R Damian Chmura v District Court of Lublin Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 20 November 2013 |
| Neutral Citation | [2013] EWHC 3896 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11141/2013 |
| Date | 20 November 2013 |
[2013] EWHC 3896 (Admin)
Mr Justice Ouseley
CO/11141/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Miss Natasha Draycott (instructed by Kaim Todner) appeared on behalf of the Claimant
Mr Myles Grandison (instructed by CPS) appeared on behalf of the Defendant
This is an appeal from the decision of District Judge Purdy on 9 August 2013 to order the appellant's extradition to Poland on a conviction warrant to serve what remains of a ten month sentence of imprisonment for theft committed in 2005. The appellant was 20 in 2005, he is now 28.
The offence is described in the warrant in this way:
"In the period from September 30th 2005 to October 12th 2005 in Lukow, a province of Lublin, acting with premeditation, collectively and in consultation, they took for appropriation purposes 84 pieces of rail joint bars from a joint railway track."
There then immediately follows references to various companies, Polish National Railways, the Polish Railway Lines and the Railway Lines Company, as being the losers in the sum of approximately £700.
The warrant does not say precisely where the rail joint bars were at the time. If the railway joint bars had been part of an operational railway track stolen over a period of about 14 days the offence would be potentially a very serious one indeed, threatening the safe operation of Polish railways. The sentence of ten months, which was suspended, on the latest information I have, for a period of five years, suggests that it was not theft of track from a live operational railway but from premises beside the railway. I approach matters on that basis.
The appellant was arrested and taken to court. He was sentenced on 12 May 2006. He was then serving his time of nine months as an army conscript. He gave evidence to the District Judge that he got permission from the army to attend the hearing at which he pleaded guilty to the theft. He said that he received a sentence suspended for four years without conditions.
He left the army at the conclusion of his military service in about March 2007. He came to the United Kingdom in August 2007. He did not inform the authorities that he had come to the United Kingdom.
It appears, again from further evidence, which I accept, supplied to this court but not to the District Judge, that the sentence was activated on 14 March 2007 at about the time the appellant came out of the army and before he came to the United Kingdom. It is said, but there are no findings about this by the District Judge and the evidence does not permit me to make any other findings, that the court would have known that he was in the army and could have contacted him there, or alternatively had not appreciated that one reason why he might be unable to comply with the sentence suspension conditions was because the requirements of serving in the army came ahead of such requirements. Be that as it may the sentence was undoubtedly activated shortly after he left the army and before he came to the United Kingdom. So his coming to the United Kingdom was not the cause of it being activated. It was, however, the reason why the authorities were unable to get hold of him for a number of years.
It is on that basis that Miss Draycott on his behalf submits that the District Judge, if entitled to hold that he was a fugitive, as he did, should not have treated him as a "classic" fugitive. The judge pointed to the passage in the EAW in which the Polish authorities said that the appellant, "… is hiding from the judiciary", and:
"… did not report for the judgment delivery although he had been notified about the term properly."
That must relate to what he did or did not do while he was in Poland and for much of which he was in the army.
I have had further information than the District Judge had but I am reluctant on that basis to conclude that the District Judge is wrong in relation to his conclusion about his being a fugitive. I am prepared, however, to give consideration to the fact that the sentence was activated before he left Poland so his departure was not the cause of its being activated although it clearly contributed to the delay. I am also not prepared to go behind the District Judge's finding that the appellant must have been aware that there were some conditions upon him.
However, the appellant, if unable to make a case of oppression, puts forward a case that his removal would be disproportionate. A number of factors are relied on.
First, the lapse of time between 2005 and 2013. This is a lapse of time for which he is to a large extent responsible although I accept that between the age of 20 and 28 a young man with perhaps a wilder side will settle down, mature and become a model adult. It is the actual change in life and age which is important in judging the proportionality of a return to serve a sentence.
He has had no further convictions in this country. That is relevant because it demonstrates that the change is a real change. This was his only offence in Poland.
He has worked in a number of jobs in this country, including most recently as a supervisor for Toyota in Derby. I am told, and it appears to be something which the District Judge did not specifically reject — see his comment in the last paragraph of section 6 and what is then found in section 7 — that employment would continue to be available with Toyota, if he were not extradited.
Third, and of very considerable importance, is that he was arrested on 22 June 2013 and will very shortly have...
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...in this case but I have drawn assistance from two decisions of Ouseley J sitting in this jurisdiction, namely the case of Chmura v District Court of Lublin [2013] EWHC 3896 (Admin), judgment given on 20 November 2013. The appellant was then 20 in 2005 when he committed an offence of theft a......
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Jesionowski v Regional Court in Gdansk Poland
...territory. 12 More relevant to this case are the cases of Pawel Gruszecki v Circuit Court in Gliwice [2013] EWHC 1920 and Damien Chmura v District Court of Lublin [2013] EWHC 3896 (Admin). In the latter of those cases, the court referred to evidence which had been placed before this court i......
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