrest warrant (EAW) that was issued by the Regional Court of Lodz, Poland, on 7 July 2020 and certified by the National Crime Agency on 20 August 2020.
The EAW seeks the extradition of the Appellant to execute a custodial sentence of two years' imprisonment. The sentence was imposed in respect of one offence of fraud committed between 2 September 2004 and 29 October 2004. Box E specifies the underlying conduct: the Appellant collected payment from teachers at different schools in Lodz and Zgierz for textbooks which she had no authority to do and without providing the funds to the Demart publishing house, her employer, resulting in financial loss to the company of PLN 10,360.84. The Framework List has been marked to designate the conduct as ‘swindling’. Following her arrest, the Appellant admitted the offence. She kept the money in lieu of wages she felt that she was owed.
Box F of the EAW states that the Appellant was sentenced to two years' imprisonment suspended for five years with the condition to repay the monies within the five year term.
The Appellant failed to repay the money, and failed to answer court summonses, having left Poland without notifying the authorities, and so her suspended sentence was activated. She first went to Cyprus for a number of years and then came to the UK in November 2015.
The EAW was then issued and she was arrested in the UK on 2 September 2020.
By a letter dated 13 October 2020, the Respondent provided the following further information:
a. The Appellant pleaded guilty to the offence in the EAW and agreed to the sentence proposed by the prosecutor.
b. The judgment of the District Court of Lodz of 11 April 2006 was posted to the address provided by the Appellant.
c. Prior to the decision of 16 June 2011 to activate the sentence, the Appellant had been summoned on multiple occasions to carry out her duty.
d. The Appellant was summonsed to attend prison on 11 September 2011 but did not appear. She was unlawfully at large from this date.
e. On 9 November 2011, the Judicial Authority learned that the Appellant had left Poland and had not been resident at the address she provided to the court for several months.
f. On 28 November 2011, the District Court for Lodz issued an arrest warrant for the Appellant.
g. In February 2020, the Police established that the Appellant was living in the UK and an EAW was issued.
h. Throughout the duration of the criminal proceedings and the period of her suspended sentence, the Appellant was under an obligation to appear on every summons issued for her attendance and to notify the court of every change of address lasting for more than seven days.
i. The Appellant was advised by her probation officer of the risks if she failed to comply with the requirements of her suspended sentence.
j. The Judicial Authority considers the Appellant to be a fugitive. She did not redress the loss caused to the victims as required by the conditions of her sentence; nor did she notify the court or her probation officer of her change of address including her departure from Poland as she as required to do.
k. The Appellant was not legally represented during the criminal proceedings.
The matter was heard by District Judge Rimmer in November 2020. The Appellant was unrepresented. In a written judgement handed down on 23 December 2020 the Appellant's extradition was ordered.
On 21 May 2021 Sir Ross Cranston sitting as a High Court judge granted the Appellant permission to appeal on the ground that extradition would be incompatible with her rights under Article 8 of the European Convention on Human Rights (the ECHR). That was Ground 2. Ground 1 was that reforms to the Polish judiciary in recent years have undermined the rule of law to the extent that Polish EAWs cannot now be regarded as having been issued by judicial authorities as required by s 2 of the Extradition Act 2003 and the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states of the European Union (the EAW Framework Decision).
This issue was fully considered, and rejected, by the Divisional Court in Wozniak v The Circuit Court in Gniezno, Poland [2021] EWHC 2557 (Admin) and nothing now remains of that ground of appeal in the Appellant's case (which was stayed pending the decision in Wozniak), the Court having refused a certificate for an appeal to the Supreme Court under s 32(4) of the EA 2003. The Appellant's solicitor confirmed after the hearing that Ground 1 was no longer being pursued.
In relation to Ground 2, Ms Brown argued on the basis of evidence, much of which was not before the district judge, that he erred in finding that the Appellant's extradition would not be incompatible with her Article 8 rights. The evidence focusses on the Appellant's husband's health and also her own health, although other matters were also touched upon.
The district judge's judgment
The district judge's factual findings are set out at [55] of the judgment. He found, in summary, that: (a) the Appellant was 53 and had arrived in the UK in 2015 to be with her daughter; (b) she is unwell, with high blood pressure, as is her husband with a history of high blood pressure and heart attack; (c) documents sent in April 2016 in Poland regarding her sentence were likely received by her husband or son; (d) he did not find that the Appellant was credible in her denial of knowledge of the court date for sentencing; if she did not know it was through lack of enquiry or proper diligence, and she was therefore voluntarily absent; (e) the Appellant did not have a trial but consented to the sentence; (f) she partly engaged with the sentence and her probation officer and repaid some of the money, but most of it remained unpaid; (g) she did not maintain contact with probation for five years as she was required to do; (h) the Appellant knew she had to advise the Polish authorities of her change of address; (i) the Appellant was a fugitive because she left Poland in the knowledge she had not complied with the conditions of her sentence; (j) the Appellant had given dishonest evidence when she said her probation officer had encouraged her to leave Poland and only pay part of the compensation; (k) she may not have been aware of the activation of her sentence but she knew that could be the consequence of non-compliance with conditions; (l) she had been unlawfully at large since 11 September 2011, the date she was summonsed to prison.
At [56]–[58] the judge expanded upon his finding that the Appellant was fugitive, by reference to the relevant case law, including Wisniewski and others v Regional Court of Wroclaw, Poland [2016] 1 WLR 3750 and Veronica De Zorzi v Attorney General Appeal Court of Paris (France) [2019] EWHC 2062 (Admin). He concluded to the criminal standard that she had knowingly left Poland during the probationary part of her suspended sentence without informing the authorities and in breach of the obligations imposed upon her, of which she was aware.
The judge addressed the Article 8 balancing exercise at [67] to [75]. He reminded himself of the principles arising from the leading cases on Article 8 (considered below). He identified the factors in favour of and against extradition [70] and proceeded to carry out the requisite balancing exercise ([71]–[74]).
Among the factors identified by the judge in favour of extradition were that: (a) the amount involved in the fraud was not trivial and schools were taken advantage of; (b) the period to be served of two years is not insubstantial; (c) any delay was caused by the Appellant being a fugitive; (d) there is a public interest that those convicted of crimes should serve there sentence, and there is a ‘constant and weighty’ public interest in extradition treaties being honoured; (e) the Appellant is a fugitive.
The three factors identified by the judge as weighing against extradition were that: (a) the offending took place in 2004, over 16 years ago at the relevant time, and so were ‘moderately old’; (b) the Appellant lived openly, first in Cyprus and then in the UK for over five years, during which time she worked and contributed to the economy; (c) she has a husband who is in poor health who is likely to feel an emotional and financial impact if she were to be extradited.
At [72] the judge said that whilst the consequences of extradition for the Appellant might be serious, they would not be exceptionally severe. Family members including her daughter and son could assist her husband. The Appellant's husband could find work or seek benefits without her; he had managed without her whilst she was in Cyprus. No medical evidence had been supplied about the Appellant or her husband and there was no reason to think that the Polish authorities would not be able to provide proper care for her. At [73] the judge referred to the possibility of proceedings in Poland and whether they might result in clemency and the Appellant being...
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