Piotr Borzecki v Polish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cheema-Grubb |
| Judgment Date | 26 March 2019 |
| Neutral Citation | [2019] EWHC 1032 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2019 |
| Docket Number | No. CO/3291/2018 |
[2019] EWHC 1032 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Cheema-Grubb
No. CO/3291/2018
Ms A. Nice (instructed by MWS) appeared on behalf of the Appellant.
Mr J. Swain (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
This is an appeal from the decision of District Judge Grant on 14 August 2018 to order the appellant's extradition to Poland to serve an aggregate sentence of two years and six months' imprisonment for, firstly, an offence on 6 July 2015 of dangerous or careless driving, failing to stop or help a victim and driving in breach of a ban and, secondly, an offence on 7 December 2015 of driving in breach of a ban. Almost the entirety of the sentence remains to be served; two years, five months and 28 days. I take that description from the narrative in the European Arrest Warrant (EAW).
Brief details taken from the same source are as follows. On 6 July 2015 the appellant drove his motorcycle carelessly on a road in Rogoznik while disqualified from driving. When overtaking another motorbike, his actions caused the rider of the other bike to fall and injure herself. The appellant drove off from the scene, it appears, without offering any assistance to the injured woman. On 7 December the same year he drove a VW Golf motorcar on a public road whilst still disqualified from driving.
The hearing in Poland took place on 15 November 2016. Judgment was pronounced on 18 November when the appellant was sentenced. He did not attend that second hearing. Thereafter, he failed to report voluntarily to prison when summonsed to do so. He was not living at his registered address. He had not informed the authorities of his change of address.
In oral evidence, in which he adopted a statement he had made, the appellant told the District Judge that he had been order today pay PLN 25,000 and, as he did not have the money, he had travelled to the United Kingdom to earn enough to pay it off. The payment was imposed in addition to the immediate term of imprisonment, about which he had known before he left Poland. His intention, he said, had been to earn enough to pay the amount he owed and then surrender himself to custody. The majority of the sum remains outstanding.
The appellant was arrested in this jurisdiction on 26 June 2018 pursuant to EAW issued on 6 January 2018 and certified by the National Crime Agency on 25 June 2018. He was remanded in custody where he remains. Following an extradition hearing on 7 August 2018, extradition was ordered in a judgment promulgated on 14 August. As the judgment relates, the substantial issue raised on behalf of the appellant was infringement of his rights under Art.8. However, brief submissions were also made on the issue of dual criminality. The District Judge's attention was drawn to the contents of section E of the translated EAW, which reads as follows:
“E. Offence (s):
1. This warrant relates to in total: 2 (two) offences. -/-
2. Description of the circumstances in which the offences were committed:
Pawel Borzecki was convicted of the following:
a/ On 6 th July, 2015 in Rogoznik, Poviat of Nowy Targ, he unintentionally violated traffic safety regulations in such manner that on Provincial Road No 957, while operating a Honda motorcycle registration plates No: RST 26VY and riding in the direction of Czarny Dumajec, he did not pay particular attention and did not keep a safe distance while overtaking a Keeway motorcycle, registration number KNT VY40 riding in the same direction, leading to its falling over, as a result, Alicja Gasienica, who was operating the Keeway motorcycle suffered injuries in the form of the left humerus shaft fracture with displacement, the left ulnar shaft fracture with displacement, an open left lower leg fracture with displacement, suspected fracture of the epiphysis of the left distal radial bone- all of which impaired her bodily functions for the period exceeding seven days, and subsequently, he escaped from the scene of the accident without helping the victim of the traffic accident who was in a position of a direct risk to her life or a serious bodily impairment, although he was able to help her without posing risk to his life or without a risk of a serious bodily impairment to himself; furthermore, at that time while he was operatin the Honda motorcycle, registration plates No: RST 26VY, he violated the ban on driving motor vehicles which had been imposed on him by Sad Rejonowy [District Council] in Nowy Targ in the case ref. no. II K 603/13 for the period from 13 th June, 2013 to 13 th June 2017.-/-
The above act constitutes an offence violating Art. 177 §1 in conjunction with Art. 178 §1 in conjunction with Art. 162 §1 in conjunction with Art. 244 in conjunction with Art. 11 §2 of the Act dated June 6, 1997 – The Penal Code -/-
b/ On 7 th December, 2015 in Wroblowka, District of Nory Targ, he was driving a passenger car, a VW Golf registration Plates No. KTA 12378 on a public road, in violation of the ban on driving motor vehicles which had been imposed on him by Sad Rejonowy [District Council] in Nowy Targ in the case ref. no. II K 603/13 for the period from 13 th June, 2013 to 13 th June 2017. -/-
The above act constitutes an offence violating Art. 244 of the Act dated June 6, 1997 – The Penal Code. -/-
3. Nature and legal classification of the offences(s):
a/ an offence violating Art. 177 §1 in conjunction with Art. 178 §1 in conjunction with Art. 162 §1 in conjunction with Art. 244 in conjunction with Art. 11 §2 of the Act dated June 6, 1997 – the Penal Code. -/-
b/ an offence violating Art. 244 of the Act dated June 6, 1997 – the Penal Code.”
District Judge Grant rejected the submission made to him that in respect of the July matters the EAW failed to satisfy s.10 of the Extradition Act 2003. He said:
“… the offences described in the warrant are causing injury by dangerous or careless driving and driving whilst disqualified and the requested person's decision to leave the scene of the incident without assisting the victim appears to have been an aggravating factor, as it would have been in this jurisdiction.”
I will return to that part of his judgment. A key element of the lawful extradition is the requirement that the offence for which extradition is sought must be an offence under English law; the dual criminality requirement. Where extradition has been sought for an offence unknown to English law, the position is clear. The order cannot be made and, if made, it cannot stand. Where there is a direct replication of laws between the requesting country and English law, then the position is equally clear and no appeal would be granted permission.
In a recent judgment, to which Ms Nice has referred me, Knowles J in Biri v High Court in Miscolk, Hungary [2018] EWHC 50 (Admin) lauded the historical practice of requesting states providing a schedule of equivalent charges in English law as of great assistance in helping to identify with clarity the equivalent home offence.
This present appeal is one in which the court must assess whether the offence, which is the subject of the extradition request, is an extradition offence for the purposes of s.10 and s.65 of the Extradition Act 2003. The issue at the heart of this appeal is whether the requirements of s.10 and s.65 were satisfied, despite the inclusion of the following words in the description in Box E2a of the warrant:
“… he escaped from the scene of the accident without helping the victim of the traffic accident who was in a position of a direct risk to her life or a serious bodily impairment …”
Permission to argue this appeal was granted on 14 January 2019 by Sir Wyn Williams on the s.10 argument only. Although on 13 February an extension of funding was granted to cover an expert's report on whether or not, should the court take a certain view, the sentence could be disaggregated, no expert's report is relied on in this appeal and the topic of impossibility of disaggregation of sentence has not been pursued before me.
On the s.10 question, the submission made by Ms Nice is that the District Judge fell into error when he concluded that...
To continue reading
Request your trial