Sebastian Szwarc v Circuit Court Gliwice (Poland)

JurisdictionEngland & Wales
JudgeMrs Justice Thornton
Judgment Date04 June 2024
Neutral Citation[2024] EWHC 1337 (Admin)
CourtKing's Bench Division (Administrative Court)
Docket NumberCase No: CO/748/2023, AC-2023-LON-000874
Between:
Sebastian Szwarc
Applicant
and
Circuit Court Gliwice (Poland)
Respondent

[2024] EWHC 1337 (Admin)

Before:

THE HON. Mrs Justice Thornton

Case No: CO/748/2023, AC-2023-LON-000874

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Mary Westcott (instructed by Birds Solicitors) for the Applicant

Gary Dolan (instructed by CPS Extradition Unit) for the Respondent

Hearing dates: 1 February and 1 May 2024.

Approved Judgment

This judgment was handed down remotely at 14:00 on Tuesday 4 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HON. Mrs Justice Thornton

Mrs Justice Thornton Mrs Justice Thornton

Introduction

1

The Appellant appeals against the decision of the District Judge (“Judge”) to order his extradition to Poland to stand trial in relation to the trafficking of drugs between January 2005 – July 2006. The offending is punishable on conviction in Poland with imprisonment of up to 12 years.

2

Leave to appeal was granted on grounds that the Judge was wrong to conclude that:

1) The arrest warrant complies with section 2 of the Extradition Act 2003;

2) Extradition is not barred by section 12 of the Act and the principle of double jeopardy;

3) Extradition is not barred by section 14 of the Act, by virtue of the passage of time; and

4) Extradition is compatible with article 8 of the European Convention on Human Rights.

The arrest warrant and further information

3

The arrest warrant was issued on 30 July 2018, pursuant to arrangements under the Trade and Co-operation Agreement and certified by the National Crime Agency on 7 July 2022.

4

Box B of the warrant records that the decision on which the warrant is based is an enforceable decision on provisional arrest by the Court at Katowice.

5

The conduct underlying the warrant is set out at Box E. Between January 2005 and July 2006 in Zabre and Tarnowskie Góry, the requested person acted with the intention to gain material benefit. At short intervals of time, acting with intent he participated in trafficking in substantial amounts of narcotic drugs and psychotropic substances. Over a dozen transactions he bought no less than 3.5 kilograms of amphetamine, 1 kilogram of hashish and 4500 ecstasy tablets from Rafal Bugajski for the purpose of their further distribution, making this a permanent source of income. The conduct amounts to narcotic offences under Article 56 of the Act on Counteracting Drug Addiction in conjunction with Rrticles 12 and 65 of the Penal Code.

6

Further information issued by the Polish authorities dated 8 September 2022 provides additional detail of the offending as follows:

“ii) The Requested Person is said to be suspected of being involved in trafficking in significant quantities of narcotic drugs and psychotropic substances, in not insignificant quantities. He is accused of placing on the market a total of no less than 3.5 kilograms of amphetamine, 1 kilogram of hashish, and 4,500 extasy tablets. He committed these acts in the Polish towns, named in the warrant, Zabrze and Tarnowskie Góry.

iii) The prosecution began after the collection of full evidence against him. This material had been collected since 12 May 2015. The decision to present the charges against him was issued on 15 September 2017.

……

v) The fact that the Requested Person had committed a crime Polish law enforcement authorities first became aware only on 12 May 2016. After verifying this information and collecting full evidence against him, on 15 September 2017 there was issued a decision to present him with charges.

……

ix) To the best of the prosecutor's knowledge, witnesses to the Requested Person's acts are still available and ready to testify against him.”

The facts

7

The Appellant gave a written statement and oral evidence before the District Judge. His former partner gave a statement and oral evidence. Both were cross examined. Taking the facts from the judgment, the following background is common ground:

a) Between 2003 and 2005 the Appellant was arrested for possessing drugs. He was a recreational drug user at that time. By 2004 his offending had escalated into supplying small amounts of drugs to other men in the area. On 7 March 2008 he was convicted in the District Court in Gliwice and received a sentence of three years imprisonment.

b) After he had served his sentence, he decided to come to the UK in 2010 with the consent of his probation officer. The District Judge found the appellant was not a fugitive from justice.

c) The appellant has lived and worked openly in the UK since he relocated here. He has settled status. He has done various work.

d) He has two children with his former partner. His daughter was born in 2011 and his son was born in 2019.

e) His daughter lives with him full time. His son stays with his mother during the week and with the Appellant at the weekends. The Appellant provides financial and material support to his former partner and has a close relationship with his children.

f) In 2018 the Polish police contacted his mother about his whereabouts. He instructed a Polish lawyer and was told that there an outstanding case against him in Poland.

g) He was arrested on 10 August 2022.

8

Further details of the Appellant's offending in 2008 are set out in the District Judge's ruling, obtained in turn from a Judgment of Gliwice District Court on 7 March 2008 (case reference IV K 217 107). The details are as follows:

i. From 2004 to August 2006 in Tarnowskie Gory and in Strzybnica he supplied marijuana in pipes, amphetamines and ecstasy pills in an unspecified amount and for an unspecified price.

ii. Between November 2005 and March 2006 in Tarnowskie Gory and Bytom he provided Tomasz Szal with drugs, namely two lines of amphetamine and two ecstasy tablets on each occasion.

iii. In June 2006 in Tarnowskie Gory he supplied Amphetamines ten times to Armil Karjowej.

iv. In June 2006 in Tarnowskie Gory he provided Klaudiusz Idzikowski with amphetamines, once or twice.

v. From 2004 to August 2006 in Tarnowskie Gory and in Strzybnica and Bytom he provided Daniel Kwiatkowski with hashish, amphetamines and ecstasy tablets for an unidentified number and price.

vi. From 2004 to August 2006 in Tarnowskie Gory and Bytom, he provided Daniel Kwiatkowski with a line of amphetamine and ecstasy tablets.

vii. In May 2006 in Tarnowskie Gory in the Egipteka disco, he provided a minor, Jerzy Gorny, with an ecstasy tablet.

viii. In April 2006 in Tarnowskie Gory in the Egipteka disco he provided Stanislaw Spinder with a line of amphetamine.

ix. In May 2006 in Tarnowskie Gory in the Egipteka disco he provided Stanislaw Spinder with 5 ecstasy tablets.

9

In his written proof of evidence, the Appellant explained the background to the 2008 offending and its consequences as follows:

“After leaving school I got in with a bad crowd of people and was taking drugs and partying. At some point between 2003 and 2005 I was arrested for possessing drugs. I was a recreational user. I did also have regular work going to a wholesale yard and collecting goods for a lady who ran a grocery store, but that was usually finished by the afternoon.

By 2004 my offending had escalated into supplying small amounts of drugs to other young men in the local area. Essentially it was much cheaper to buy a larger amount and then share it out between us. On 7 March 2008 at the District Court in Gilwice I received a sentence of 3 years, reduced from 4 years on appeal, for a number of these offences, committed between 2004 and 2006…”

(Underlining is the Court's emphasis)

10

At the hearing before me, Counsel for the Appellant and Respondent who appeared before the District Judge checked their notes of the oral evidence given by the Appellant before the Judge. There was agreement between them that the Appellant gave unchallenged oral evidence that he had admitted to additional drug related activity beyond that set out in the 2008 charges, in order for all matters to be dealt with in 2008.

The decision of the District Judge

11

In relation to Ground 1: The Judge reminded himself of the relevant legal principles, which are not in dispute at ¶20 – 23 before concluding that the arrest warrant and further information contained sufficient particulars of the alleged conduct to satisfy the requirements of section 2(4)(c) of the Extradition Act (¶19). Whilst the warrant contains a short and concise statement of the allegation, it is supplemented by the contents of the further information of 8 September 2022 which confirms that the requested person is suspected of being involved in trafficking in significant quantities of narcotic drugs and psychotropic substances in not in significant quantities. He is accused of placing on the market no less than 3.5 kilogrammes of amphetamine, 1 kilogramme of hashish and 4500 ecstasy tablets. He committed those acts in the Polish towns of Zabrze and Tarnowskie Gory. The Judge went on to address and reject the submissions advanced on behalf of the Appellant to the contrary, at ¶23–29 including the submission that further particulars were needed by virtue of the apparent similarity of the offending in the arrest warrant with the Appellant's previous offending in 2008.

12

In relation to Ground 2: the Judge explained that the Appellant relied upon the wider ‘abuse of process’ limb of section 12 of the Extradition Act. He concluded that the conduct for which the Appellant is being sought now is essentially different conduct from that for which he was convicted in 2008 (¶48). He explained his reasons as follows:

i) He accepted there was an overlap in the offending in terms of the time period, albeit not an exact one (¶49).

ii) He also accepted that the location of Tarnowskie Gory was the same in the 2008 offending and the offending in the...

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