Krzyzowski v Circuit Court in Gliwice, Poland

JurisdictionEngland & Wales
JudgeLord Justice Longmore,Mr Justice Mitting
Judgment Date23 November 2007
Neutral Citation[2007] EWHC 2754 (Admin)
Date23 November 2007
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/8484/2007

[2007] EWHC 2754 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before:

The Right Honourable Lord Justice Longmore and

the Honourable Mr Justice Mitting

Case No: CO/8484/2007

Between
Jan Krzyzowski
Appellant
and
The Circuit Court in Gliwice, Poland
Respondent

Ms Rachel Scott (instructed by Hallinan Blackburn Gittings & Nott) for the Claimant

Ms Charlotte Powell (instructed by Crown Prosecution Service) for the Defendant

Hearing dates: 15 th November 2007

Judgement

Lord Justice Longmore

Lord Justice Longmore:

Introduction

1

The Gliwice Circuit Court in Poland (a category 1 territory for the purpose of the Extradition Act 2003) has requested the surrender of Mr Jan Krzyzowski ("the Appellant") in respect of 13 burglaries allegedly committed between 1998 and 1999. The Appellant left Poland in October 1999 and has since lived in the United Kingdom. He relies on section 14 of the 2003 Act ("the Act") which provides:—

"A person's extradition to a category 1 territory is barred by reasons of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have

a) committed the extradition offence (where he is accused of its commission …."

2

In relation to the very similarly worded provision of 8(3)(b) of the Fugitive Offenders Act 1967 Lord Diplock said this in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 782H – 783B;—

""Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

3

The main questions debated on this appeal are (1) whether the District Judge was right to have found that the appellant deliberately fled the country "in knowledge of [the] outstanding matters and to avoid the prosecution" as the judge put it (2) whether in the light of Lord Diplock's observations in Kakis that is the end of the inquiry, and (3) if not whether it would now be unjust or oppressive to return him to Poland.

The Facts

4

A European Arrest Warrant ("the warrant") was issued by the Circuit Court in Gliwice ("the Respondent") on 9 th January 2007. It was certified by the Serious Organised Crime Agency, ("the Agency") a designated authority for the purposes of Part 1 of the Act, on 1 st May 2007.

5

The warrant accused the Appellant of 16 offences and sought his surrender for the purpose of a prosecution. Offences 1–12 inclusive were burglaries, said to have been carried out between June 1998 and March 1999. In respect of the 12 th offence the Appellant was said to have been caught red-handed. Offence 13 related to the use of a false driving licence, said to have taken place in 1997. Offence 14 was a burglary dating back to August 1999. Offence 15 was an allegation that in August 1999 the Appellant falsely reported a burglary to the police. Offence 16 was described as a fraud, carried out between September and 15 th October 1999.

6

The warrant provided that the maximum sentence for an offence of burglary, contrary to article 279 paragraph 1 of the Polish Penal Code, was 10 years' imprisonment. No maximum sentence was indicated in respect of offences 13, 15 or 16.

7

In response to a letter from the Agency, Judge Kolodziejczyk of the Circuit Court in Gliwice said

1) that on 24 th June 1999 an indictment against the Appellant had been brought before the District Court in Rybnik;

2) that according to Art. 300 of Polish Penal Code before the first hearing, the Appellant was informed of his rights and duties in each case, which he certified with his signature;

3) that he was also informed about "his absolute duty to attend to each summons of procedure authority under pain of arrest and compulsory bringing and a duty of informing about each change of address and indicating an addressee of delivery in the country in case of sojourn abroad, under pain of delivering letters on a hitherto address and regarding them as delivered with all consequences";

4) that in October 2001 the Police got information delivered by the wife of the accused that he was abroad;

5) that the wife did not give any contact address for the Appellant and did not undertake to convey him information from Court;

6) that on 13 th November 2001 the proceedings were stayed, interim arrest was applied and a search with a wanted notice was ordered;

7) that the Police did not regard as reliable the information that the Appellant was abroad but that in December 2006 the prosecutor required the Circuit Court to issue the European Arrest Warrant and they notified Interpol.

8

The Agency certified the warrant in May 2007 and the Appellant was arrested at his home address in Hounslow on 13 th June 2007 by officers of the Extradition Squad of the Metropolitan Police. He was detained in custody and produced at the City of Westminster Magistrates' Court the following day for an initial hearing pursuant to sections 7 and 8 of the 2003 Act.

9

At the hearing, no issue was raised on behalf of the Appellant as to his identity, service of the warrant, or production at court as soon as practicable. The extradition hearing was fixed for 28 th August 2007 and subsequently adjourned to 10 th September 2007, in order to afford the Respondent time to furnish the Court with further information on certain aspects of the warrant.

10

On 10 th September 2007, the extradition hearing commenced before District Judge Nicholas Evans. The Respondent's representatives applied for a further adjournment as no information had yet been received as to the applicable maximum penalties for offences 13, 15 and 16. That application was granted but the District Judge indicated that he would proceed to determine the question of whether the 13 burglaries constituted extradition offences, and to hear the Appellant's evidence in support of the passage of time submissions being advanced on his behalf. The District Judge then determined that offences 1–12 inclusive were extradition offences.

11

The Appellant then gave evidence to the following effect:—

1) After his release from prison on licence in 1995, the Appellant refused twice to pay protection money to the local police in respect of first a car hire business and then a bar which he owned. As a result he was fearful of a false accusation by them that he was in breach of his licence and liable to be returned to prison;

2) In March 1999, he approached a bar where he had observed signs of people trying to break in, and was arrested by police at the scene;

3) He was then taken to the police station and questioned about not only that burglary but a number of others;

4) He denied responsibility for all offences in interview, but no written records were made;

5) The police released him the following day and explained that if they proposed to proceed further with the matter, they would write to him. He never received any such communication;

6) He saw the interviewing officers frequently as they would drink in his bar. No further mention was ever made of the burglaries;

7) He continued living at the address stated on the warrant until he left Poland. His wife still lived at that address;

8) He never had to attend court in relation to the allegations contained within the warrant and had never signed any court documents;

9) He left Poland for the United Kingdom on 18 th October 1999, travelling under his own name. The reasons for his departure were those set out at paragraph (1) above;

10) He accepted that there is a duty upon Polish citizens to inform the authorities of a change in their domestic address, but claimed that there was no such duty if they leave the country. Accordingly, he did not inform the Polish authorities that he was moving to the UK;

11) In 2001, police attended his home address in Poland and asked for the Appellant. His wife told them that he was abroad. They did not ask her for his address and did not state the reason for their visit. She told him about their visit, which he assumed was to do with their previous requests for protection money;

12) His wife had visited him in England but apparently did not mention his whereabouts to police in Poland.

12

Following the conclusion of the Appellant's evidence, the hearing was adjourned part-heard on 25 th September.

13

On 25 th September, no information had been received by the Respondent's representatives as to the maximum penalties in respect of offences 13, 15 and 16. The District Judge accordingly held that he was not satisfied these were extradition offences and ordered the Appellant's discharge in respect of those offences only. In respect of offence 14, as this breached the same provision of the Polish Penal Code as the other 12 burglaries, a finding was made that this was an extradition offence.

1...

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