Piotr Pink v Regional Court in Elblag (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 11 May 2021 |
| Neutral Citation | [2021] EWHC 1238 (Admin) |
| Date | 11 May 2021 |
| Docket Number | Case No: CO/4220/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1238 (Admin)
Mr Justice Chamberlain
Case No: CO/4220/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Malcolm Hawkes (instructed by Langfield Law) for the Appellant
Tom Hoskins (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 27 April 2021
Approved Judgment
Introduction
The appellant, Piotr Pink, is sought by the Regional Court, Elblag, in Poland pursuant to a European arrest warrant (“EAW”) issued on 28 March 2018 and certified on 23 April 2018. The Polish judicial authority seeks his surrender to serve the 1 year and 9 months remaining from an aggregate sentence of 4 years and 9 months' imprisonment imposed on 8 December 2011 for offences committed in 1999 (a series of residential burglaries), 1999–2000 (supply of marijuana and amphetamines to a minor and possession of a narcotic drug) and 2005 (possession of marijuana and amphetamines, forging an employment and income certificate and purchasing documents for use as forged documents) and 2005 (a final single incident of non-domestic burglary).
On 22 October 2019, at Westminster Magistrates' Court, District Judge Mallon ordered his extradition. He appeals against that order pursuant to s. 26 of the Extradition Act 2003 (“the 2003 Act”). Permission to appeal was granted by Lane J on three grounds. The appellant has applied to amend the grounds of appeal to add a fourth.
The grounds are that:
(a) extradition would constitute a disproportionate interference with the appellant's rights under Article 8 ECHR and is therefore barred by s. 21 (ground 1);
(b) the EAW contains insufficient particulars of the offence to satisfy the requirement in s. 2(6) (ground 2);
(c) the offences of which the appellant was convicted are not extradition offences within s. 10 (ground 3);
(d) legislation relating to the appointment and tenure of judges in Poland means that the Polish judicial authority is no longer to be regarded as sufficiently independent and impartial to be regarded as a “judicial authority” for the purposes of s. 2 (ground 4).
For the Polish judicial authority, Tom Hoskins accepts that the appellant should have permission to amend to add ground 4 and that, so far as it relates to that ground, the appeal should be stayed pending the decision of the Divisional Court in Wozniak (CO/4299/2019) and Chlabicz (CO/4976/2019), which are listed together for hearing in May 2021. I indicated at the hearing that I would grant permission to amend and the stay sought in relation to ground 4.
There are two contested applications to admit fresh evidence. The first was made on 11 November 2020 by the Polish judicial authority to adduce further information dated 22 July 2020 from the Polish court. The second was made by the appellant on 23 April 2021 to admit a new proof of evidence and certain associated documents.
The history of the case
The appellant committed the first series of offences in 1999 and 2000, when he was 17 and 18 years old. He committed the last in 2005, when he was 23. He first came to the United Kingdom in 2005 and worked in the construction industry. He was convicted and sentenced in 2011, when he was 30. The first EAW for these offences was issued on 29 March 2012 and certified on 26 April 2014. A second EAW was issued on 4 July 2014 for a separate offence of attempted burglary of a grocer's shop in July 2005 for which he had been sentenced to 12 months' imprisonment. The appellant was arrested pursuant to these two warrants on 23 July 2014.
On 10 October 2014, there was an extradition hearing before Senior District Judge Riddle at Westminster Magistrates' Court. The judge discharged the appellant in respect of the first warrant because there was no information to show how the sentences had been aggregated, so the court could not be satisfied as to which (if any) of the sentences was for an extradition offence. In relation to the second warrant, however, the judge ordered the appellant's extradition, finding that he was a fugitive.
By that time, the appellant had a partner and son. Prior to his extradition, they moved to Poland, because the cost of living was lower there. He was then extradited and served 7 months of his sentence. He was not required to serve the remainder due to good behaviour.
The appellant says that, on release from this sentence, he was given written permission to leave the country and did so. There was at that stage no attempt by the Polish authorities to seek the consent of the appellant to execute the sentence the subject of the first warrant. Nor was there any request for the consent of the UK to deal with him under Article 27(4) of Framework Decision 2002/584/JHA (“the Framework Decision”), which provides for such requests.
The appellant accordingly returned to the UK, where in 2016 he began a relationship with another woman. They have been together for some 4 1/2 years. She now has settled status in the UK and works as a primary school teacher. He also set up a company, Pinkman Construction Ltd.
District Judge Mallon's judgment
District Judge Mallon recorded that she had heard oral evidence from the appellant, who said that, since his return to the UK in 2015, he had made voluntary maintenance payments in respect of his son (then 13) of about PLN 1,000 (£200–220) per month. He had savings of about £6,000, which he could use to support them if he were extradited. His former partner and son live in a property which is owned, not rented. He did not know if they would still have a roof over their heads if he were unable to continue to support them. He speaks to his son daily. He also sent money to his sister-in-law and 12-year old nephew following the death of his brother in 2015.
The appellant explained that his company was currently contracted to conduct 3 large-scale building projects around London. The company engaged seven subcontractors, who have worked with him for a long time. He also uses teams of window installers and electricians on an ad hoc basis. If he were extradited, the company would close, though he agreed that the subcontractors would find alternative work.
The appellant said that he had the court's permission to leave Poland. This was given in a “bigger written document”. He agreed that, when he left Poland, “he knew that there was an outstanding sentence for which a request could be made”.
The judge accepted the appellant's evidence about his business, personal relationship and the financial support provided to his son and nephew. Given the relatively modest sums involved, she did not find that either was financially dependent on him. She noted that his former partner owns the home where she and her son live and that the appellant did not know whether she had a new partner. His sister-in-law had family nearby, who could offer support.
The judge found that the appellant's partner was in stable, full-time employment. She had previously lived with her sister. The judge had no doubt that she could do so again. There was no evidence that she would have to return to Poland if the appellant were extradited.
As to the business, the judge found that those who worked for it were self-employed. They would be able to find work elsewhere. There was no evidence to suggest the appellant would not be able to establish a business similar to his current one, although this would take time.
As to the appellant's financial situation, the judge noted that Mr Pink was arrested pursuant to the current EAW at the airport on the way to a holiday in Bali. This holiday had cost £5,000. He said this had been paid for from monthly savings of £50 for two years or more. The judge observed that, if this were true, it would have taken him over 8 years to save the money. Accordingly, she did not accept his evidence as reliable. She said that the ability to afford such an expensive holiday suggested that the appellant and/or his partner had access to more substantial funds than he was prepared to admit. This was “relevant to the assessment of the impact of his extradition upon his partner and the relative contribution he makes to his son and nephew”.
At [23]–[24], the judge said this:
“23. It is abundantly clear from his own evidence that the RP has been well aware of the sentence has passed, the offences to which they relate and that duration. He was represented at the hearing. The sentences were amalgamated at his own request. He knew when he returned to the UK in 2015 that there was still a sentence outstanding for which a request could be made.
24. It was asserted on behalf of the RP that he is of good character in the UK. That is not the case. He received a caution from the Metropolitan Police for shop theft on 04/07/07. It is not the most serious matter, of course, but the RP is not entitled to assert he is of good character in the UK.”
The judge dealt with s. 2 first. She noted that the appellant had submitted that the EAW was deficient for not specifying which sentence applied to which offence. Under cross-examination, however, he confirmed that he did know what the sentences were for, that his own lawyer had asked for them to be amalgamated and that he was aware of that fact. The judge said: “I concur with the submission on behalf of the JA that to now rule that the sentences lack specificity would be absurd.”
Next, the judge turned to s. 10. The appellant's submission was that the offence of participating in an organised group whose aims were committing crimes against property only became a dual criminality offence on 3 March 2015 and was not retrospective. The response of the Polish judicial authority was that, prior to 2015, the appellant could have been...
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