Tomasz Celczynski v Polish Judical Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWHC 3450 (Admin) |
| Docket Number | Case No: CO/66/2019 |
| Date | 12 December 2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3450 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/66/2019
Mr Martin Henley (instructed by AM International) for the Appellant
Mr Ben Joyes (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 10th October 2019
Approved Judgment
Introduction
These proceedings have been brought as an appeal under section 26 of the Extradition Act 2003 against the order of Deputy Senior District Judge Ikram on the 26 th December 2018, ordering the extradition of the Appellant pursuant to an EAW dated 1 st February 2017 and certified on the 16 th February 2017. The EAW relates to a judgment dated the 13 th June 2014 requiring the Appellant to serve a sentence of 10 months imprisonment following his conviction for domestic violence and harassment arising out of incidents with his former wife between October 2011 and May 2012 and May 2013 and October 2013. Submissions are made as to whether or not the EAW satisfies the necessary legal requirements which are set out below. At this stage it is sensible to record that the type of decision which is identified in the EAW is described as follows:
“B. Decision on which the warrant is based:
1. Type of decision: …
— Enforceable judgment:
Issued by the court: Sad Rejonowy in Skarzysko-Kamienna dated on 10 March 2014, it was ordered to execute the sentence with conditional suspension on the basis of the judgement issued by the court: Sad Rejonowy in Skarzysko-Kamienna dated on 13 June 2014.”
The EAW describes the nature of the sentence as follows:
“C. Information on the length of sentence:
…
2. Length of the custodial sentence or detention order imposed:
The ten-month imprisonment
3. Remaining Sentence to be served:
The ten-month imprisonment.”
At the hearing objections were taken on both sides to the submission of evidence and the form in which evidence had been lodged. Rather than resolve that as a preliminary issue it was agreed that all of this material should be received without prejudice to its admissibility, and that the issue of whether or not it should be accepted should be resolved as part of the ultimate decision of the court. That is the approach which has been taken in this judgment which commences by setting out the factual circumstances in relation to the proceedings before the District Judge and resolving the factual issues arising. Thereafter the relevant law is set out and conclusions are reached on the submissions which were made on both sides of the argument.
The proceedings
The Appellant was arrested pursuant to the EAW on the 24 th December 2018 and he was produced before the District Judge on the 26 th December 2018. Pursuant to the duty solicitor scheme Mr Green was identified to represent him at court. There are various accounts before the court as to what happened at the initial hearing. The account provided by the Appellant in his proof of evidence for the appeal is as follows:
“5. On 26 th December 2018 I was seen by the duty solicitor Mr Green who advised me in conference. I then appeared in court before Deputy Senior District Judge Ikram. I had the benefit of a Polish interpreter and Mr Green as duty solicitor.
6. I refused to consent to my extradition. Mr Green then made a bail application on my behalf that was refused by the Judge. The Judge then told me that it would be difficult for me to win the case.
7. I remember that initially a hearing date of 21 January 2019 was proposed. There was then some discussion between the Judge and the lawyers and I cannot now recall much of that detail. I was then taken back to the cell to reconsider my position with regard to consent and the Judge directed Mr Green to give me further advice in the cells.
8. As around 12.00 noon I was brought back into court. Mr Green was not present, and the Polish interpreter told me that he had left court as he had other urgent matters to attend to.
9. The Judge through the interpreter then asked me if I would agree to be extradited to Poland. I did not know what to say. I was looking for advice from my lawyer, however, there was no one to advise me. I was very confused by the question being asked because I had already refused consent to extradition. I know that there was some discussion between the Judge and the Prosecutor, but I cannot remember what was said.”
As part of the preparation for the appeal the Appellant's solicitors contacted Mr Green to obtain his recollection of events on the 26 th December 2018. In an email on the 11 th January 2019 included in the appeal bundle Mr Green provided his recollection in the following terms:
“I recall this case. As you say I was Duty Solicitor on Boxing day.
The Requested Person refused to consent (as he is entitled to).
The Judge on being informed put pressure on him to change his decision and commented that he had no chance of avoiding extradition. He refused to list it for a final hearing on a future date and decided to put the matter back for me to give further advice and told the RP directly that his opposition to extradition was hopeless or words to that effect – I do not have a note of the words used.
I asked that the case be adjourned to the following day as I had a domestic crisis. I pointed out that I was going to be at the Court again as Duty Solicitor for the Extradition court the Judge agreed so I left.
The following day the RP was not in the cells and I was unable to establish what had happened.”
In support of the Respondent's case Mr Nethercott Barnard has provided a witness statement. He is a reviewing lawyer within the Extradition Unit of the Crown Prosecution Service. Whilst he has conduct of the extradition request of the Appellant he did not attend the hearing on the 26 th December 2018 to represent the Respondent. A Mr Chaudri, who has since left the Extradition Unit, represented the prosecution at the hearing on the 26 th December 2018 and Mr Chaudri's Extradition Hearing Record sheet is produced by Mr Nethercott Barnard as further evidence of what occurred before the District Judge. An Extradition Record Hearing Sheet (the “Record Sheet”) records the next hearing date as an adjournment to the 27 th December 2018. In the section of the record sheet that is described as “Outcomes” it records as follows:
“RPAR ic
No issues s.4/7
Consent put – not given
Proceedings opened
Issues – Article 8 (disputes he is a fugitive he was travelling back and forth – Poles were notified of UK address)
Bail opposed – conviction – DA and call out today was ‘domestic incident’, history of convictions of violence, fugitive on face of EAW
Bail app: domestic incident is with new partner's son, attended court in Poland, works in construction has an address which is rented with partner living there for 2 yrs+ one bed flat, subject to residence condition, elec monitored tag 1am–5am, reporting Wembley PS 7pm–10pm, mobile phone number, other usual conditions, no security – no savings, ID card unclear make it a pre-release conditions.
DJ offers RP some views as to prospects of success under Art.8.
Put back for RP to reflect. Mr Green has a personal matter and has to leave.
RP states wishes to consent. DJ goes through EAW and confirms RP does not wish to seek legal advice.
DJ – no issues raised s.4/7, identified offence and sentence to be served of 10M, satisfied provisions of 2003 Act complied with, initially raised Art. 8 argument but RP has committed offences in this country since arriving, relationship but no children, no bars to extradition, satisfied no arguments on ECHR, satisfied that no issues being raised necessary and proportionate to order extradition.
Extradition ordered. Appeal rights outlined – permission needs to be sough within 7 days. Otherwise will be returned to Poland.
RIC.”
The Record Sheet goes on to record directions having been given for future conduct of the matter including a proof of evidence from the Appellant and further information from the CPS in relation to sentence activation and fugitive status. Mr Chaudri had noted that “DJ considers we are on notice of fugitive status being considered FI and it would assist court to have IJA's information.”
Following the hearing on the 26 th December 2018 the Appellant was remanded to HMP Wandsworth where, notwithstanding initial communication difficulties, he was able to lodge this appeal on the 4 th January 2019. In addition to the evidence which he has provided in relation to what occurred at the hearing the Appellant has provided a further proof of evidence dealing with matters concerning the application of Article 8 of the ECHR to his case. In that proof of evidence he explains that he first came to the UK in 2008 and at that time regularly returned to Poland in order to see his former wife and children. He would go every 2–3 months and was keen for his family to join him and settle in the UK. They came in 2009 for 6 months and then 2010 for 10 months. The third occasion they came in 2011 they stayed for around 3 months and problems emerged in their marriage. His wife filed for divorce and it was after that the courts became involved and she reported his behaviour to the police leading to his conviction. He pleaded guilty at court to the allegations against him and received a 10 month suspended sentence. He left Poland to come to the UK on the same day. He was not aware either of any conditions attached this suspended sentence or why that suspended sentence was activated. He accepts in the statement that he has convictions in the UK (having previously said in his first statement that he has none as a result of a misunderstanding). He met his current partner 6 years ago and they have been together in the UK throughout that time....
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