Krysztof Blazsak v Regional Court in Wroclaw, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 14 December 2016 |
| Neutral Citation | [2016] EWHC 2412 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 December 2016 |
| Docket Number | CO/2509/2016 |
[2016] EWHC 2412 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Hickinbottom
CO/2509/2016
Mr M Hawkes (instructed by Steinberg Reid) appeared on behalf of the Appellant
Ms A Bostock (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Inyundo on 10 May 2016 to order the Appellant's extradition to Poland. Permission to appeal was initially refused by Lang J on the papers on 29 July, but granted by Mitting J at an oral hearing on 6 September 2016. Poland is of course a category 1 territory, and so Part 1 of the Extradition Act 2003 ("the 2003 Act") applies.
The basis of the application for the Appellant's extradition is a conviction European Arrest Warrant issued by the Regional Court in Wroclaw on 31 March 2015 and certified by the National Crime Agency on 16 July 2015 ("EAW1"). It related to eleven offences of robbery, burglary, attempted burglary and theft, all committed between August 2000 (when the Appellant was 16) and April 2002 (when he was 18). The amount involved in the burglaries and the thefts ranged from PLN 250 to PLN 7,900 (i.e. at contemporaneous conversion rate, from £40 to £1,300).
The EAW refers to "a cumulative sentence of 23 October 2006… of 3 years and 6 months". The Appellant's evidence is that he sought a sentencing hearing at which all of his offending could be considered, and an aggregate sentence imposed. The EAW indicates that the Appellant personally collected notification of that hearing on 2 October 2016; and, although he did not personally attend, he was represented at the hearing by defence counsel.
The EAW states that the end of the sentence, if all of it had been served, would have been 11 December 2011. However, the Appellant was conditionally released on 4 December 2009, when the balance of the sentence of two years and seven days was effectively suspended. There were various conditions imposed upon his release, including that he should not commit another offence, but also a requirement that he keep in touch with his probation officer and notify him of any change of address. His conditional release on probation was revoked on 19 January 2011, it is said, "since during the probation period the concerned person was sentenced again to unconditional penalty of deprivation of liberty for an intentional offence."
That appears to be a reference to a further conviction for domestic burglary committed on 7 May 2010 (i.e. about six months after his conditional release from custody), for which the Appellant was sentenced to ten months' immediate imprisonment on 6 December 2010, at a hearing at which he was present. It seems from the evidence that, although not suspended, that sentence was deferred, at least to an extent; because, as I shall shortly describe, the Appellant came to the UK after it had been imposed. However, that sentence is the subject of a separate EAW ("EAW 2"), which states that the Appellant was present at the trial and sentenced for that offence, and that he is a now a fugitive in respect of that matter. Therefore, whatever the deferral period might have been, it appears to have elapsed.
For completion, I should say that there is a third EAW ("EAW 3"), in relation to another offence of attempted domestic burglary committed in 2002, for which, on 17 July 2016 and again in the Appellant's presence, he was sentenced to two years' imprisonment suspended for five years which was activated on 19 May 2011 as a result of his further offending.
EAW 2 and EAW 3 are not before this court. They remain pending at Westminster Magistrates' Court, with an extradition hearing currently due to take place there on 5 January 2017.
When the Appellant was able, in 2011, he says that he travelled to the United Kingdom to be united with his wife and then three children, who had moved to the UK when he was in custody in Poland. They have since had a fourth child, born in the UK.
Before me, Mr Hawkes for the Appellant relies upon two grounds; namely that the Appellant's extradition would be (i) oppressive for the purposes of the bar to extradition in section 25 of the 2003 Act, and (ii) disproportionate to the consequential adverse impact upon rights of the Appellant and his family under article 8 of the European Convention on Human Rights.
Section 25 of the 2003 Act, under the heading "Physical and mental condition", provides, so far as relevant to this appeal:
"(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.
(3) The judge must —
(a) order the person's discharge, or.
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
Mr Hawkes, rightly, does not suggest that the Appellant's extradition would be "unjust", which depends upon whether circumstances would make fair trial impossible; and this is a conviction warrant. However, he does submit that it would be "oppressive", which is directed to hardship to the requested person resulting from changes in his circumstances that have occurred during the relevant period. The test for oppression in this regard has a high threshold, and will not be easily satisfied. Mere hardship is not enough (see Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 21 at [31]). Mr Hawkes submits that, since the sentence was imposed, the Appellant's circumstances have changed to such an extent that it would be oppressive now to extradite him to serve the balance of his sentence.
Mr Hawkes relies, in particular, upon the Appellant's health. He certainly does not enjoy good health. In 2004, he was the victim of an attack with a baseball bat which caused him serious head injuries, including a fractured skull. He had to undergo an operation to remove a blood clot from his brain. That was, of course, before the relevant sentence.
However, in 2013, he suffered a stroke which has left its lasting mark. As a consequence of it, he has limited strength in the right hand side of his body, has difficulty in moving about, he stutters and is forgetful. Most seriously, submits Mr Hawkes with some force, the Appellant is now epileptic and suffers from regular seizures, sometimes as frequently as on a daily basis, for which he is on chronic medication. That medication, it seems, is not effective in entirely preventing his seizures, which continue to come on without warning at all times of the day and at night. The seizures themselves are a risk to him for obvious reasons. However, shortly after these attacks — but apparently not at other times — the Appellant can become aggressive, as well as anxious. At these times, in particular, he is a risk to others as well as to himself.
His health has further deteriorated since 2014, when he was assaulted again in his own front garden, to the body and head, suffering breaks to his fingers and ribs.
The Appellant's medical condition and resulting disabilities were set out in evidence before the District Judge; but that has now been supplemented by, primarily, a report from Dr Louis Loizou, a consultant neurologist, dated 16 November 2016, which emphasises the Appellant's physical and mental limitations and the measures required to ensure his own safety as well as the safety of...
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