Krzysztof Tyrakowski v Regional Court in Poznan, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 31 October 2017 |
| Neutral Citation | [2017] EWHC 2675 (Admin) |
| Docket Number | Case No: CO/2088/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 October 2017 |
[2017] EWHC 2675 (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/2088/2017
Ms Emilie Pottle (instructed by JD Spicer Zeb) for the Appellant
Ms Hannah Hinton (instructed by CPS) for the Respondent
Hearing dates: 17 th October 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
This is an appeal by the Appellant, Krzysztof Tyrakowski, with the permission of Sir Ross Cranston, sitting as a High Court judge, following a renewed permission hearing, against the decision of District Judge Jabbitt dated 26 April 2017 ordering his extradition to Poland. The Appellant is represented by Ms Pottle and the Respondent Issuing Judicial Authority is represented by Ms Hinton.
The Appellant's extradition is sought in respect of two European arrest warrants ('EAWs') which I will refer to as EAW1 and EAW2. EAW 1 was issued on 30 th July 2012 in respect of a sentence of one year and six months' imprisonment imposed by the District Court in Poznan on 19 May 2008 in case VIII K 608/08. The conduct narrated in Box E was an offence of attempted burglary of some offices on 30 July 2007. It appears from the particulars that the Appellant was caught in the act, in that it is said he was apprehended by security guards whilst trying to break into the offices.
EAW2 was issued on 21 January 2013. It comprises two cases in the District Court in Poznan, namely VI K 411/08 and VI K 1120/03. The first case is an accusation case and the second case is a conviction case. The accusation case comprises allegations of fraud and theft and burglary said to have been committed between May and August 2007. The second case comprises offences of burglary committed in 2000 in which the Appellant broke into, respectively, a photo lab and an audio store. He was sentenced to three years' imprisonment in relation to these offences.
The Appellant was arrested in Dorset on 16 October 2016. The extradition hearing took place at Westminster Magistrates Court on various dates in December 2016, January 2017, and April 2017. Extradition was resisted. In respect of EAW1 the Appellant resisted extradition on the grounds of s 20 of the Extradition Act 2003 (' EA 2003'). He argued that he had not been present for his trial for these offences; that he had not been deliberately absent; and that he would not receive a retrial in Poland. In respect of both warrants he also resisted extradition on the grounds of Article 8 of the European Convention on Human Rights ('the ECHR'). The district judge rejected both submissions.
Before me, Ms Pottle only challenges the judge's findings and conclusions in relation to s 20 in relation to EAW1. Whatever the outcome of this appeal, therefore, the Appellant stands to be extradited on EAW2. She argues that the judge ought not to have concluded that the Appellant had deliberately absented himself from his trial because the EAWs did not prove that he had been summonsed in respect of the trial giving rise to EAW1, and that had the judge so concluded, he would have been bound to conclude that the Respondent had failed to prove beyond reasonable doubt that the Appellant had the re-trial rights that are required by s 20 of the EA 2003, and thus that he should have discharged the Appellant in relation to EAW1.
Chronology
In order to understand the issues arising on this appeal it is necessary to set out the Chronology. I have taken this from the EAWs and from the Further Information ('FI') helpfully sent by the Judicial Authority dated 18 January 2017. I acknowledge that elements of it were dispute by the Appellant in his evidence.
| 8/10/2003 | Appellant sentenced to 3 years on case VI K 1120/03 (the second case on EAW2) |
| 19/12/2003 – 16/06/2004 | Appellant in prison for those offences (see FI) |
| 16/06/2005 – 25/04/2006 | Appellant in prison. Conditionally released on 25/04/2006 having only served part of his sentence (see FI) |
| May 2007 – August 2007 | Appellant commits offences within first case on EAW2 (VI K 411/08) |
| 30/07/2007 | Appellant commits offences on EAW1 (burglary) |
| 30/07/2007 | Appellant told to notify authorities of any change of address |
| 21/08/2007 | Appellant arrested for offences within first case on EAW2. The two cases (ie, VI K 411/08 and VIK 1120/03) are joined |
| 22/08/2007 | Appellant questioned and admits these offences |
| 22/10/2007 | Questioned on EAW1 offences and told again to notify authorities of change of address |
| 16/11/2007 | Questioned for a second time |
| 30/11/2007 | Indictment filed with court for first case on EAW2. |
| 29/1/2008 | Court orders a psychiatric evaluation |
| 6/2/2008 | Copy of decision to order an evaluation served on the Appellant. Subsequently fails to report for evaluation. Date of last personal service on the Appellant. |
| 13/02/2008 | Moves from mother's address (according to mother) |
| 14/03/2008 | Mother advises court that son has moved out |
| 28/04/2008 | Police draw up report that Appellant had moved out for three months and whereabouts are unknown |
| 19/5/2008 | Convicted and sentenced in absentia on EAW1 offences – 1 year 6 months |
| 20/06/2008 | Domestic arrest warrant issued for offences within VI K 411/08 |
| 14/11/2008 | Conditional release revoked because of EAW1 offences |
| 20/11/2008 | Proceedings on VI K 411/08 suspended |
| 05/04/2012 | Polish authorities notified that Appellant was in Ireland |
Hence, by virtue of his alleged offending in the summer of 2007, the Appellant was in breach of the conditions of his early release for the 2003 sentence of which he had only served part, and was therefore liable to serve the remaining part of that sentence. As I shall explain, the Appellant disputed this and said he had served the whole of that sentence.
It was the Respondent's case that in early 2008 the criminal proceedings in relation to EAW1 were ongoing; the Appellant knew they were ongoing; that since his arrest in July 2007 he had been under an obligation to notify the authorities of any change of address; but that in early 2008 he had left Poland and gone to live abroad without giving the appropriate details to the authorities. In other words, the Respondent maintained that he had voluntarily absented himself from the proceedings in Poland.
The Appellant gave evidence before the district judge which the judge dealt with at paragraph 11 and following of his judgment. The Appellant said that he had been told to await the outcome of the investigation and that he would receive correspondence. He was living with his mother at the time. He said that he went to the police station and told them that he was going to England and left his mother's contact details. He said that after he left Poland he made 'ad hoc' enquiries with his mother whether there has been any communication and was told that nothing had been received. He also said, 'however several months after my arrival in the UK by mother did state that the police try to get in touch a few times but after she told them about me being in the UK, nothing further transpired.' He said that he had no knowledge of the conviction recorded in EAW1. He also maintained that he had served the whole of his 2000 sentence.
The judge made findings of fact at paras 35, 36 and 43. They were as follows:
"35. In terms of my findings of fact, it is clear that Mr Tyrakowski is not telling the truth, it is more than coincidental that he was facing recall to prison in relation to the outstanding term in EAW2 and the allegations in EAW1, for which he was subsequently convicted in absentia, together with the outstanding allegations in EAW2 to the latter part of 2007, at the time that he left Poland. He knew that the EAW1 offences would put him in breach of his licence conditions and that it was highly likely that he would be going back to prison. His assertions that he had served the whole sentence in EAW2 [the judge said EAW 1 but he plainly meant EAW2] are contradicted by his admission that he agreed that he was under the supervision of the probation service. The sentence may have been consolidated but I'm sure he knew he had not served the whole term.
36. His assertions that he did not know that there were charges pending is plainly untrue. I am satisfied so that I am sure, that he was questioned about the allegations and he needs a criminal proceedings had begun. I am sure that he attended court on 23 August 2007 [the judge said 2008 but this was plainly a misprint because the FI makes clear he was still in Poland in February 2008] and left Poland as his mother stated in February 2008, to specifically avoid going to prison. I'm further satisfied that he did not tell the Polish police that he was leaving the country. He sought to put himself beyond the reach of the Polish authorities.
…
43. The JA bear the burden of proofing ( sic) that the RP deliberately absented himself from the jurisdiction. I have made it clear in my findings of fact above that the JA had proved beyond reasonable doubt that Mr Tyrakowski left Poland knowing that the allegations were the subject of ongoing criminal proceedings and in doing so, sought to put himself beyond the reach of the Polish authorities, and to avoid participating in the trial process."
Accordingly, the judge found that the Appellant had deliberately absented himself from his trial in May 2008. He therefore held that did not need to consider whether the Appellant would receive a retrial in Poland (see s 20(4)). Accordingly, he rejected the s 20 bar in relation to EAW1. (I should make clear, as the judge noted at para 38 of his judgment, that s 20 was only relied...
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