R Andrzej Sawko v Circuit Court in Gorzow Wielkopolski, Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURNETT |
| Judgment Date | 13 January 2011 |
| Neutral Citation | [2011] EWHC 68 (Admin) |
| Docket Number | CO/9438/2011,CO/9438/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 January 2011 |
[2011] EWHC 68 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Burnett
CO/9438/2010
The Claimant appeared in person
Mr D Sternberg (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
: This appeal came before a Divisional Court on 16th December 2010, in which I sat with Laws LJ. On that occasion no interpreter was present and it became clear that the appeal could not proceed.
The appellant had sought an adjournment in writing a couple of days earlier to enable further steps to be taken on his behalf by lawyers acting for him in Poland. An adjournment on those grounds was refused. As part of his submissions before me this morning, the appellant has again prayed in aid the fact that his Polish lawyers are seeking to resolve the underlying proceedings. Although no adjournment was sought this morning, it would have been inappropriate to put off these proceedings again. Furthermore, the fact that there are ongoing legal proceedings in the requesting country does not form a ground of appeal under the statutory regime.
On 16th December, we extended time for the hearing of this appeal and adjourned the matter for the presence of an interpreter. In addition, we directed that the appeal could be heard by a Single Judge in the Administrative Court. It is in those circumstances that the matter comes before me today.
On 1st September 2010, District Judge Riddle ordered the extradition of the appellant to Poland pursuant to section 21(3) of the Extradition Act 2003. This is an appeal against that order pursuant to section 26. A European Arrest Warrant was issued by the circuit court in Gorzow Wielkopolski on 4th December 2008. It related to the appellant's final conviction on 20th January 2006 for offences concerning pornography and children. He was sentenced to one year's imprisonment, suspended on terms for three years. It was a condition of the suspension of the sentence that the appellant maintained contact with the probation service. He left Poland and came to the United Kingdom in 2007, in particular to find work.
On 16th June 2010, the regional court activated the suspended sentence, to use language familiar in this jurisdiction. As the chronology shows, the warrant was in fact issued before the court activated that sentence, although the warrant was not certified in the United Kingdom until June 2010.
No bar to extradition was raised before District Judge Riddle. Instead the appellant developed two arguments by reference to the European Convention on Human Rights. First, he submitted that, by reason of the presence in the United Kingdom of his wife and young child, extradition to Poland would violate Article 8 of the Convention. Secondly, he argued that his removal would involve a breach of Article 3 of the Convention because of his fears that in consequence of the nature of his offending he would be vulnerable to attack and other adverse consequences on his return to Poland.
The District Judge rejected both those arguments. In the notice of appeal filed in these proceedings before me, those arguments were not repeated. However, in argument this morning Mr Sawko has put at the forefront of his submissions those two factors. Mr Sternberg, who appears for the respondent, has taken no technical point. As a result, I shall deal briefly with those arguments.
The appellant has expanded upon his domestic situation in the United Kingdom. He is plainly deeply affected by the possibility of separation and, no doubt, the alternative of uprooting the family to Poland. There has been considerable recent learning in the Supreme Court and the European Court of Human Rights about the circumstances in which Article 8 might be prayed in aid to resist extradition. In the recent case of Norris v Government of the United States of America [2010] UKSC 9, Lord Phillips, with whom the eight other Justices agreed, explained that "only the gravest interference with family life will be capable of rendering extradition disproportionate to the public interest it serves". The facts of that case were undoubtedly strong but not strong enough.
In King v United Kingdom 9742/07, the Strasbourg Court considered an application manifestly unfounded. The facts were that the applicant was to be extradited to Australia. He had a wife and two small children in the United Kingdom. His wife was ill, indeed too ill to be able to follow him to Australia. A protracted separation was therefore an inevitable consequence of extradition. In considering the application manifestly unfounded, the Strasbourg Court considered that the facts were not such as to give rise to an arguable breach of Article 8.
So far as the perceived threat of any violence of other adverse consequence on return to Poland is concerned, the law is again well settled. The appellant is concerned about the behaviour of non-state actors. Such a perceived threat can only provide succour for Article 3 purposes if there is clear evidence of the state's unwillingness or practical inability to provide protection. There is no such evidence as regards Poland, which I note is a member of the European Union as well as a party to the ECHR.
I turn now to the three arguments advanced in writing. (1) It is suggested that extradition is barred by section 20 of the 2003 Act because the sentence was activated in the appellant's absence when he had no notice of the hearing. (2) It is suggested that the appellant will not have a retrial on return to Poland with the consequence that there will be a flagrant denial of justice for the purposes of Article 6 of the Convention. That is the concept discussed in the House of Lords in R (Ullah) v...
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