Przemyslaw Bialkowski v Regional Court in Kielsce, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 16 May 2019 |
| Neutral Citation | [2019] EWHC 1253 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4577/2018 |
| Date | 16 May 2019 |
[2019] EWHC 1253 (Admin)
THE HONOURABLE Mr Justice Kerr
Case No: CO/4577/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Brown (instructed by Kaim Todner Solicitors) for the Claimant
Rachel Kapila (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 14th May 2019
The appellant, Mr Bialkowski, appeals against the decision of District Judge Tempia made on 12 November 2018 to extradite him to Poland to serve a six month prison sentence for driving while disqualified. The offence was committed on a public road in Kielce, Poland, on 26 March 2006. The prison sentence was imposed first as a suspended sentence on 21 September 2006; then, on 10 September 2007, the sentence was activated.
Silber J granted permission to appeal on two grounds, of which one is pursued: whether it was open to the district judge to find that the appellant had deliberately absented himself from his trial; the issue arising under section 20 of the Extradition Act 2003 (the Act). He refused permission to appeal on the basis that extradition would breach the appellant's rights under article 8 of the European Convention on Human Rights (ECHR).
The appellant was arrested and questioned in Kielce on 29 March 2006. He provided his address in Poland and was given a document stating that he must appear at any “request from law enforcement authorities over the time of proceedings” and must notify any change of address; if he did not do so, any correspondence sent to the address he had provided would be considered properly served on him.
He was questioned again on 4 May 2006 and signed a document acknowledging his obligation to notify any change of address. He then came to the UK during the same month, May 2006. A notice to appear at court was sent to the address he had given. He did not collect the notice to appear. The local court in Kielce held a hearing in his case in his absence on 24 August 2006. On 15 September 2006, a summons was sent to his address notifying him that he must appear in court on 21 September 2006.
He did not attend. On 21 September 2006, in his absence, the court imposed the six month suspended prison sentence. The appellant did not appeal or request a retrial within the statutory time limit. As a result the sentence became final on 29 September 2006. The summonses to attend court were returned to the court marked “post returned to the sender after non-collection within time limit”.
Later, the appellant was summoned to appear at the court on 10 September 2007 by a document sent to the same address. He did not collect the summons; nor did he appear at the court on that day. In his absence, the court activated the previously suspended sentence of six months' imprisonment. Notification of the court's decision was sent to the same address. He did not collect that decision to activate the suspended sentence.
The decision to activate the suspended sentence became final, in the absence of any communication from the appellant, on 11 October 2007. He was sent a further communication, to the same address, requiring him to report to the remand centre in Kielce by 24 June 2008. He did not collect that document, nor did he attend the remand centre to serve his sentence.
On 26 January 2009 he made an application to vary the decision to activate his suspended sentence. So he must have known about that decision. The local court in Kielce refused that application on 17 February 2009. The appellant personally collected the written decision refusing his application. He appealed against that refusal decision, to the regional court in Kielce. The regional court made a decision on 7 April 2009, upholding the refusal to vary the decision to activate the suspended sentence.
The appellant did not attend the hearing at which that decision was given. Written notice of the decision was sent to the same address. That document was collected by the appellant's mother. On 27 April 2009, the appellant applied for a stay of the sentence of immediate imprisonment. The local court refused that application on 27 May 2009.
He appealed to the regional court, which dismissed his complaint and upheld the local court's decision. It appears from the information provided by the Polish judicial authorities that this decision was made on 9 September 2009 and that at the same time the local court issued a domestic search warrant. The appellant was not found in Poland because he was living in the UK.
A European Arrest Warrant (EAW) was issued on 18 November 2010 in respect of the appellant, seeking his extradition to Poland. It was certified by the National Crime Agency (NCA) on 10 June 2015. The appellant was then arrested in this country on 6 December 2015 but released on conditional bail on 13 January 2016.
An extradition hearing took place on 19 April 2016. District Judge Baraitser discharged the appellant under section 20(7) of the Act. That must have been on the basis that the appellant would not be entitled to a retrial or (on appeal) to a review amounting to a retrial. It therefore appears (though I have not seen a written decision) that the district judge did not find that the appellant had deliberately absented himself from his trial.
A second EAW was issued on 31 August 2016 and certified by the NCA, this time rather more speedily, on 9 September 2016. Nearly two years later, on 14 August 2018, the appellant was living with a woman near Manchester and committed two battery offences, one against her and one against a neighbour. He was arrested the next day, probably both under the second EAW and also in connection with the two offences of battery.
His extradition hearing was adjourned on 16 August 2018, to await the outcome of the domestic charges, to which the appellant pleaded guilty on 14 September at the Greater Manchester Magistrates' Court. He was given a community order and a restraining order was made in favour of the neighbour. The extradition hearing was then fixed and heard by District Judge Tempia on 2 November 2018.
The appellant was unrepresented. He gave evidence on oath, which the district judge found dishonest, evasive and unworthy of belief in several respects. She gave her written decision on 12 November 2018. She largely accepted his evidence about his life and work in the UK, but rejected his account of events relating to the proceedings in Poland. In particular, she rejected his evidence that he was estranged from his mother and that he had, in 2015, been arrested under the first EAW and then released in the Netherlands.
The district judge decided to extradite the appellant to Poland under section 21(3) of the Act. She rejected the proposition that it would be unjust or oppressive to order his extradition. She was satisfied, to the criminal standard, that he had deliberately absented himself from his trial. He was therefore not entitled to rely on absence of a right to a retrial. Finally, she applied the “balance sheet” approach recommended by the Divisional Court in Celinski v. Slovakian Judicial Authority [2015] EWHC 1274 (Admin) and found that extradition would be compatible with the appellant's Convention rights.
Both counsel referred in their written and oral arguments to recent case law on the issue of proof that a requested person has deliberately absented himself from his trial. I was grateful for the tour through the cases, from which, without reviewing them in detail, I discerned the following points relevant to the present appeal.
An accused is taken to be deliberately absent from his trial if he has been summoned to appear at court in a manner which, even though he may have been unaware of the scheduled date and place of trial, does not violate article 6 of the ECHR: Cretu v. Local Court of Suceava, Romania [2016] 1 WLR 3344, per Burnett LJ (as he then was) at [34], proposition (ii)).
In connection with cases where the accused is not personally given the summons to attend court, the Court of Justice (Fourth Chamber) stated in Openbaar Ministerie v. Dworzecki C/108-16 PPU at [51] that the executing judicial authority may “have regard to the conduct of the person concerned” and referred to a test of “manifest lack of diligence of the person concerned, notably where it transpires that he sought to avoid service of the information addressed to him”.
In Romania v. Zagrean [2016] EWHC 2786 (Admin), the Divisional Court, dealing with three applications, reaffirmed the authority of Cretu, citing...
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