R (Kasprzak) v Warsaw Regional Court

JurisdictionEngland & Wales
JudgeMR JUSTICE McCOMBE,Lord Justice Richards
Judgment Date02 February 2011
Neutral Citation[2010] EWHC 2966 (Admin),[2011] EWHC 100 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/7393/2010 CO/8910/2010,CO/7393/2010
Date02 February 2011
Between
The Queen on the Application of Kasprzak
Claimant
and
Warsaw Regional Court
Defendant

[2010] EWHC 2966 (Admin)

Before: Mr Justice Mccombe

CO/7393/2010

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Mr M Henley (instructed by Central Law Office) appeared on behalf of the Claimant

Miss L Rafter (instructed by Crown Prosecution Service) appeared on behalf of the Defendant

(As approved)

MR JUSTICE McCOMBE
1

: This is an appeal by Mr Marcin Kasprzak, whom I shall call “the appellant”, against an order of 2 July of this year of District Judge Tubbs sitting at the City of Westminster Magistrate's court, whereby the learned judge ordered the extradition of the appellant to Poland. The request for extradition is made pursuant to an European arrest warrant, issued on 26 March 2009, in respect of the appellant's conviction following a plea of guilty of one offence of assault occasioning injury.

2

The offence took place on 1 April 2004 and the appellant was sentenced on 19 September 2006 to a term of one year and three months' imprisonment, suspended on conditions for three years. The suspended sentence was activated by an order of the District Court at Warsaw of 2 October 2008. A search for the appellant was then instigated and in January 2009 the court in Poland received a report that the appellant was in the United Kingdom, which led to the issue of the warrant in this case.

3

On 16 November 2009, the warrant was certified by the Serious Organised Crimes Agency in accordance with subsections (7) and (8) of section 2 of the Extradition Act 2003. On 11 January the appellant was arrested in Bristol and was produced at the City of Westminster Magistrates' Court on 12 January of this year for an initial hearing. The extradition hearing was opened on 19 January and adjourned on various occasions. A full hearing was held on 19 May, and the learned judge delivered a written judgment, leading to the order under appeal, on 2 July.

4

Before the judge and in this court the appellant opposes extradition on the grounds of:

(1) Delay leading to “oppression” within the meaning of section 14 of the 2003 Act;

(2) Because of a claim of breach of Article 3 of the European Convention on Human Rights because of the risk for his life and/or ill-treatment on his return to Poland; and

(3) Because of infringement of his right to family and private life, contrary to Article 8 of the same convention.

5

The appellant's case is based, so far as oppression and Article 3 are concerned, upon the anticipation of serious violence and harm potentially at the hands of a man called Mariuz Szwarc, who is the ex-partner of his sister. Both the appellant and his family on the evidence have had some experience of significant violence from this man in the past.

6

The appellant's evidence on the matter before the learned judge is summarised in her judgment in the following terms:

“The Defendant's evidence was that he and this individual used to be friends. The man had been violent to his partner (the Defendant's sister) and had been violent to the Defendant. On one occasion he had beaten the Defendant badly damaging his teeth. The Defendant had called the police who had attended and were willing to prosecute the individual. The Defendant had not provided a statement to the police, as they requested, because his sister had begged him not to and had asked him to withdraw the allegations. His sister is no longer living with this partner but continues to live in Poland. The Defendant accepted he had visited Poland every year since he left and one year had lived for three months at his father's address in Poland, an address known to his sister's ex-partner. On none of these visits had he received contact or ill-treatment from this person. Although this individual has served prison sentences in the past his present whereabouts are unknown but he is believed to be living in the community in Poland”.

7

The appellant has applied to rely upon fresh evidence as to the past violence, of which this individual is capable, by way of a statement dated 21 October of this year from his sister, coupled with a further statement in which the sister deposes to her inability to be present and provide evidence at the time of the extradition hearing, because of difficulties with this same man with whom she was embroiled in disputes over their children in the Polish courts. I have read both those statements (to use the Latin phrase) “de bene esse”. The statement deposes to this lady's ill-treatment by Szwarc and to his threats to get even with the appellant, whom it is said he holds responsible for informing the Polish authorities of his whereabouts on one occasion, and causing his subsequent incarceration. It is said that Szwarc's contacts in the criminal fraternity are such that he would be able to trace the appellant and procure the fulfilment of his threats if the appellant were returned to custody in Poland.

8

The Article 8 claim is based, it seems, upon the potential separation from his mother, to whom he rendered significant help with her neurological problems, and separation from other members of his family here. Also, as has perhaps been more fully stressed by Mr Henley this morning, upon his fear of violence itself constituting a further potential infringement to his private life under Article 8. The learned judge's finding in respect of the Article 3 point was as follows:

“The Defendant's own evidence shows that when the Polish Authorities were informed they acted. They were willing and able to protect their citizens and only the Defendant's failure to support his own complaint and sign a statement prevented the authorities proceeding with a prosecution. I find the Defendant's concerns are exaggerated and misplaced given that he has returned regularly to Poland and stayed up to three months at an address known to this individual without further incident. The feared ill-treatment does not amount to ill-treatment of sufficient severity so as to engage Article 3. I also bear in mind that this Defendant is being returned to custody in Poland to serve his prison sentence. The individual is at large in the community. There is no evidence that the Polish Authorities would not take appropriate steps to protect the Defendant if the individual concerned were to be sentenced to imprisonment in the future. I do not find that the Defendant has shown substantial grounds for belief there is a real risk of his being subjected to ill-treatment of sufficient severity so as to engage Article 3 if he were to be extradited.”

As to Article 8, the judge's findings were these:

“So far as the Article 8 submission is concerned, the Defendant is separated from his wife and she cares for their child although the Defendant sees his small child regularly. His mother has a difficult situation with her health. She receives help from other family members, her young children's father, a family friend and the UK Authorities all of which will continue if the Defendant is extradited.”

9

On the appeal, as I have indicated, the grounds argued are again delay, causing “oppression”, under section 14 of the Act, Article 3 and Article 8, and in his skeleton argument Mr Henley seeks permission to amend his grounds of appeal to add the following grounds:

“i. the learned DJ [District Judge] erred in law in that she misdirected herself as to the correct test for determining whether the interference with family life and appears to have applied an exceptionality test.

Ii. the learned DJ [District Judge] erred in law and in fact in finding that the Appellant entirely brought about the passage of time by his own actions in deliberately leaving Poland in that the DJ [District Judge] failed to properly consider [I think he means properly to consider] that the Appellant was acting under duress of the threat to his safety by a non-state agent.”

Section 14 of the Act provides as follows:

“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have —

(a) committed the extradition offence (where he is accused of its commission), or

(b) become unlawfully at large (where he is alleged to have been convicted of it)”.

This section, as is well-known, has been authoritatively considered and interpreted in the case of Kakis v Republic of Cyprus [1978] 1 WLR 779 at 782 by Lord Diplock where the learned Lord said this:

“'Unjust' I regard as directed primarily to the risk of the prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair.”

I close the quotation at that point not failing to take into account the further passage cited by Mr Henley in his helpful skeleton argument continuing that quotation.

10

In my judgment there certainly was not any relevant or culpable delay by the requesting authority, as demonstrated by the factual summary that I have already given. The authorities took steps to enforce the sentence within the period of suspension and instigated the appropriate procedure to activate the sentence. As the judge said in her judgment on page 3:

“The Defendant in giving his evidence stated that he had been present at the original court proceedings, pleaded...

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