Katarzyna Szyjewska v Polish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 03 March 2022 |
| Neutral Citation | [2022] EWHC 645 (Admin) |
| Docket Number | No. CO/862/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 645 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Kerr
No. CO/862/2022
Mr Martin Henley (instructed by Montague Solicitors) appeared for the Appellant.
Ms Amanda Bostock (instructed by Crown Prosecution Service) for the Respondent.
Introduction
The appellant, Ms Szyjewska, appeals with leave of Thornton J against the decision of Senior District Judge Goldspring (“the SDJ”) given on 3 March 2021 to extradite her to Poland to serve a sentence of imprisonment totalling seven and a half years, less about 18 months spent remanded in custody in this country since 9 September 2019.
The respondent judicial authority seeks the return of Ms Szyjewska (“the requested person” or “RP”) on the basis of three conviction warrants. The matter has a long history. The RP was convicted of 14 offences in all, committed from 2005 to 2011. The offences mainly involved dishonesty: fraud, theft, forgery and, in one case, extortion and threats of violence.
The first of the three warrants was issued by Poland following discharge of the RP in 2017 on an earlier accusation warrant (issued in 2013) covering some of the offences in the first of the three conviction warrants. District Judge Blake ordered the RP's extradition on the accusation warrant on 14 August 2014. The RP then appealed and later withdrew her appeal.
The RP's appeal was then dismissed and an extension of time for her removal was granted until 14 October 2014. However, she was not removed by that deadline or at all. At the hearing before the SDJ, it was not clear (as he said in his judgment) why she was not removed. The RP was formally discharged on 22 February 2017 under section 42 of the Extradition Act 2003 (“the 2003 Act”).
Permission was initially refused on the papers by Murray J. After some delay, the grounds were amended in October 2021 and Thornton J granted limited permission to advance three grounds in her order made on 17 November 20221. The three remaining grounds are: in absentia trial; abuse of process; and article 8 of the European Convention on Human Rights (“ECHR”).
Facts
The RP was born in 1975. She is married with adult children. Her husband is also in this country. The offences of which she has been convicted in Poland suggest she has had a career that includes involvement in business and finance.
The first of the three warrants with which this appeal is concerned (“EAW 1”) is a conviction warrant, issued on 16 January 2017 and certified by the National Crime Agency (“NCA”) on 23 February 2017. The EAW 1 seeks the RP's return to serve a total sentence of four and a half years' imprisonment arising out of consecutive sentences imposed for four separate groups of convictions for a total of 11 offences:
The first group of convictions arises from proceedings numbered III K 864/06. A custodial sentence of two years was imposed for:
(1) attempted fraud; a fraudulent employment certificate submitted in order to secure a 15,000 PLN bank loan on 28 April 2006;
(2) fraudulently obtaining a bank loan with a false employment certificate to the value 3,703 PLN on 26 April 2006;
(3) attempted fraud: a fraudulent employment certificate was submitted in order to secure a 8,000 PLN bank loan on 13 March 2006; and
(4) fraudulently obtaining a mobile phone contract with a false employment certificate, valued at 3,169 PLN on 5 October 2005.
The second set of proceedings covered by EAW 1 bore the case reference number III K 898/07. A custodial sentence of one year was imposed for:
(5) fraudulently obtaining a bank loan to finance the purchase of a car with a loss 84,457 PLN in June 2005.
The next part of EAW 1 arose from the proceedings with the case reference number II K 1057/11. In those proceedings, a custodial sentence of one year was imposed on the RP for:
(6) theft of a company car: failing to return the car after a lease contract (signed on 3 December 2009) had been terminated. The value was 33,500 PLN. The period of the offending was 1 July 2010 to 12 April 2011;
(7) theft of a company car: failing to return a car after a lease contract (signed on 22 December 2009) had been terminated; with a value of 100,000 PLN; from 12 July 2010 to 18 March 2011.
Also in EAW 1, in the proceedings with the case number II K 535/11, a custodial sentence of six months was passed for the following offences:
(8) theft of pension funds from the company of which the RP was vice president, to the value 15,607 PLN. The monies were paid by employees under a compulsory pension scheme and she failed to pay the contributions to the National Insurance Agency in the period from October 2009 up to May 2010;
(9) failure to pay national insurance contributions for three employees when under a duty to do so as company vice president, and failing to notify the National Insurance Agency of a period of sick leave for one employee in the period from October 2009 up to May 2010;
(10) theft of pension funds from the company where the RP was vice president to the value of 11,975 PLN. The monies were paid by employees under a compulsory scheme and she failed to pay the contributions to the National Insurance Agency. That was during the period April to August 2010; and
(11) failing to pay national insurance contributions for seven employees when under a duty to do so as company vice president from April 2010 to August 2010.
The next of the three warrants relevant in this appeal I will call “EAW 2”. It is a conviction warrant issued by the Regional Court of Piotrkow Trybunalski on 2 July 2018 and certified by the NCA on 9 September 2019.
In the proceedings covered by EAW 2, a sentence of one year's imprisonment was imposed in respect of two offences, with the sentences to be served consecutively to those covered by EAW 1. The offences are as follows:
(12) on 1 October 2009, issuing a false employment certificate in her capacity as proprietor of the Polish Financial Group Sp. z.o.o for one Jolanta Kumor, and then instructing Ms Kumor to obtain loan agreements of 14,440 PLN and 1,800 PLN. Once those funds were obtained, the RP took the funds for herself with no intention to repay them; and
(13) on 1 October 2009, issuing a false employment certificate in her capacity as proprietor of the Polish Financial Group Sp. z.o.o. for Ms Jolanta Kumor, and then instructing Ms Kumor to obtain a loan agreement of 21,052 PLN. Once those funds were obtained, the RP took them for herself with no intention to repay.
The third and final warrant in this appeal I will call “EAW 3”. It is a conviction warrant issued by the District Court in Bielsko-Biala on 23 October 2018 and certified by the NCA on 9 September 2019 (also the date of the RP's arrest). It sought the RP's return to serve a sentence of two years' imprisonment, again to be served consecutively to the other sentences I have mentioned.
That two year prison sentence under EAW 3 arises by way of activation of a suspended sentence. That sentence was imposed in respect of a single offence as follows:
(14) on 10 November 2005, giving instructions over the telephone to perpetrators recommending the use of violence and unlawful threats towards the victim in order to force him to repay a debt owed to the RP.
The second warrant, EAW 2, recited that the RP had been summoned to appear at the court for a hearing on 17 April 2017. Notices to collect the summons had twice been left at her address in Poland and she was deemed served. She was, however, in the UK and in email contact with the court. She was aware of the hearing date but did not attend.
Further information was later sought in relation to the hearing in April 2017. That information was sought in October 2019. Among the questions asked were whether the RP was considered to be deliberately absent from a hearing on 17 April 2017. If not, the further question was asked whether she was entitled to a retrial on appeal or review amounting to a retrial, in the terms of what in this country is section 20 of the 2003 Act.
The answers given in response to that request for further information explained that the proceedings had been opened on 10 March 2017. The RP was absent but had been sent an “advice notice” of that hearing. She had a court appointed defence counsel. The court adjourned the hearing until 17 April 2017. However, the RP did not want the court appointed lawyer to represent her. On 31 March 2017 the RP submitted a written request for her defence counsel to be changed.
It is then said that on 7 April 2017 (which may be an error for 17 April 2017; no point is taken in that regard) she requested an adjournment as she had, she said, no appropriate defence counsel. On 7 April 2017 the court appointed a different defence counsel for her, in her absence. It was evident from the correspondence, according to the further information given, that she was aware of the court date and not obliged to attend in person. The court was well aware that the RP was out of the country.
In answer to the question about retrial rights, the judicial authority stated that:
“[t]here is a possibility for the case to be re-examined under Article 521. The Attorney General...
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