Malawski v Circuit Court in Lodz (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 30 June 2022 |
| Neutral Citation | [2022] EWHC 1926 (Admin) |
| Docket Number | Nos. CO/3775/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1926 (Admin)
Mr Justice Linden
Nos. CO/3775/2019
CO/1136/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr M. Haggar (instructed by Lloyds PR Solicitors) appeared on behalf of the Appellant.
Ms R. Hill (instructed by the Crown Prosecution Service, Extradition Unit) appeared on behalf of the Respondent.
Introduction.
There are two appeals before me against orders for the extradition of Mr Malawski arising out of two different conviction warrants.
The first appeal, CO/2775/2019, is against a decision of District Judge Robinson, dated 13 September 2019. Permission was granted by Steyn J on 12 March 2020, after a renewed oral application. The second, CO/1136/2022, is against a decision of District Judge McGarva, dated 24 March 2022. On 11 March 2022 Choudhury J directed, in advance of the District Judge's decision, that any appeal from it should be listed with the first appeal as part of a rolled-up hearing.
The single ground in both appeals is that the extradition of Mr Malawski would be disproportionate and therefore contrary to Article 8 of the European Convention on Human Rights. The decisions of the District Judges were therefore wrong.
In broad summary, Mr Haggar, for Mr Malawski, relies on various features of the case as undermining the public interest in his extradition, and on family ties which he has in this country with his partner, Ms Weronika Krasucka, and their child, Flower, who is now aged three. As part of his case on family ties, Mr Haggar relies on evidence of social workers who have had dealings with the family including a report prepared by Ms Katarzyna Ofman, pursuant to section 7 of the Children Act 1989, which is dated 25 October 2021. He also relies on a psychological report dated 15 August 2021, which was prepared by a Dr Lynne Jackson, who is a Chartered Psychologist.
The Arrest Warrants.
The first warrant, which was the subject of the decision of District Judge Robinson, is a European Arrest Warrant, which was issued on 24 April 2019, and certified by the National Crime Agency on 31 July 2019. It relates to an offence of conspiracy to defraud which was committed on or before 4 August 2009. In summary, using forged documents, the victim was led to believe that he was buying shares in a power plant when, in fact, the conspirators did not own the shares. He lost the equivalent of £11,273 as a result. Mr Malawski was sentenced to two years' imprisonment, suspended for five years on conditions which included supervision by a probation officer, that he notify all changes of address, and that he pay compensation to the victim equivalent to a third of the sum which the victim had lost. The sentence was activated after Mr Malawski failed to do so and in the context of his failure to keep in regular contact with his probation officer.
The second warrant was an arrest warrant which was issued on 8 April 2021 and certified on 20 May 2021. This related to the following five offences:
“(i) Between May and September 2009, the RP together with others operated as a criminal organisation with the aim of trafficking drugs, ‘mainly amphetamine and so-called ecstasy’.
(ii) Between May and September 2009, acting together with others, participated in the trafficking of 1500g amphetamine and 600 tablets of MDMA as well as 10 LSD stamps, with a total value of PLN 17, 300. He completed multiple sales in respect of these substances on multiple occasions.
(iii) Between September to October 2009, he participated in the trafficking of a total of no less than 100g cannabis with a value of £1600.
(iv) Between January to February 2009, he participated in the trafficking of no less than 200g of amphetamine with a value of PLN 2000. He completed multiple transactions on multiple occasions.
(v) Between mid-July 2004 to October 2004, acting together with others, participated in the trafficking of no less than 210g cannabis, 20g of hashish, 150g amphetamine and 300 ecstasy tablets with a value of PLN 7930, which he supplied to others.”
The sentence was three years and three months imprisonment suspended for six years on conditions which included that Mr Malawski pay a fine, forfeit the financial benefit which he had derived from his criminal activity, notify all changes of address, and be supervised by the Probation Service. He paid the fine but the sentence was later activated because he did not repay the criminal proceeds, again in the context of his failing to keep in regular contact with his probation officer.
The total term of imprisonment to be served on the two warrants is therefore five years and three months.
Legal Framework.
There was agreement between the parties as to the approach which I should take to the appeals in terms of exercising my jurisdiction, and the principles which I should apply to arguments under Article 8 of the European Convention on Human Rights in this context.
As to my approach, the appeals are brought under section 26 of the Extradition Act 2003. I have reminded myself that section 27(3) of the 2003 Act requires that I should only allow an appeal if the District Judge ought to have decided a question before them differently and, if they had decided the question in the way that they ought to have done, they would have been required to order the discharge of the requested person. I have also reminded myself of paragraphs 19 to 24 of the judgment of Lord Thomas, Lord Chief Justice, in Polish Judicial Authority v Celinski & Ors [2015] EWHC 1274 (Admin). At paragraph 24 Lord Thomas said this:
“The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong, applying what Lord Neuberger said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”
Lord Neuberger had said the following in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 at paragraphs 93 to 94:
“93 There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).
94 As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal.”
I was also reminded at paragraphs 25 to 26 of the judgment of Lord Burnett, Lord Chief Justice, in Love v The Government of the United States of America [2018] EWHC 172 (Admin), including the following at paragraph 26:
“The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so...
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