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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mylinski v District Court in Opole, Poland (A Polish Judicial Authority) [2012] EWHC 320 (Admin) (07 February 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/320.html Cite as: [2012] EWHC 320 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		7 February 2012

Tuesday 7 February 2012

MR JUSTICE COLLINS:

1. This is an appeal against a decision of the district judge which was given as long ago as 19 August 2011 whereby it was ordered that the appellant should be extradited in order to serve a sentence totalling three years and nine months' imprisonment (the amount left of a four year sentence) imposed for a number of serious offences of robbery and possession of a firearm.
2. The offences in question were committed in 2003. It seems that the appellant was then dealt with and convicted. That is what he told the lower court, albeit he has told me that he was first acquitted. In either event, there was an appeal (whether by him or by the prosecuting authority is not entirely clear). The result of the appeal was that he faced a retrial. He is adamant that he was not guilty of the offences. He tells me that police officers who gave evidence against him were themselves convicted of offences which appear to have amounted to perjury of one sort or another.
3. In any event, the appellant decided that he was likely to be convicted. According to the record of the hearing before the district judge, he left the country because he knew he would be convicted. The appellant tells me that that is not right; he did not leave for that reason. However, it is plain that he was aware that he was due to be retried and that he deliberately absented himself from the retrial. He was represented by a lawyer, and he has been in touch since with that lawyer. The fact that the appellant says that he is not guilty of the offences is not a matter into which this court can go. It is a matter for the Polish authorities. There is a judicial request for the appellant's return to serve the remainder of the sentence imposed for offences. He was properly convicted of those offences.
4. It is clear from what the appellant said both below and before me that the conviction occurred in his absence. The warrant does not indicate that that is the position, but that is not a matter which is required in terms to be on the warrant in accordance with section 2 of the Extradition Act 2003. What the district judge has to consider is set out in section 20. That involves considering whether the conviction was in absentia and, if it was, whether there was a deliberate absenting by the offender. Although it is not spelt out in the note that I have, it is clear that the only possible decision that the district judge could have reached on the material before him was that the appellant deliberately absented himself from the court in Poland -- whether for good or bad reason matters not. In those circumstances there is nothing in that point.
5. Essentially the appellant raises an Article 8 point. He came to this country in January 2007 with his wife. They have two children: a daughter by his previous marriage and her son by a previous relationship. They have now been here for some time. It seems that for a time both children were looked after by the appellant's mother in Poland, but the children came here later. The appellant has been providing for them, although his wife has also been working. He is afraid, understandably, that they will not be able to cope if he is returned to Poland. His mother is now here and so is not able to look after the children if they go back to Poland. There is no other family in Poland who can assist in that regard.
6. Article 8 is something which must be considered. As the law now stands the threshold is a very high one following Norris v Government of the United States (No 2) [2010] 2 AC 487. However, that case is due to be reconsidered by the Supreme Court in HH some time this term. It is possible that the threshold may be lowered.
7. I have decided that the sensible course to adopt in such cases is to consider whether on a lower standard an Article 8 claim might succeed. If it might succeed, the only proper course would be to adjourn the case to await the decision of the Supreme Court.
8. In the circumstances it seems to me that, even on the lower standard, this is not a case where Article 8 would prevail. True, it is unpleasant for both his wife and their children if the appellant is returned to Poland. But that is inevitable where serious offences have been allegedly or actually committed. I say "allegedly" because there may be circumstance in which on his return he may have to face a trial rather than a sentence of imprisonment. It may be that it is worse for the family who remain in this country if the sentence is to be served abroad rather than in this country. But their only right to be here is dependent, within the terms of the EU, on them being able to work in this country. This country is not a refuge for the families of those who commit offences abroad. That must be borne in mind when a court decides whether a return is a proportionate interference with the family life that undoubtedly exists here. The court must also bear in mind the position of any children. Although I appreciate that they have been here for some time and are in education here, there is no reason in principle why they should not resume education back in Poland if they choose to return to Poland. Alternatively, they can stay here. The appellant's wife works. She may have difficulty in maintaining the family, but there are benefits which may well be available to her.
9. In all the circumstances I am not persuaded that the situation is such that, even on a lower standard, it would be disproportionate to return to Poland. In those circumstances this appeal must be dismissed.