Sylwester Hojden v District Court, Gorzow, Wielkopolski, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 04 November 2022 |
| Neutral Citation | [2022] EWHC 2725 (Admin) |
| Docket Number | Case No: CO/2151/2020 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2725 (Admin)
Mr Justice Lane
Case No: CO/2151/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an Appeal under Section 26 of the Extradition Act 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Malcolm Hawkes (instructed by Langfield Law) for the Appellant
Ms Hannah Burton (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 5 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg ).
A. INTRODUCTION
The appellant appeals with permission against the decision of District Judge Ezzat on 9 June 2020 to order the appellant's extradition to Poland, in order to serve a sentence of 1 year six months imprisonment in respect of three offences of theft from motor vehicles, committed between 30 and 31 July 2015. The appellant and his brother broke the windscreen of a vehicle and stole items from it. These included car keys to a second vehicle, which they entered, stealing various items including a laptop computer, a smartphone, personal documentation and debit cards. The appellant and his co-defendant also broke the windscreen of a third vehicle and stole various items from it.
According to the judgment of the District Judge, the appellant was interviewed about the offences of 9 December 2015 and held in pre-trial detention between 6 and 12 July 2017. He was interviewed again on 12 July. He denied the offences. He was placed under an obligation to report once a week to the police. That condition came to an end on 16 May 2018. According to the appellant, however, he came to the United Kingdom in August 2017.
The sentence of 18 months imprisonment was imposed on 13 September 2018, becoming final on 9 October 2018.
The appellant was required to surrender to that sentence on 14 November 2018, but failed to do so. Accordingly, an EAW was issued on 18 September 2019, once it had been established that the appellant had left Poland.
B. THE HEARING BEFORE THE DISTRICT JUDGE
Before the District Judge, the appellant (who was not then represented by Mr Hawkes) raised a single ground; namely, section 21 of the Extradition Act 2003/Article 8 of the ECHR. The appellant's case was that his extradition would constitute a disproportionate interference with his (and, presumably, his family's) right to respect for private and family life.
The appellant adopted his proof of evidence. He confirmed that he had come to the United Kingdom in August 2017 “to work and to support my family”. His Polish partner and his daughter joined the appellant in the United Kingdom in the summer of 2018. They now have a second daughter, born in the United Kingdom.
The appellant said that “the only offences I committed in Poland were …the offences in the Warrant which is theft from three motor vehicles during one night on 30 July 2015. I regret these offences”.
The appellant went on to say that his elder daughter was sickly and, since she needed special powdered milk that was expensive, he “committed the offences out of desperation”. He said that when he was apprehended “I admitted my crime. I eventually received a sentence of 18 months. My brother also received the same sentence but his was suspended and mine was not”.
The appellant told the District Judge that he found out about the sentence in September 2019, from his brother. Prior to the sentence he had paid restitution for the offences. The appellant “had thought that the sentence would be suspended as it was my first offence”.
In an addendum proof of evidence, the appellant said that there was an error in his previous proof. Instead of reading “I did admit my guilt”, it should have read “I did not admit my guilt”. The appellant had paid compensation through his brother after he learned of his sentence.
The District Judge also heard evidence in the form of an unchallenged statement from the appellant's partner. She said that the appellant “regrets the fact that he stole items from vehicles in Poland”. She did not plan to return to Poland as “we are settled in the UK and I pray [the appellant] is [allowed] to stay here with us”.
C. THE DISTRICT JUDGE'S JUDGMENT
At paragraph 18 of his judgment, the District Judge noted that most of the evidence given by the appellant was unchallenged. It was common ground that the effect of extradition “will be negative”. On balance, so far as concerned the issue of the appellant's knowledge of the proceedings, the District Judge said he was “more inclined to accept the timeline as set out by the [respondent]”.
From paragraph 22, it is clear that the District Judge was sceptical of the appellant's evidence that part at least of the reason why he did not receive letters from the police concerning the offence was that he had been “deregistered from his parent's address”. The District Judge noted that “despite ample opportunity to obtain proof supporting this assertion, none has been put before the court”.
At paragraph 23, the District Judge concluded that the appellant “knew of the proceedings” before the point at which he said that his brother had told him about a sentencing hearing, to be held the following day.
At paragraph 25, the District Judge reminded himself of the case of Polish Judicial Authorities and Celinski and others [2015] EWHC 1274 (Admin). At paragraphs 27 to 31, the District Judge set out the factors in favour of extradition. As regards the public interest in extraditing those convicted of crimes, in order to serve their sentences, the judge specifically noted that the weight to be accorded to that interest “varies according to the nature and seriousness of the crime involved”. He considered that the crimes in the present case were “not the most serious”.
At paragraph 28, the District Judge said that the United Kingdom should honour its international obligations and should not become a safe haven for fugitives. Mr Hawkes particularly relies upon this passage.
At paragraph 29, the District Judge noted the observations from the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic [2012] UK SC 25, that it is likely the public interest in extradition would outweigh Article 8 rights “unless the consequences of the interference of family life will be exceptionally severe”.
At paragraph 30, the District Judge noted that the appellant had been living in the United Kingdom for only a relatively short period of time and his family had been living in this country for even less time. The appellant's partner had demonstrated she had been able to care for their elder daughter whilst the appellant and she had been apart. At paragraph 31, the District Judge considered that, although during that time the appellant was providing financial support to his partner and daughter, “this demonstrates that [the appellant] and [his partner] are adaptable and have made pragmatic choices in order to raise their family even if that means them living in different countries for an extended period of time”.
At paragraphs 32 to 37, the District Judge set out the factors militating against extradition. The offences were of some age and were not of the most serious nature. The District Judge noted that the appellant “has no previous convictions in the UK or elsewhere, other than the matters to which Poland is seeking his return”. The appellant had remained in full time employment for the past twenty months and was the sole provider in terms of income for the family. If extradited, the appellant's partner would struggle to continue with her life in its current form. That was not, the District Judge considered, “in any way different to most families should they lose a key member, especially if that key member is the main breadwinner”. Changes would have to occur in the family setup “that may include relocation”. In paragraph 36, the District Judge went on to say that this “may result in them having to move back to Poland”. The appellant had lived in the United Kingdom for less than two years. The elder daughter had lived most of her life in a country other than the United Kingdom and the younger daughter was of an age when she would have no real comprehension of the country that she is in. The District Judge noted that the financial impact on the family “is likely to be considerable”, particularly since the partner did not work.
At paragraphs 38–45, the District Judge set out the reasons why he had decided that extradition would not be a disproportionate interference with Article 8 ECHR. He said that it was not for him to determine whether the appellant “was acting nobly when he broke into cars in July 2015” in order to provide for his family. It was not for Westminster Magistrates' Court to go behind the sentence imposed in Poland.
At paragraph 39, the District Judge noted that both the appellant and his partner had chosen to settle in the United Kingdom “knowing that he had outstanding criminal matters in Poland”. He also considered that they “chose to have a second child in the knowledge that the matter in Poland was unresolved”. Mr Hawkes makes criticism of that last finding.
At paragraph 40, the District Judge emphasised that he did not make light of the struggles that the appellant's partner would face in raising her children without the appellant's support for the period when he was serving his sentence. Such difficulties were not, however, insurmountable. Despite the age of the parents of the partner, the District Judge did not consider that they could be ruled out “as a source of strength and support” during that time.
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