Tomasz Stryjecki v District Court in Lublin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] EWHC 3309 (Admin) |
| Docket Number | Case No: CO/4028/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 December 2016 |
[2016] EWHC 3309 (Admin)
Mr Justice Hickinbottom
Case No: CO/4028/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mary Westcott (instructed by Lansbury Worthington Solicitors) for the Appellant
Benjamin Seifert (instructed by CPS Extradition) for the Respondent
Hearing date: 13 December 2016
Approved Judgment
Introduction
This is an appeal against the decision of District Judge Zani of 19 August 2016 to order the Appellant's extradition to Poland, brought with the permission of Dingemans J granted at an oral hearing on 25 October 2016.
Poland is a category 1 territory, and thus Part 1 of the Extradition Act 2003 ("the 2003 Act") applies. The application for the Appellant's extradition is based upon two conviction European Arrest Warrants ("EAWs") issued by the District Court in Lublin, Poland. The first in time of issue ("EAW1"), issued on 4 April 2006 and certified by the National Crime Agency on 16 October 2014, is in respect of a two year six month sentence imposed on 6 November 2003 for the theft of a television and PLN 1000 in cash from a bar on 7 January 2000. In respect of those offences, the Appellant was both convicted and sentenced in his absence. The second warrant ("EAW2"), issued on 29 July 2014 and also certified on 16 October 2014, is the second in time of issue but relates to an earlier conviction for a commercial burglary committed on 8–9 January 1998, for which the Appellant was sentenced on 25 October 1999 to two years' imprisonment suspended for five years. That sentence was activated on 23 March 2004. No part of either of those sentences has been served.
Miss Westcott for the Appellant relies upon three grounds, namely:
(i) The District Judge erred in finding that it would not be unjust and/or oppressive to extradite the Appellant due to passage of time, and consequently holding that the Appellant's extradition was not barred by the passage of time (section 14 of the 2003 Act). In particular, it is said that he erred in finding, in relation to both EAWs, that the Appellant was fugitive, and thus he could not rely upon any significant part of the lapsed time for these purposes.
(ii) In relation to EAW1 only, the District Judge erred in finding that the Appellant deliberately absented himself from his trial (section 20 of the 2003 Act).
(iii) The District Judge erred in finding that extradition would not constitute a disproportionate interference with the rights of the Appellant and his family under article 8 of the European Convention on Human Rights ("the ECHR") (section 21 of the 2003 Act).
The Factual Background
The Appellant was born on 20 August 1980. He is therefore now 36 years of age. He is a Polish national. In 1996, when he was 15 years old, he met his future wife Dorota Romanuik. On 17 January 1998, they were married. Their son was born on 31 May 1998. They lived with the Appellant's parents at the family home, an address in Chopina Street, Lublin.
On 8–9 January 1998, a week before the Appellant's wedding, the offices of a firm called Boka Company sc were burgled, and computer and other electrical equipment was stolen to the value of PLN 4,444 (about £1,300). With several others, the Appellant was arrested. Although he denied being involved, he was convicted at a trial at which he was present; and, on 25 October 1999, he was sentenced to two years' imprisonment suspended for five years. The Appellant says that he cannot recall being present when sentenced; but EAW2 states that that was the case. There is no reason to question that confirmation, and I find that he was present. In any event, the Appellant accepts that he knew of the suspended sentence from his mother and, accordingly, he kept in touch with his assigned probation officer.
The conditions of the suspension are not set out in any document. The Appellant of course knew that, if he committed another crime within the suspension period, he would be in breach of the suspension conditions and would be liable to serve the two years' custodial sentence.
Furthermore, as I understand it, the Appellant accepts that he knew that there was an obligation to keep in touch with his probation officer. He makes clear in his statement of 28 April 2015 that he was assigned a probation officer as part of the suspended sentence, that he did not inform the officer of moving to the United Kingdom, but that he wrote to the officer "explaining his circumstances" when he arrived in the United Kingdom. I appreciate that such a condition is not mentioned in the Further Information provided by the Respondent Judicial Authority dated 9 April 2015, in response to a request which included a specific request for the conditions attached to the suspended sentence. However, in the circumstances, it is inherently unlikely that the Appellant would have been in contact with a probation officer other than as the result of an obligation of the suspended sentence to do so. On all the evidence, I am satisfied to the requisite standard that, as a condition of his suspended sentence, the Appellant had an obligation to keep in touch with the Polish probation service; and that he was well aware of that obligation and that, if he were not to comply with it, the sentence was liable to be activated.
Additionally, the Further Information confirms that the Appellant had an obligation attaching to the suspended sentence to notify each change of address. There is no specific evidence that he was told of that requirement. Nevertheless, he was present when he was sentenced, and there is nothing to suggest that he was not then properly notified of all the requirements that were imposed and the consequences of a failure to comply. The Appellant's own evidence on this point is not of any assistance, because he cannot remember even being present at the sentencing hearing which, as the EAW states and I have found, he was. Therefore, I am also satisfied, to the requisite standard, that the Appellant was informed of the obligation to notify the Polish authorities of each change of address; and, again, he was aware that, if he failed to comply with it, the sentence was liable to be activated.
Less than three months later, on 7 January 2000, when the Appellant was 19 years old, some young men stole a television and PLN 1000 from the Alibaba Bar in Lublin. With some friends, the Appellant was arrested and taken to the police station. There, he says he was interviewed and beaten. One of his friends had the television remote control in his pocket; but the Appellant denied he was involved in the theft. The Appellant says that he was the subject of an identification procedure; and he was taken to the Prosecutor's Office, where was told that "they would press charges and the matter would go to court". The Appellant said he would not plead guilty.
He was released; but, again, the conditions upon which that happened are not the subject of any documentary evidence. The Further Information indicates that, in replication of the suspended sentence condition, one obligation attached to his release was that he notified each change of address. It seems that the Appellant accepts that, on release, he gave a "registered address", i.e. with his parents in Chopina Street. I am again satisfied that he was told of the obligation to notify a change as a condition of his release. In any event, thereafter for two months, the Appellant says that he stayed at his "registered address".
The Appellant was a building worker. His brother was living in England, and he found a job for the Appellant on a building site. The Appellant says that he regarded this as a good opportunity to earn some money to keep his family. On 3 March 2000, two months after his arrest in relation to the bar theft, under his own passport, he travelled by bus to London, "for economic reasons". He says that he was under no obligation to remain in Poland – and there is no evidence before me that he was under such an obligation. Although he did not tell the Polish authorities (including his probation officer) that he was moving to the UK before he left Poland, he says that he wrote to the officer telling him of his move to the UK once he was here, presumably at some time in mid-2000. He did not keep a copy of any letter sent, and the Polish authorities have no record of it. There is no evidence that it was ever received. It is not clear whether that letter contained the Appellant's then-current address – presumably, that of his brother (see below) – but, for the purposes of this appeal, I shall assume that that letter was sent and that it did contain that address, although it does not appear to have been received. There is no evidence that the Appellant contacted, or attempted to contact, the Polish probation officer – or notified any change of address – at any time thereafter.
Initially, in the UK, the Appellant stayed with his brother. His wife and their child joined him a year later. They all stayed with the Appellant's brother for a while, before moving to their own rented accommodation. In May 2006, they moved to different rented accommodation at an address in London NW2, where they still live.
In the meantime, the Appellant was prosecuted in Poland for the theft from the bar. The EAW states that the trial was on 6 November 2003. The Appellant did not attend, although the Further Information says that:
"… [H]e was properly notified about the trial date. The Police regularly searched the sentenced through visiting his place of whereabouts in order to detain him at the place of his register, that Lublin, street Chopina 11/2."
That translation is less than perfect. However, it seems from...
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