Oprea v Regional Court in Lublin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 29 June 2022 |
| Neutral Citation | [2022] EWHC 1938 (Admin) |
| Docket Number | No. CO/662/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1938 (Admin)
Mr Justice Lane
No. CO/662/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr G. Hall (instructed by Oracles Solicitors) appeared on behalf of the appellant.
Mr S. Allen (instructed by CPS Extradition Unit) appeared on behalf of the respondent.
This is an appeal against the decision of a district judge, sitting at Westminster Magistrates' Court who, on 19 February 2021, ordered the appellant's extradition to Poland. The appellant is in fact a national of Romania.
Permission was granted by Whipple J on 10 November 2021, on two grounds. The first is that the district judge wrongly found that the appellant had deliberately absented himself from his trial or court hearing at which he was sentenced to one year and six months' imprisonment, which was suspended with conditions for a period of four years. The suspended sentence was activated on 17 January 2018.
It is argued that because of errors in the judge's approach, he was wrong to order the appellant's extradition. Instead, the district judge should have ordered the appellant's discharge pursuant to section 20(7) of the Extradition Act 2003 (“the 2003 Act”).
The second ground concerns section 21 of the 2003 Act. The appellant submits that the district judge was wrong to find that the appellant's extradition to Poland would not involve a violation of Article 8 of the ECHR; that is the right to respect for private and family life.
The district judge set out the facts of the extradition offence at paragraph6 of his judgment:
“The RP was convicted of one offence in Poland at the District Court in Lublin: An offence between 10.5.15 and 11.6.15, jointly with others, of breaking into a building of the Oczyszczalnia Group 1 [a treatment plant], and after dismantling the disused transformer, stealing copper wire, causing a loss of 50,000 PLN, contrary to Article 279.1 of the Penal Code.
The loss in UK £ is the equivalent of £9,800 approximately.”
Beginning at paragraph 8, the district judge explained the nature of the European Arrest Warrant:
8. Court proceedings. The RP did not appear at his court hearing on 24.10.16. He was convicted in his absence. He was sentenced to 1 yr and 6 months' imprisonment, suspended for 4 years, with 4 years probation, and various financial obligations.
9. Box D [of the European Arrest Warrant] clearly states that he was ‘not summoned in person but by other means… in such a manner that it was unequivocally established that he was aware of the scheduled trial and was informed that a decision may be handed down if he or she does not appear for the trial’.
10. Box D also states ‘The judgement was issued as a result of filing the motion for conviction without conducting a trial by a prosecutor in procedure of the Article 355.1 of the Code of Criminal Procedure’.
11. Box D also states that after being convicted the RP ‘did not request a re-trial or appeal within the applicable time frame’.
12. The judgement containing the sentence became final on 20.12.16.
13. The suspended sentence was activated on 17.1.18, presumably as a result of a failure to engage with probation or meet his financial obligations.
14. The full term of 1 yr, 6 months imprisonment remains to be served.”
The appellant gave evidence. The district judge described this evidence as follows:
“18. The RP gave evidence before me with the benefit of a Romanian interpreter. After being sworn, he stated his written proof of evidence stood as his evidence in chief. He was not asked further questions.
19. He was cross examined by the JA. He agreed there was a ‘sentence deal’ with the prosecution. As part of it he says he was told to leave Poland and not to return. When challenged about this, he said he was told he should admit the offence and then he would be released and able to go home, although he would not be able to return. He denied he was changing his story. He said he was asked for an address in Poland but did not have one. He said he was not aware of the hearing date in Poland and only became aware of the sentence after he arrived in the UK. When it was put to him he had knowingly and deliberately failed to attend the hearing, he repeated his assertion that he was not told of it and was not aware of it.
20. He said he first came to the UK about 3 years ago and finally came here to settle on 28.2.20. His wife and 3 children [of school age] followed him here in about August 2020. He has a stepson who remains in Romania.”
At paragraphs 20 and 21, the district judge described the evidence of the appellant's wife.
After making a finding at paragraph 23 regarding the issue of whether the appellant had provided the Polish authorities with an address, the district judge moved to his findings:
“24. Findings. I do not believe the evidence given by the RP. He came across as evasive and untruthful. I find he was interviewed in Poland, admitted the offence and was aware of the obligations upon him and he chose not to comply. There is no reason to believe, other than that he was made aware of the proceedings and chose to ignore them. He was well aware the sentence had been agreed by the prosecution and it follows that he knew there would be a court hearing for that sentence to be imposed. I do not believe he was told he must leave Poland and not return. I find to the criminal standard that he is a fugitive from Polish justice”.
At paragraph 25, the district judge found as follows:
“25. I accept the RP may have been living and working openly in the UK for some time, certainly there is no evidence to counter that assertion, but he has knowingly and deliberately put himself out of the reach of the legal process in Poland, as per Wisniewski & Ors v Regional Court of Wroclaw, Poland & Ors, [2016] EWHC 386 (Admin)”.
Beginning at paragraph 33 the district judge addressed the passage of time:
“33. It is now some time since the offence was committed. The general rule is that a person's extradition is barred if it appears that it would be either unjust or oppressive to extradite him by reason of the passage of time, since either the commission of the offence or he became unlawfully at large. It is necessary to demonstrate not only a long delay, but also the actual injustice or oppression relied on.
34. But in this case, I have found as a fact that the RP is a fugitive from Polish justice. In those circumstances he is prevented from relying on the passage of time, unless there are exceptional circumstances. Lord Diplock said in Kakis v Government of the Republic of Cyprus, [1978] 1 WLR 779. ' 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”.
I accept the RP did not actively conceal his whereabouts or evade arrest but the act of fleeing is sufficient. The later case of Goodyear v Trinidad and Tobago, [2009] UKHL 21, further decided that if a person deliberately flees, he cannot then rely on the passage of time, even if the requesting state has significantly contributed to the delay”.
The district judge also cited RT v The Circuit Court in Tarnobrzeg, Poland [2017] EWHC 1978 (Admin), where, at paragraph 62, Ouseley J observed:
“It is a frequent submission that someone has been living in the UK, openly, often having had contact with various official bodies here, but neither the foreign Judicial Authority nor the NCA can be expected to explore the by-ways and alleyways of British officialdom to discover whether someone is in this country”.
The district judge's conclusion on delay, (in the section 14 sense) was as follows:
“40. I will further address the question of delay below, when I give consideration to Article 8, but as there is no argument as to exceptional circumstances based upon my finding that the RP is a fugitive who deliberately left Poland to avoid the sentence that he knew had been agreed with the prosecution for these offences, the s.14 challenge must fail”.
Turning to Article 8 of the ECHR, the district judge said this:
“42. Delay is capable of being relevant to an argument under Article 8 and the issue of delay has been considered in case law on a number of occasions and it is difficult to reconcile some of the decisions. It was decided in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25, that delay is a matter that can be taken into account, even if the RP is a fugitive, but that in such a case there must be a strong case before there can be a conclusion that extradition would be disproportionate.”
Having considered then what Ouseley J said in Wisniewski and also in Wanagiel v Poland [2018] EWHC 2092 about delay in the context of Article...
To continue reading
Request your trial