Maciej Goluchowski v District Court in Elblag Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 04 February 2015 |
| Neutral Citation | [2015] EWHC 332 (Admin) |
| Docket Number | CO/5487/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2015 |
[2015] EWHC 332 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/5487/2014
Mr J Stansfeld (instructed by Lawrence & Co) appeared on behalf of the Appellant
Ms S Iveson (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
Mr Stansfeld, for the appellant, makes two applications in connection with the appeal. The first is to admit recently obtained medical evidence about the condition of the appellant's mother. The second is that the hearing of the appeal should be adjourned so that the issues briefly canvassed in that evidence can be more fully explored.
It is necessary to say a little about the background. The extradition of the appellant is sought on a conviction warrant issued in 2010. The appellant and his mother arrived in the United Kingdom in 2010 and she, and until his arrest on 1 August 2010 he, lived in Leeds but the evidence suggests that they lived at separate addresses. In the GP's report of 21 December 2014, which despite its date was not it seems put before the District Judge, her address is given as 57˜Buslingthorpe Lane, Leeds LS7 3AH. In the letter responding to questions asked by the appellant's solicitor dated today, 4 February, her address is given as Flat 6, 1 Oak Road, Halton, Leeds LS7 3JU. The appellant, according to the statement of the arresting police officer, was arrested at neither address but at 41 Sholebroke Place, Chapeltown, Leeds, the police having originally attended at 43 Sholebroke Place to arrest him. The warrant seeks the extradition of the appellant to serve sentences imposed for drug possession and trafficking. On arrest, cannabis was found in the house at which he was arrested and there was a strong scent of cannabis in the premises.
Before the District Judge an Article 8 case was briefly advanced. It is not entirely clear what it was. The appellant's proof of evidence referred in paragraph 4 to his partner, Ewa Malasinska, with whom he said he had been together for 3 years. It also referred to his mother's health, which he briefly describes as that she was an alcoholic since he was 3, has artificial veins and had surgery because she had had two heart attacks. He spoke to his mother on the telephone and she cried every day because of his situation.
There is an undated and unsigned statement from his mother, which it seems was not before the District Judge, in which she says that he has lived with her since they arrived in the United Kingdom 6 years ago. She says that he did shopping for her and helped her with the cooking and the washing and supported her financially.
It was clear when the District Judge heard this case that the mother's health was poor and the fact that she was due to undergo an operation for amputations in December 2014 which was eventually cancelled suggest that the severity of her condition must then have been known. Her General Practitioner's answers to the questions asked by the appellant's solicitors today suggest that following amputation, which make take place within the next 6 months, she will require rehabilitation of 6 months and that her life expectancy is in the order of 3 years.
On the basis of that material Mr Stansfeld submits that the appellant has a viable ground upon which to resist extradition because of his mother's condition and because of the care which, Mr Stansfeld asserts, he has provided to her.
The evidence so far obtained does not begin to satisfy me that he lived with his mother. I also doubt, given the circumstances in which he was arrested, that he provided anything other than occasional assistance to her. My doubts are by the by. Plainly, on any view, if this argument was going to be advanced, it had to be (and if this argument is now going to be advanced, it would have to be) subject to careful examination, including cross-examination by the requesting authority.
I am entitled to ask, and do, why this material has only been produced at the very last minute. The hearing took place on 23 October 2013. The District Judge's judgment was delivered on 21 November 2014. The state of the appellant's mother's health was, I am satisfied, known, and known in detail, at the time of the hearing before the District Judge. Although this is an Article 8 case, and although the rights to family and private life of the appellant's mother are plainly engaged, it is less than clear that his own rights to family and private life are engaged. If so, they can only be engaged indirectly by reference to the help, if any, which he provided to his mother.
This has all the hallmarks of being a desperate and last-ditch attempt to avoid extradition. Although there is an extended discretion in new evidence cases when Convention rights are engaged, nevertheless an appellant relying on them for the first time on appeal has to demonstrate why the evidence was not put in at first instance, what changes have occurred that make it more compelling now than then and that it would be just to admit the evidence.
None of those tests are satisfied here. I decline to admit the evidence. I decline to adjourn the case for further evidence to be obtained.
By a conviction European Arrest Warrant issued by the Vice President of the District Court of Elbag on 13 August 2010 the extradition of the appellant is sought to serve sentences of 10 months and 2 years respectively imposed on 22 October 2007 and 8 April 2008 at the Regional Court at Elbag for possession and distribution of psychotropic substances such as amphetamine on 7 June 2007 and 7 December 2007.
The European Arrest Warrant was certified by the Serious and Organised Crime Agency on 29 October 2010 and the appellant was arrested on 1 August 2014. His extradition was ordered by District Judge Purdy after a contested hearing on 21 November 2014. Two grounds were argued before the District Judge. (1), the European Arrest Warrant did not comply with section 2(6)(c) of the Extradition Act 2003; (2), Article 8 grounds. A notice of appeal was filed in time on 27 November 2014. Only the first ground is now pursued.
Section 2 of the 2003 Act was enacted to give effect to Article 8 of the Council Framework Decision of 13 June 2002, 2002/584/JHA. But, as has long been recognised, it does not do so precisely.
Article 8(1)(c) requires that a European Arrest Warrant should contain information including "evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2".
For presents purposes I am only concerned with Article 1.1, which requires that a European Arrest Warrant be a judicial decision issued with a view to the arrest and surrender by a Member State of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence.
It is common ground that Article 8(1)(c) sets out alternatives: there must be evidence of an enforceable judgment or of an arrest warrant or of any other enforceable judicial decision having the same effect; and of course it must be for the purpose of either criminal prosecution or executing a custodial sentence.
As transposed into the law of England and Wales in section 2 of the 2003 Act, the effect is not precisely the same. Section 2(3) and (4) deal with accusation warrants. Section 2(4)(b) requires that an accusation warrant must contain "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence"...
To continue reading
Request your trial
-
Goluchowski and Sas v District Court and Circuit Court in Poland
...36 before Lord Neuberger, President Lord Mance Lord Wilson Lord Hughes Lord Toulson THE SUPREME COURT Trinity Term On appeals from: [2015] EWHC 332 (Admin) and [2015] EWHC 648 (Admin) Appellant (Goluchowski) Clare Montgomery QC James Stansfeld (Instructed by Lawrence & Co Appellant (Sas) ......
-
Arkadiusz Straszewski v District Court in Bydogszcz, Poland
...Mariusz Kaminski v Judicial Authority in Poland [2012] EWHC 280 (Admin) and the decision of Mitting J in Goluchowski v Poland [2015] EWHC 332 (Admin). At paragraph 37 the District Judge stated: "37. Having considered the cases referred to above I must follow the decision of Mitting J in Gol......
-
Damian Gajsler v Judicial Authority in Poland
...is authority in this court which is contrary to her contention that the arrest warrant must contain such particulars. In Goluchowski v District Court in Elblag, Poland [2015] EWHC 332 (Admin), Mitting J concluded that section 2(6)(c) did not require information in the form of particulars of......