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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 >> Piotrowicz, R (on the application of) v Regional Court of Kielce, Poland [2012] EWHC 419 (Admin) (10 February 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/419.html Cite as: [2012] EWHC 419 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		10 February 2012

1. MR JUSTICE COLLINS: This is an appeal against a decision made as long ago as 27 January 2011 by District Judge Tubbs in the Westminster Magistrates' Court ordering that the appellant be returned to Poland in order to face the service of just under 18 months' imprisonment, which was imposed for an offence of theft committed as long ago as 2000.
2. The reason why there has been such a delay in this appeal which was lodged last February coming to this court is because in the meantime the appellant has made an application to the President of Poland for clemency. That application is essentially based, as I understand it, on two important factors. First and foremost, that he has established a life in this country with his wife and children. His wife has serious medical problems, inasmuch as she was diagnosed as having cervical cancer or possibly a precancerous condition. That involved in due course a hysterectomy which was carried out in Poland, and she has half-yearly check-ups because of her condition. It led to an understandable degree of depression and difficulty in her coping. The appellant is and was the breadwinner. He has worked ever since he arrived in this country in early 2004. There are three children, the eldest of whom I think is now about 14, all of whom have been at school in this country and who are obviously settled here, and for whom there would be a real disruption if their father was sent back to Poland and had to serve the sentence of, as I say, some 18 months' imprisonment.
3. The matter came originally before Ouseley J on 10 May 2011 when he was told that an application for clemency was being made or about to be made, and he adjourned on that basis. That application was in fact lodged with the President of Poland on 19 July. There was a hearing the following day before Owen J and he adjourned, again on the basis that the application was being considered.
4. It seems that the District Court and the Regional Court (the Regional Court being the appeal court) had been asked to suspend or to take action to avoid the sentence being imposed and had indicated a not unfavourable approach, but had taken the view that they had no power. Whether or not that was in truth their view, certainly they refused to make any order the effect of which would be to suspend or to stay in any way the application of the sentence. Indeed, in those circumstances, so far as this court is concerned, the information that has been given to this court by the Polish authority is that this is an arrest warrant which is still valid and which the court is still pursuing, whatever may in due course be the decision on clemency by the President.
5. Unfortunately, it was indicated in July that it might take some time; it might be a matter of months before the clemency decision was reached. We are now in February 2012, some six or seven months later, and still no decision has been made. Indeed, the appeal was before the court again in November and was again adjourned on the basis that it was hoped that a decision of the President would come in a relatively short time. As I say, it has not.
6. Mr Henley applied in the circumstances for a further adjournment, saying that there was this application, there was what appeared to be a relatively sympathetic approach from the court, and in those circumstances it would be wrong to order his extradition because it might well be that it turned out to be ineffective, in the sense that when he reached Poland he would find that he would not have to serve the sentence.
7. I should add, I said there were two grounds for the application, the first being the Article 8 ground. Secondly, the appellant says that he has in the meantime paid back the victim of the theft which was the subject of the allegation made against him.
8. I should say that Mr Henley, in my view rightly, has not raised any argument based on section 14 of the Act: (length of time). I do not need to go into the whys and wherefores. Clearly, the appellant, through his own fault to an extent, was apparently, he says, not present at and unaware of the appeal hearing. He was convicted in his presence and sentenced. He appealed, but he did not attend the appeal. However, the decision of the lower court was upheld on appeal.
9. The matter of Article 8 was not raised in the lower court, by which I mean it was not put before the court by the solicitor who was then representing the appellant as a basis for refusing extradition. What happened, apparently, was that the appellant did raise with his solicitor the matters which he now relies on, although it may be that his wife's condition was not sufficiently emphasised for the solicitor to be aware of it.
10. The judge indicated that, as the law then stood -- and the law still stands, subject to the possible variation by a decision due to be reached by the Supreme Court shortly based on Norris v United States -- that the threshold for saying that removal is not proportionate within Article 8 is a very high one indeed. Putting it broadly, it is only in the most exceptional case that an Article 8 lack of proportionality in extradition would prevail.
11. As I say, in R (HH) v Westminster City Magistrates' Court, which the Supreme Court is due to deal with some time this term, it is going to be argued that Norris sets the threshold too high, particularly where children's rights are concerned. Indeed this is a case clearly where children's rights are concerned, as I have already indicated.
12. My view is that if I were persuaded that it was only because of the high standard of Norris -- and incidentally it was that that led Mr Levy, who was representing the appellant below, to take the view that the argument was one which could not succeed -- then if, as I say, it was only because of the Norris threshold that Article 8 would fail on the argument put forward by the appellant, then I would adjourn this and wait to see what the Supreme Court decided.
13. However I have to take this approach, as it seems to me. Adopting proportionality as the test (as indeed it is), where one is dealing with the serving of a sentence properly imposed in the country seeking extradition, then it inevitably would take a very strong case to justify saying that it was not proportionate to extradite.
14. Inevitably, where criminal offences are committed, if the offences are serious enough to attract a sentence of imprisonment, there will be an adverse effect upon the family and if there are children, upon them. True it is that there is the added factor where there is extradition of uprooting children from the country where they have been settled, perhaps for a number of years. Indeed, in this case it is for a number of years. That is an added problem that extradition throws up, additional to the problem that exists if there is a domestic incarceration.
15. Nonetheless, the reality is that the extradition procedure is designed to recognise the importance of complying with the judicial decisions of all States within the European Union, and each will mutually recognise the validity of the other. Here, I know that there has been an application to the Polish courts to suggest that there should be a deferment, or a suspension, or possibly (if that is something that can happen) a reversal of the original judgment.
16. But the courts have decided, for reasons which seemed good to them, and which I cannot go behind (it would be quite wrong for me to seek to do that) they are pursuing the arrest warrant. There is a valid sentence of imprisonment. Despite the matters raised before it and despite its apparent sympathy for the application for clemency, nonetheless the matter is to be pursued.
17. Mr Henley has criticised the Polish courts, indicating that in all the circumstances what they ought to have done was to withdraw this warrant, wait and see what the President's decision was and then, if the President's decision was adverse, no doubt if they thought it right issue a further warrant. If of course the President exercised clemency then the matter would end there.
18. I do not find it possible to justify criticising the court on that basis. I do say, however, that there does seem to be a degree of merit, on the face of it, in the appellant's case, based upon the life he has set up here, the effect on his children and (if it be the case) the fact that he has repaid the value of the goods which he stole. Of course, one must bear in mind, although lapse of time is not relied on in itself, the fact that this is an ancient conviction when he was much younger, and he has not committed any offences or behaved in any way contrary to the law in this country.
19. So one does have an enormous degree of sympathy with him. But, having said that, there is I am afraid no reason in principle why the family should not go back to Poland. Indeed, his wife has gone there for her treatment. True, it would be an uprooting of the children, but they have no absolute right to remain and be brought up in this country. It is only if he is exercising his or his wife is exercising her rights to work or to seek work in this country that they have the right to stay here. They are Polish nationals all of them. The alternative of course may be that if he is returned and if he persuades the court or the President to come down in his favour, it may be that he will not have to serve the whole or even part of the sentence and thus the separation will be a short one.
20. But sympathetic though I am, it is not a proper basis, in my judgment, for saying that there is a lack of proportionality in a decision to dismiss this appeal. I am afraid that is the decision which I reach.
21. I have indicated some sympathy. I do think that the judicial authority may like to consider, having regard to my expressions of sympathy, whether, even though this appeal is dismissed, they feel it appropriate to carry on with the extradition. Because it would be open to them, even at this late stage, if they thought it appropriate -- and I am not dictating, I cannot and do not -- not to demand his return, and even at this late stage to withdraw the warrant without prejudice to it being reinstated later. That is, I emphasise, entirely a matter for them. But, as I say, particularly if they have themselves exercised some sympathy -- and it does seem that there has been rather a long time in the President reaching his decision -- that is a course that would still be open to them.
22. However that is as far as, I am afraid, I am able to go. As I say, this appeal is dismissed.
23. Mr Henley, you are perfectly welcome to make those observations of mine available to --
24. MR HENLEY: I am grateful, my Lord. I think it is an important expression of the court's feelings on the matter, and of course I will invite Mr Grandison to make that known to the judicial authority.
25. MR JUSTICE COLLINS: I am sure he will. But I do emphasise that I am not in any way purporting to nor could I make any direction to that effect.
26. MR HENLEY: Indeed, my Lord, and that's clear on your judgment. But I am very grateful for the expression that you gave and I am sure that Mr Piotrowicz will be grateful for those comments.
27. MR JUSTICE COLLINS: I am sorry I cannot go further.
28. MR HENLEY: Thank you. The only thing I would ask, my Lord, is for a legal aid order for my costs.
29. MR JUSTICE COLLINS: Yes, of course.
30. MR HENLEY: Thank you.
31. MR JUSTICE COLLINS: Yes. Thank you.