Wojciech Wisniewski and Others v Regional Court of Wroclaw, Poland and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Mr Justice Holroyde |
| Judgment Date | 02 March 2016 |
| Neutral Citation | [2016] EWHC 386 (Admin) |
| Docket Number | Case No: CO/5756/2015 Case No: CO/5997/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 March 2016 |
[2016] EWHC 386 (Admin)
Lord Justice Lloyd Jones and Mr. Justice Holroyde
Case No: CO/5756/2015
Case No: CO/5828/2015
Case No: CO/5997/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alun Jones QC and Laura Herbert (instructed by O'Keefe Solicitors) for Mr. Wisniewski
Alun Jones QC and Natasha Draycott (instructed by Lawrence & Co.) for Mr. Sapor
Alun Jones QC and Michael Goold (instructed by Legal Solutions Partnership) for the Miss Wirynska
John Hardy QC and Julia Farrant (instructed by the Crown Prosecution Service) for the Respondents
Hearing dates: 11 February 2016
There are before the court three appeals against extradition orders in conviction cases made pursuant to Part 1, Extradition Act 2003 which raise similar issues as to the availability of the bar to extradition on grounds of passage of time under section 14 of the 2003 Act in circumstances where the requested person had left the requesting State (Poland) whilst subject to a suspended sentence of imprisonment which has subsequently been activated.
The appeals
Wisniewski v Regional Court in Wroclaw, Poland
The extradition of Wojciech Wisniewski is sought by the Regional Court in Wroclaw, Poland pursuant to a European Arrest Warrant ("EAW") issued on 29 May 2014 and certified by the National Crime Agency on 6 May 2015. He was arrested on 14 July 2015 at his home in Bognor Regis, West Sussex and produced for initial hearing at Westminster Magistrates' Court. He has been on conditional bail throughout the proceedings. The extradition hearing took place before District Judge Grant on 4 November 2015 and on 20 November 2015 District Judge Grant made an extradition order. He now appeals against that order.
The EAW is a conviction warrant. The appellant is sought to serve a suspended sentence of two years' imprisonment imposed on 27 March 2001 and implemented on 2 September 2005 for the following offences:
(1) Fraud by false representation committed in the course of his employment on sixteen occasions between September and November 1999, the total value of the fraud being 6,600PLN;
(2) Theft from his employer between 4 September and 29 October 1999, the total value of the theft being 4,602 PLN.
At box F the EAW gives the following account in relation to the Appellant's involvement in the proceedings in Poland:
'Under the binding sentence of the District Court… dated 27 th March 2001… Wojciech Wisniewski was sentenced to a cumulative custodial sentence of 2 years. He attended the main trial which led to rendering the judgment, and was present when the judgment was proclaimed.
Under the sentence dated 2 nd September 2005… the execution of the said penalty was ordered, as during the probation period the convict evaded the probation officer's supervision, and failed to make any payment by virtue of the duty imposed on him.
The convict, summoned to arrive in prison in order to serve his sentence, failed to comply with the court's order. The search activities carried out as a result proved unsuccessful. As a consequence of the person hiding from justice, under the decision dated 6 th December 2006, the District Court for Wroclaw-Srodmiescie ordered his search under an arrest warrant.
Having the foregoing in mind, the District Court for Wroclaw-Srodmiescie, competent for the enforcement proceedings, requested of the Circuit Court in Wroclaw that a European arrest warrant for the said person be issued.'
The EAW further states that a domestic warrant was issued for the Appellant's arrest on 6 December 2006.
The Requesting Judicial Authority served further information in these proceedings on 12 August 2015. This stated that:
(1) The appellant was interviewed and pleaded guilty in the preliminary proceedings and before the court.
(2) He was present when sentence was passed.
(3) He was informed of his obligation to appear at any summons during the course of court proceedings and to notify the authorities of any change of address. He was under this obligation during the course of his sentence. He was aware of this obligation and signed a document to confirm this.
In his proof of evidence the appellant states that:
(i) He arrived in the United Kingdom on 6 January 2005 in order to settle permanently here with his family and that prior to that he was in Sweden for a couple of months working.
(ii) He was present at the trial in Poland on 27 March 2001 at which he was sentenced to 2 years imprisonment with a conditional suspension of its enforcement for a period of probation of 4 years.
(iii) He states that the assertion in the EAW that he made no payments towards the financial penalty imposed is incorrect as he made a part payment on 21 September 2000 (prior to the imposition of the sentence). He accepts that he made no further payments although he explains his attempts to do so.
(iv) He accepts that he was under probation supervision during his suspended sentence.
(v) He was not aware of the activation of his sentence on 2 September 2005 and was thus unable to lodge an appeal or to undertake any other steps prescribed in the Polish Penal Code.
The defence has obtained and served translations of the court judgments from the hearings on 27 March 2001 and 2 September 2005. In its judgment on 2 September 2005 the court at Wroclaw found as follows:
"The evidence gathered in the case file shows that Wojciech Wisniewski, despite the generated income, has failed to pay any amount due resulting from the obligation imposed on him till this day nor has he undertaken any action to agree the repayment terms and conditions with the injured party. Moreover, during the hearing held on 14 th May 2004, the convicted misrepresented that the payment had been made, but when he was requested to produce documents confirming the payment, he failed to do so. Finally he ceased communication with his probation officer failing to inform them about changing his place of residence, without informing anybody about that fact. "
In the court's opinion, the above shows that the convicted not only disrespected the obligation imposed on him, but he purposefully tried to avoid the fulfilment of that obligation — hence, only a decision to execute the conditionally suspended imprisonment will allow to carry out the preventive and educational functions of the penalty.'
In his judgment of 20 November 2015 District Judge Grant summarized the appellant's evidence relating to the payment of his financial penalty which he found it to be 'untruthful and unbelievable.' He commented that the Appellant had appeared to be 'physically uncomfortable' when giving evidence which departed from the account he had given in his proof of evidence.
The District Judge stated that the appellant accepted that he had not informed his Probation Officer of his plan to travel to Sweden and then to the United Kingdom. He said that he had thought his case was closed.
With regard to section 14 of the 2003 Act the District Judge concluded:
"I disagreed with both advocates and find that the requested person is not a classic fugitive but nevertheless a fugitive who was unlawfully at large when he travelled to the United Kingdom."
He had been referred to the judgment of Mitting J. in Pinto v. Portugal [2014] EWHC 1243 Admin., but did not consider this settled law and preferred the approach of Supperstone J. in Budzik v. Regional Court in Tarnow, Poland [2015] EWHC 2856 and that of Ouseley J. in Salbut v. Circuit Court in Gliwice [2014] EWHC 4275 (Admin.). The District Judge therefore found that the appellant was not entitled to rely on the passage of time bar. He further found that the Appellant was "unlawfully at large when he travelled to the United Kingdom." The District Judge concluded that extradition would not be unjust or oppressive.
With regard to Article 8, the District Judge cited Polish Judicial Authorities v Celinski & Ors. [2015] EWHC 1274 (Admin) and set out the factors favouring extradition and those militating against it. Amongst the former he included that the appellant was unlawfully at large when he arrived in the United Kingdom, having failed to repay compensation in full to the victims, having failed to comply with his probation supervision and having failed to report his change of address to the authorities. In referring to the latter he stated that it was not clear to what extent the appellant had failed to comply with the supervision requirement attached to his suspended sentence. The District Judge concluded that the former outweighed the latter, mainly because of the importance of compliance with international extradition obligations, and that a decision to extradite the appellant would be proportionate. He made an order for the appellant's extradition.
Sapor v Regional Court of Poznan, Poland
The extradition of Tomasz Sapor is sought by the Regional Court of Poznan, Poland pursuant to an EAW issued on 20 April 2015 and certified by the National Crime Agency on 19 June 2015. He was arrested on 24 September 2015 at Milton Keynes Police Station and produced for initial hearing at Westminster Magistrates' Court. He has been on bail throughout proceedings. His extradition was ordered by District Judge Grant on 20 th November 2015. He now appeals against that order.
The EAW is a conviction warrant. The appellant is sought to...
To continue reading
Request your trial
-
Zygmunt Niziol v Regional Court in Warsaw (A Polish Judicial Authority)
...is a fugitive from justice applying the familiar principles set out in (for example) Wisniewski v Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin), [2016] 1 W.L.R. 3750. Expert evidence 28 The DJ dealt with the evidence from a number of expert witnesses called on behalf of the ap......
-
Victor – Marian Banica v Pogoanele District Court, Romania
...in their entirety.” 73 At [42]–[43] the judge directed himself correctly by reference to Wisniewski v Polish Judicial Authority [2016] 1 WLR 3750 where Lloyd-Jones LJ (as he then was) said that a person subject to a suspended sentence who voluntarily left the jurisdiction in question, ther......
-
Tomasz Stryjecki v District Court in Lublin, Poland
...introduces the concept of "unlawfully at large", which was recently illuminatingly discussed by Lloyd Jones LJ in Wisniewski v Regional Court in Wroclaw, Poland [2016] EWHC 386 (Admin) at [35] and following, particularly by reference to the common law concept of "fugitive". 23 In the contex......
-
JK v District Court of Lublin, Poland
...principles of law which apply are common ground. In particular, they can be found in the decision of this court in Wisniewski v Regional Court of Wroclaw, Poland [2016] EWHC 386 (Admin); [2016] 1 WLR 3750 in the judgment of Lloyd Jones LJ, as he then was. It is helpful in particular to hav......