Prezemyslaw Piwonia v District Court, Bielsko-Biala, Poland
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cox DBE |
| Judgment Date | 09 October 2013 |
| Neutral Citation | [2013] EWHC 3510 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 October 2013 |
| Docket Number | CO/7703/2013 |
[2013] EWHC 3510 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Cox DBE
CO/7703/2013
Mr Jonathan Lennon (instructed by Kaim Todner) appeared on behalf of the Appellant
Ms Saoirse Townshend (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge McPhee, sitting at Westminster Magistrates' Court on 19 June 2013, to order the appellant's extradition to Poland to serve two sentences of imprisonment. The European Arrest Warrant, issued on 14 September 2012, was a conviction warrant for the appellant to be returned to Poland to serve two sentences of imprisonment which were activated after initially being suspended.
At the hearing before the District Judge, the appellant was represented by his solicitor, Mr Katz, and the only submission advanced on the appellant's behalf was that extradition for this appellant would be incompatible with his rights under Article 8 of the European Convention. That is also the sole ground of appeal in the appellant's notice.
In his skeleton argument prepared for the appeal, however, Mr Lennon now seeks to raise, in addition to the Article 8 point, a new issue not raised below, namely whether the appellant's extradition would be oppressive by reason of the passage of time and delay. To a certain extent there is an overlap between the Article 8 point and delay, because the latter was clearly relevant, in part, to the District Judge's consideration of the appellant's family life and his rights under Article 8. However, Mr Lennon is now seeking to argue a point which was not mentioned before the District Judge, namely that the passage of time is a bar to this appellant's extradition.
Ms Townshend, for the respondent, submits that Mr Lennon should not now be allowed to raise this new issue, no evidence having been provided as to why it was not raised before. She points out that the respondent has not had an opportunity to seek further information in relation to delay from the Judicial Authority. Alternatively, she submits that the circumstances being relied on by the appellant could not demonstrate that his extradition is oppressive due to the passage of time in this case. Any delay, she submits, was due to the actions of the appellant himself. In relation to Article 8, she submits that the District Judge was entitled to find as he did in relation to the appellant's Convention rights and to conclude that his extradition was proportionate in all the circumstances.
The European Arrest Warrant was issued on 14 September 2012 at the District Court in Bielsko-Biala and certified on 8 October 2012. The appellant's surrender is sought in order for him to serve sentences of imprisonment imposed for two convictions as follows. Firstly, case number II K 578/03, which is an equivalent offence of burglary of commercial premises, committed on 27/28 January 1999, in which the appellant stole cigarettes, alcohol and cash to the equivalent value of £376.78 as at that time. Secondly, case number VI K 644/04, on 28 February 2004, an equivalent case of fraud by false representation contrary to section 2 of the Fraud Act 1968. The appellant appears to have forged an identity card or document in order to deceive the complainant as to his identity in order to gain skiing equipment to the total value of £1,162.72 as at that time.
In relation to the first of these crimes, on 6 February 2004 the district court in Cieszyn sentenced the appellant to 1 year's imprisonment, suspended for 2 years, but subsequently activated in circumstances I shall refer to a little later on. In relation to the second matter, on 28 September 2004 the same District Court sentenced the appellant to 1 year's imprisonment suspended for 4 years, again subsequently activated. The appellant has the entirety of both these sentences to serve.
Ms Townshend submits, and it is common ground, that the appellant did not appear at the court for either hearing in 2004. He had apparently been summonsed to appear at court in relation to the first case on 8 December 2003, and on 2 August 2004 he had been summonsed to appear on the second matter, although there is some dispute as to whether or not the procedure may have been such that he did not have to attend court on those occasions. In any event, he did not attend, and after those sentences were imposed it is common ground that he entered no appeal against either sentence.
On the warrant, the framework list for forgery and fraud in box E(1) is ticked. I need to explain the activation of the suspended sentences and I summarise the relevant chronology, which is set out accurately in the skeleton arguments submitted by both counsel and about which there is no dispute. The burglary, the first matter, was committed on 27/28 January 1999. It was not until 6 February 2004 that the appellant was sentenced to a term of 1 year's imprisonment suspended for 2 years. He then committed the fraud offence on 28 February 2004. On 28 September 2004 he was sentenced in respect of that matter to 1 year's imprisonment suspended for 4 years. In December 2005 it is accepted that the appellant came to the United Kingdom. The District Judge, in his reasoned judgment, gives the year of his arrival in the UK as 2007, but it is common ground that that was an error. It is Ms Townshend's submission that it is a factual error which made no difference to his decision, and I will return to that point later on.
It was on 26 January 2006 that the 1-year sentence for burglary was activated, on the basis that the appellant had committed a similar offence, namely the fraud, during the period of suspension. On 5 October 2006, the 1-year sentence for the fraud was activated because he had "evaded performing the imposed duty". The domestic arrest warrants were issued for the burglary on 31 March 2008 and for the fraud on 27 October 2008. The European Arrest Warrant was then issued on 14 September 2012.
There is no dispute as to what happened below. The appellant was arrested on 12 October 2012 and served with a copy of the warrant in both Polish and English. He appeared on the same day before District Judge Evans for the initial hearing and was then represented by the solicitors, Eshaghian & Co. No issues were raised with regards to his production or identity, and the matter was adjourned because at that time the appellant was awaiting sentence for an offence of driving whilst disqualified at Reading Magistrates' Court.
He next appeared on 30 October 2012 before the District Judge and was represented by Mr Katz, who is accepted to be an experienced extradition solicitor. By that time, he had been sentenced to 24 weeks' imprisonment suspended for 2 years by Slough Magistrates' Court, and he indicated that he wished to appeal that sentence. He raised one bar to extradition, namely section 20, and the matter was then adjourned until 19 November 2012 for an extradition hearing.
There was then an unfortunate series of adjournments for various reasons, which I need not go into, and the extradition hearing was then listed for 4 March 2013. Various directions had been given in the interim for the service of defence evidence on which the appellant intended to rely.
On 4 March, the appellant did not appear. The person then representing him referred to him having had an accident on the way to court and the matter was then adjourned until 7 March. On 7 March when the appellant appeared before District Judge Evans, once again represented by Mr Katz, there was an application to adjourn the case due to the appellant's wife's illness. She was then undergoing a CT scan. An unless order was made and further directions given.
On 28 May,...
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