Tadeusz Weszka v Regional Court in Poznan, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 10 February 2017 |
| Neutral Citation | [2017] EWHC 168 (Admin) |
| Docket Number | Case No: CO/6291/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 February 2017 |
[2017] EWHC 168 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Blake
Case No: CO/6291/2015
In The Matter of an appeal Pursuant to S.26 of the Extradition Act 2003
Amelia Nice (instructed by Kaim Todner) for the Appellant
Florence Iveson (instructed by CPS) for the Respondent
Hearing date: 10 February 2017
Approved Judgment
Introduction
This is an appeal from a decision of (District Judge) DJ Grant dated 8 December 2015 ordering the appellant's return to Poland on a conviction warrant. The case has the unusual feature that this is the second time that the appellant has been extradited to Poland for these offences.
Between 17 and 31 January 2005 he committed three offences of fraud obtaining credit worth some £600. The appellant then came to the UK where he lived with his wife and two children of the marriage.
In 2010 he was arrested and returned to Poland on an accusation warrant and on 8 July 2010 was given a sentence by the Polish Court of 1 year 6 months imprisonment that was conditionally suspended for five years. He spent just short of three months in custody before sentence. He then returned to the United Kingdom.
In July 2013 the Polish court implemented the sentence of imprisonment in his absence. There was nearly 16 months of the term still to run. A domestic warrant to enforce this order was issued on 7 February 2014 and an European Arrest Warrant was issued on 22 June 2015.
He was then arrested on the EAW on 29 October 2015 and promptly brought before the City of Westminster Magistrates Court. The hearing was put over to December. He was unrepresented at the second hearing. He made an application for an adjournment for legal representation that was refused. Although he gave evidence on his own behalf he had not prepared a witness statement or bundle of evidence and may have confined himself to answering direct questions rather than giving an overview of his circumstances. He now appeals with the leave of the High Court. The question is whether the DJ was wrong in his conclusions that the public interest in extradition outweighed the interference with the appellant's private and family life and was thus justified and proportionate.
At the hearing of this appeal, the appellant seeks to place the following items of fresh evidence before the court:
i) A new translation of part of the arrest warrant.
ii) A detailed psychiatric report into his mental health and additional medical notes.
iii) A witness statement and supplementary updates from himself and his present partner as to his domestic circumstances.
iv) E Mail communications with the Polish court in the spring of 2016.
At the outset of the appeal I indicated that I would receive the first two of these items as fresh evidence not reasonably available to an unrepresented defendant at the original hearing but would consider the remaining items de bene esse pending conclusions on some of the arguments advanced. In the event for reasons given below, I have decided to admit all the evidence in this appeal although I am conscious that the account of the appellant has not been tested in cross examination and the DJ reached an adverse view on much of his account.
It is not possible to remit an appeal by the person to be returned (RP) to the magistrate's court for re-determination; neither party suggested that there was a case for adjourning this appeal to permit cross examination to take place.
In addition to determining the substantive arguments in the case, Ms Nice invited me to give guidance as to the function of the DJ in a case where the requested person in an extradition hearing is unrepresented.
The DJ hearing and decision
The DJ refused the appellant's application for an adjournment indicating that there had been ample time since the last appearance in October to obtain representation. Attached to the respondent's skeleton argument in this case is a helpful typed note of what then ensued.
The appellant indicated that he resisted extradition and was recorded as saying:
i) There were no conditions attached to his suspended sentence. He did not have to report to the probation or the police. As there were no conditions he wasn't in breach.
ii) He informed the Polish court that he was going back to the UK which he considered his home and to his family, the court agreed.
iii) On the day he was discharged / released from prison he got on a coach and came to the UK.
iv) Nobody informed him; they all have his address here but they did not inform him there was a problem.
v) He employed a solicitor and he put forward an application to re-suspend sentence again because of his health problems.
vi) "My health is very bad I had two heart attacks, severe problems with my lungs, asthma and high blood pressure".
vii) "I understood the sentence was 18 months suspended for five years. The time I was in prison up to the hearing that was used instead of paying the court costs. I was in prison for just under three months. They calculated the costs they told me that each day in prison would be about 20 zloty so I was not required to pay any court costs".
viii) It was agreed and discussed with the court and prosecution that he will not have a probation officer in this case because he was going back to England
ix) At this point the DJ interjected and indicated that he has never heard of a suspended sentence that has no conditions. The appellant repeated that there were no conditions because he went to prison voluntarily.
x) The DJ said: No – you were extradited under accusation warrant? A: Yes I was and I went straight to prison and after about three months there was a hearing and I was then released.
xi) DJ: Why impose a suspended sentence that can never be activated? A: the condition was that I would not go back to Poland in this period of time and I stay out of trouble.
xii) DJ: Why not ask your solicitor to make enquires about why suspended sentence was activated? A: The information is not obtainable.
xiii) DJ: that is a ridiculous thing to say? A: that is Polish law.
xiv) DJ: On what do you base that?
xv) DJ: Did you ask lawyer to find out why activated? A: That was the first question I asked, he was not informed. It doesn't say in the EAW why it was activated.
xvi) The appellant then supplied information about his health problems on his return, the breakdown of his marriage, a period in prison here, admission to a psychiatric hospital, a period of homelessness and the fact that he couldn't come to terms with having lost his family. Assistance was given to him by his ex-wife to find accommodation and sought himself out; he now has a good relationship with ex-wife and children who visit and stay every weekend as they live not far away.
xvii) "Everything is going well at the moment I work 4 hours a day as my health does not permit me to work longer. If I am extradited this is like a death sentence here I have life and medical care. I did not receive care in prison in 2010; when I asked for a tablet they did not give it; when I had an asthma attack and asked for an inhaler they said open the window; 16 prisoners in a cell supposed to accommodate four; in the summer extremely hot and basically suffering because of my medical problem. After three weeks I was given an appointment to go see the doctor and was told the doctor was too busy too many patients to see."
xviii) There was no cross examination.
xix) Submissions were made on the balance of competing Article 8 factors. Judgment was reserved.
The DJ's written decision includes the following:
"Although the warrant is silent about the reason for the activation of the suspended sentence the activation took place in 2013 which suggests that the requested person failed to comply with his probation requirement"
He went on to conclude:
"I found Mr Weszka to be an unreliable and unsatisfactory witness on this issue of his sentence and Polish judicial procedure. It sounded very unlikely that he was sentenced to imprisonment subject to a condition that he did not return to Poland. I did not believe him when he said that the term of his suspended imprisonment was not subject to a probation requirement and that his Polish lawyer was unable to find out why his suspended sentence was activated."
"I find that whilst he is not a classic fugitive he is nevertheless a fugitive who was unlawfully at large when he travelled to the United Kingdom after his sentencing hearing in 2013 (sic- in fact the sentencing hearing was in 2010). In reaching that view I was assisted (by) the decision of Mr Justice Supperstone in the Budzik [2015] EWGC 2856 (Admin) which was an appeal against a decision I made in this court."
Errors in the DJ's decision
From the information now available to this court there are a number of problems with the DJ's fact finding.
The decision of the DC in Wisniewski v Poland [2016] EWHC 3896 Admin, makes it clear that being unlawfully at large is an objective requirement calculated by reference to the date when the RP was ordered to return to custody rather than the day he first came to the UK in the knowledge that he was subject to a suspended sentence. The decision of Supperstone J on which the DJ relied to contrary effect was based on a decision of Ouseley that was disapproved on this point at [52]. This does not necessarily undermine the DJ's finding that the RP cannot rely on delay because he had left Poland in breach of the terms of the suspended sentence and in the knowledge that it might be implemented in absentia.
However, for such a fact to be established it is necessary for the requesting state to prove the terms of the sentencing court's...
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