Piotr Ziembinski v Regional Court of Plock (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 25 March 2022 |
| Neutral Citation | [2022] EWHC 693 (Admin) |
| Docket Number | Case No: CO/183/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 693 (Admin)
Mr Justice Choudhury
Case No: CO/183/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Émilie Pottle (instructed by ITN Solicitors) for the Appellant
Stefan Hyman (instructed by CPS Extradition Unit) for the Respondent
Hearing date: Thursday 17 March 2022
Approved Judgment
This is an appeal against the decision of District Judge Griffiths, sitting in Westminster Magistrates' Court, on 13 January 2021, ordering the Appellant's extradition to Poland. Leave to appeal was granted by Sir Ross Cranston on 14 February 2022 in respect of three grounds of appeal. A fourth ground of appeal related to an argument that no court in Poland could be considered a Judicial Authority for the purposes of s.2 of the Extradition Act 2003 (“the 2003 Act”) but this was not pursued following the judgment of the Divisional Court in Wozniak v Poland [2021] EWHC 2257 (Admin).
There are two European Arrest Warrants (“EAWs”) giving rise to the extradition proceedings in this matter:
The first, EAW 1, is an accusation warrant issued on 10 March 2020. It relates to a single offence that the Appellant:
“in the undetermined period, but not earlier than from spring 2009 to 16 June 2010 in Plock, contrary to the provisions of the Act, in order to gain a financial benefit through sale, […] granted a narcotic drug in the form of marijuana with an undetermined amount of not more than 50g and value of not more PLN 1,500 to a minor…”.
That offence was alleged to have been committed within 5 years of serving a sentence of more than 6 months' imprisonment for what has been described as an earlier “similar offence”. That earlier offence was one of robbery committed on 7/8 August 2003, also in Plock, when the victim, a minor, was beaten and money was taken. For that offence he was sentenced to 2 years' imprisonment suspended for 5 years. However, the Appellant got into a fight in 2005 and the suspended sentence was activated. He surrendered to prison and served the full 2 years of the activated sentence.
The second EAW, EAW 2, is a conviction warrant and was issued on 24 June 2020. It relates to an offence committed on 12 June 2009 when the Appellant, acting jointly with another, took part in an assault on two victims by beating them with his fists and kicking them. One of the victims suffered bodily injury. That offence was also committed within the 5-year period following the serving of a sentence of more than 6 months for a similar offence, namely the 2003 beating referred to above. At a hearing before the District Court in Plock on 18 September 2009, the Appellant was sentenced to 2 years' imprisonment conditionally suspended for 5 years. The Appellant was present at the time of sentencing. By a decision dated 28 January 2011, the suspended sentence was activated as a result of the Appellant changing his place of residence without informing the Court. A search was ordered by means of an arrest warrant. However, the Appellant could not be located. On 12 February 2020, the police informed the Court that the Appellant may be in the UK and steps were taken to issue EAW 2, which was issued on 24 June 2020.
The Appellant had left Poland in June 2010. Since then he has been in regular employment in various jobs in the Peterborough area. He has no convictions or cautions in the UK.
He has been together with his fiancée, Ms Sian Whitecross, for almost 8 years. They live together and plan on getting married. Ms Whitecross suffers from depression and anxiety and depends on the Appellant for emotional support. They have no children. The Appellant has no other family in the UK. He is not in touch with his father but he is in contact with his mother who resides in Poland. She has been to visit him in the UK every couple of years.
Hearing before the Magistrates Court
In relation to EAW 1, the Judge found that there was nothing to suggest that the Appellant was under any bail conditions or obligations in relation to this offence. Accordingly, the Judge found that he is not a fugitive in relation to that matter.
However, in relation to EAW 2, the Judge found that the Appellant is a fugitive from justice. The Judge rejected his contention that he was unaware of the conditions attached to his suspended sentence and concluded that he had deliberately put himself beyond the reach of the Judicial Authority in order to avoid serving the sentence of imprisonment.
The Appellant contended that the particulars contained in EAW 1 were insufficient and failed to comply with s.2(4)(c), of the 2003 Act, read in the light of Article 8(1)(e) of the Council Framework Decision of 8 June 2002 (“the Framework Decision”), which provides that an EAW must include, inter alia:
i) The nature and legal classification of the offence…; and
ii) A description of the circumstances in which the offence was committed including the time, place and degree of participation in the offence by the requested person:
Having considered the authorities, the Judge concluded that the particulars were sufficient.
The Appellant raised a passage of time argument under s.14 of the 2003 Act. The Judge noted that the Appellant could not rely upon s.14 in relation to EAW 2 as he was a fugitive. Whilst the Appellant was not a fugitive in relation to EAW 1, the Judge felt unable to ignore his conduct in relation to EAW 2 where he had taken himself out of the jurisdiction.
Insofar as there was a delay in relation to the issuing of EAW 1, that was at least in part because the Appellant had left Poland without informing the Judicial Authority. There was no evidence that Appellant could not be fairly tried. Mere passage of time was not sufficient to establish oppression. Whilst there would be some emotional and financial impact on his partner, it was not so great as to amount to oppression. The Judge considered that the Appellant's partner would cope. For these reasons, set out more fully at [65] to [67] of the judgment, the Judge concluded that the Appellant's extradition was not barred by passage of time.
As to the Appellant's Art 8 rights, the Judge considered the factors for and against extradition at [82] to [89], and concluded that, whilst the Appellant's Art 8 rights are engaged, there was nothing in the evidence before her to suggest that the negative impact of extradition on the Appellant and his fiancée outweighs the strong public interest in extradition. In those circumstances, it was not considered disproportionate to order extradition.
Finally, the Judge considered whether it would be disproportionate under s.21A of the 2003 Act to extradite the Appellant for the offence under EAW 1, which is an accusation warrant. The Judge considered that, although the offence was not the most serious, it was not insignificant. The Judge also had regard to the fact that it was committed within 5 years of serving a sentence of more than 6 months' imprisonment for a “similar offence”. The Judge was unable to say what the likely penalty would be but considered that a custodial sentence would be likely given the nature of the offence – selling cannabis to a minor – and the fact that the Appellant has previous convictions. There was no indication that the Judicial Authority would take any less coercive measures. In all the circumstances, extradition was not considered to be disproportionate.
The Grounds of Appeal.
Ground 1 – Sufficiency of Particulars.
Ground 1 relates only to EAW 1. The contention is that the particulars of the offence in EAW 1 are insufficient and fail to comply with the requirements of s.2(4)(c) of the 2003 Act read in the light of Article 8(1)(e) of the Framework Decision.
Submissions – Ground 1
Ms Pottle, who appears for the Appellant (but did not appear below), submits that the particulars are deficient because they do not permit the Appellant to properly to raise the following bars:
i) Speciality under s.11(f), of the 2003 Act;
ii) Proportionality, under s.21A, of the 2003 Act; and
As to the first of those points it is submitted that the description of the offence is so broad that if the Appellant were to be prosecuted upon his return for a drugs offence occurring at some point in the 15-month timeframe stipulated, it would be nearly impossible for him to avail himself of the speciality protection. The description of the offence fails to identify the person to whom the drugs were sold, covers a lengthy time period, and also covers the entire city of Plock. Furthermore, the amount and value of the drugs is not stated save for the expression of an upper limit on each, and the possibility of more than one transaction is not excluded. Taken as a whole, Ms Pottle submits that the accusation is so vague as to render the speciality protection provided by the 2003 Act illusory.
As to proportionality under s.21A of the 2003 Act, it is submitted that the Appellant is severely constrained as to the submissions he is able to make on seriousness and the likely penalty because the information as to the offence, in terms of the quantity and value of marijuana sold and the number of transactions involved, is so vague. These deficiencies apply equally to the Art. 8 considerations because of the need for the Judge to weigh the seriousness of the offence.
Mr Hyman, who appears for the Respondent (but who also did not appear below), submits that it is a question of fact...
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