[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Janaszek v Circuit Court In Plock (Polish Judicial Authority) [2013] EWHC 1880 (Admin) (03 July 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1880.html Cite as: [2013] EWHC 1880 (Admin)

[New search] [Printable RTF version] [Help]

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/07/2013

MR JUSTICE FOSKETT:

Introduction

1. This case has had a somewhat chequered procedural history to which I will refer in a little more detail below (see paragraph 15 et seq).
2. The Appellant, who is 36-year old Polish national, faces a European Arrest Warrant ('EAW') arising from two sets of convictions and one set of accusations arising from events in Poland. The EAW was issued on 30 November 2006 and certified by SOCA on 15 April 2007.
3. The Appellant was arrested pursuant to the warrants on 3 April 2012 and the first extradition hearing took place the following day. Bail was refused and indeed the Appellant has remained in custody since that time, various bail applications having been made and refused, primarily on the grounds that there was a substantial risk that she would fail to surrender. An appeal to the High Court was rejected on similar grounds.
4. On 23 October 2012 a full extradition hearing took place before District Judge Coleman at the Westminster Magistrates' Court and on 13 November 2012 he delivered a written judgment ordering her extradition.
5. Throughout the period from her arrest until 13 November 2012 she had been represented by Christian Khan solicitors.
6. She appeals against that decision, an Appellant's Notice having been issued on her behalf by Kaim Todner Solicitors (who she instructed subsequent to the District Judge's decision) on 19 November 2012 based upon provisional grounds of appeal dated 16 November alleging that the District Judge was wrong to have found that her extradition was compatible with her Convention rights under Articles 3 and 8 of the ECHR and that he erred in refusing to discharge her under section 20(7) of the 2003 Act.
7. As will appear the basis for the appeal has shifted somewhat since then, but that was the formal position shortly after the District Judge's decision.

Background

8. The conviction aspect of the EAW relates to a series of 7 offences of dishonesty committed in 1999 to 2000. The particulars of these offences are as follows, the first two relating to one case (Case II K 470/01) and the next five relating to another case (Case II K 15/01):

(1) between 1 September 1999 and 30 September 1999, with the intention of making a gain for herself, [the Appellant] withdrew money from a cashpoint and used a payment card having misled the staff at Powazechna Kasa Oszczędnosci Bank, Płock, Poland as to her intention of repaying the bank;

(2) on 30 March 2000 [the Appellant] gave a juvenile two cheques and ordered him to make the cheques out to Artur Sobczak and falsely [signed] them in her name. She then gave these cheques to Artus Sobczak who cashed them causing a loss of PLN 1000 to the Powazechna Kasa Oszczędnosci Bank, Płock.

(3) Between July and August 2000 in Poland [the Appellant] falsified six official documents with the intention in each case of inducing another person to accept it as genuine and thereby act to his/her detriment.

(4) On 4 July 2000 in Płock, Poland, with the intention of making a financial gain for herself, [the Appellant] falsified submitted a forged notarised deed for the sale of a property in Brudzeń Duźy, Poland to dishonestly obtain a loan of PLN 4000 from Izabela Kallnowska.

(5) Between 4 July 2000 and 1 August 2000 in Płock, Poland [the Appellant] falsified stole^[1][2] a television worth PLN 2000 from Barbara Budka.

(6) In August 2000 in Płock, Poland [the Appellant] falsified stole¹ an identity card belonging to Jacek Toczyski.

(7) Between July and August 2000 in Poland [the Appellant] falsified employment documents relating to the company Jet Laser with the intention of inducing another person to accept them as genuine and thereby act to their detriment.

9. The accusation aspect of the warrant relates to three alleged offences of dishonesty and two alleged offences of making false allegations, all these alleged offences having been committed in 2003 arising from one case (Case II K 839/03). The particulars are as follows:

(1) On 9 April 2003, in Poland, [the Appellant] falsely accused Tomasz Jagodzinski of witness intimidation by alleging that he had threatened her.

(2) On 10 April 2003, in Poland, [the Appellant] falsely alleged in a deposition that Tomasz Jagodzinski had assaulted her and threatened her not to give evidence against him.

(3) Between 17 June 2003 and 30 July 2003, in Poland, [the Appellant] used a falsified identity card in order to obtain three mobile telephone contracts, and to obtain credit from GE Capital Bank, thereby causing loss to those whom she induced to believe that the card was genuine.

(4) On 16 December 2003, in Poland, [the Appellant] used a stolen identity card and forged the owner of the card's signature in order to obtain a cash loan to the value of PLN 1000 from Provident Polaska Bank.

(5) Between August and December 2003 [the Appellant] destroyed two identity cards which did not belong to her.

10. The Appellant was convicted of the five offences arising from Case II K 15/01 on 3 July 2001 and of the two offences from Case II K 470/01 on 23 October 2001. At one stage the Appellant had suggested that she had been convicted in her absence, but the Respondent served Further Information dated 12 July 2012 from the relevant District Court which made it clear that she had been present for her convictions. She does not appear now to maintain the position that she had previously maintained in this regard.
11. In relation to the offences arising under Case II K 15/01 the Appellant was sentenced to 18 months imprisonment conditionally suspended for 4 years and in relation to the offences arising under Case II K 470/01 she was sentenced to 2 years imprisonment also conditionally suspended for 4 years. Her extradition is sought to serve what has been said to be a total sentence of 3 years, 4 months and 2 days imprisonment and, of course, to face trial on the accusation matters. I will return to the issues raised in relation to those matters later (see paragraphs 38-44 below).
12. For reasons, according to the Appellant, to which I will refer below (see paragraph 22), she faked her own death in Poland in July 2004 and in due course came to the UK to join her parents who had moved here with her younger daughter to whom I will refer in the next paragraph.
13. She has two daughters: E who was born on 23 October 1995 and whose natural father is the man the Appellant claims to fear in Poland because of his background in drug-dealing and the influence she says he could bring to cause her death if she was to return to Poland; K who was born on 2 March 2004 and whose father, Mariusz Murawski, is the Appellant's current partner.
14. E moved to the UK to join her mother and the rest of the extended family in 2010. I will return to that later (see paragraph 55).

The history of the present proceedings

15. Following the initial hearing on 3 April 2012 the first listing of the extradition hearing was on 16 April. An application to adjourn was made and granted because Legal Aid had not yet been granted. Her solicitor indicated that the likely issues were to be section 20 and Article 8 as she is the sole carer of two children.
16. The hearing was listed again on 10 May 2012 when the Appellant was unrepresented as Legal Aid has still not been granted. The case was adjourned for 7 days.
17. On 17 May the extradition hearing was listed again. A further application to adjourn was made in order to obtain further evidence from Poland to show that the Appellant was not present at her convictions. Her solicitor repeated that the other likely issues were section 20 and Article 8. The Appellant was ordered to serve a proof of evidence and statement of issues by 7 June 2012.
18. By a letter addressed to the Magistrates' Court dated 11 June 2012 the Appellant sought to explain why she had escaped from her ex-husband 8 years previously and referred to his alleged drug-dealing and the domestic violence she said she suffered at his hands. I need not refer in detail to that letter because the District Judge took a view about the reliability of the Appellant's evidence concerning events in Poland to which I will refer later (see paragraph 28). However, of potential relevance to any Article 8 issues she said this:

"I have two children and my parents are disabled and my being in prison has devastated my family. In Ipswich where I live, I have a clothes shop, a beauty salon and a food trailer. All three of my businesses have been successful up to the point of my incarceration. My being in prison has meant no income for my children. My children attend school here and our lives are now here in the UK. I have never claimed benefits and I pay my taxes. I have built a life here in the UK and if I return to Poland I am as good as dead."

19. On 13 June there was a Review hearing. The Appellant's solicitor identified the issues as section 20 and Article 8. The Appellant was directed to serve a proof of evidence and any evidence from Poland by 21 June 2012 and the extradition hearing was set down for 17 August 2012.
20. On 11 July, during a video link remand, at the Appellant's request the time for serving the proof of evidence was extended to 20 July 2012.
21. On 3 August the Appellant's solicitors wrote to the court to say that the proof of evidence would be served at the next remand hearing on 8 August 2012. At that hearing (also by video link) the Appellant's counsel identified the issues as being double criminality, section 20 and Article 3 and undertook that the proof of evidence would be served by the end of the day.
22. The proof of evidence, when served, was undated. In summary it gave an account of the Appellant's life with her husband over the period of their relationship between 1993 and 2004, culminating in her decision to fake her own death on 4 July 2004. This was, she said, precipitated by an accumulation of threats and violence towards her and her parents by her former husband and his associates. She described how she arrived in the UK with her partner, contacted her parents (who thought she was dead) and how they (her parents) decided to sell up everything in Poland and move to the UK with the Appellant's younger daughter for whom they had taken responsibility following the Appellant's "disappearance". She went on to explain in the statement the circumstances of the wider family as it now is in the UK.
23. The extradition hearing was listed again on 17 August. An application to adjourn the hearing was made in order to obtain translations of Polish documents said to prove that she was not present when convicted in Poland. That application was granted. The other issues identified were Article 3 and section 20 (Article 8 and dual criminality were said to be abandoned). The Appellant was directed to serve any Polish documents by 14 September 2012. The hearing was adjourned until 23 October 2012.
24. On 14 September a 'Statement of Issues' was served indicating that the issues are section 20, Article 3 and Article 8 (on the basis that the Appellant is said to be the sole carer of the two children).
25. On 12 October (just under two weeks before the extradition hearing) the Appellant made a bail application to the High Court referring to her partner who had been involved in a car accident. This application was refused although it is to be noted that in due course District Judge Coleman did accept in his written judgment that the Appellant's partner had sustained a serious injury in a car accident.
26. On 19 October the Appellant applied to vacate the extradition hearing on 23 October in order to obtain further information in relation to her partner's medical condition and her own medical condition (said to be a heart complaint). This was rejected by a District Judge.
27. On 23 October a further application to adjourn the hearing was made to District Judge Coleman. This was on the basis that in the previous two weeks concerns had arisen about K's mental health which required further investigation. That application was rejected, the evidence was heard and, as I have indicated, judgment was reserved until 13 November.

The decision of District Judge Coleman

28. The District Judge heard from the Appellant and her mother, Halina Suska. Their evidence covered all aspects of the background in Poland and the current situation in the UK. The District Judge was plainly not satisfied with aspects of their evidence because he expressed himself thus:

"I found much of the evidence of the [Appellant] and her mother to be unconvincing and unreliable. [The Appellant] is desperate not to be extradited and is prepared to do or say anything that she feels would prevent or delay such a return. The evidence given to this court regarding her life in Poland and her circumstances in coming to this country, lacks credibility and is at best exaggerated. The crimes she was convicted of in Poland are those of a dishonest person, and those she is accused of are crimes of both dishonesty and desperation."

29. His findings in relation to the Article 8 matters as they were advanced before him were as follows:

1. [K] is 8 years old. It seems she has lived for virtually all of her life with her grandparents and her mother. It is misleading for [the Appellant] to describe herself as the sole carer of two children. Since [the Appellant] has been in custody, [K] has remained in her grandparents' care, with help from her father, Mr. Murawski and her sister [E]. [K] goes to school regularly and is, I am told, in good physical health.

I do not have any expert reports about [K]. I do not believe such reports would take this case any further and would result in more pointless delay. The first mention to this court of any significant problem with her was on the 19^th October, when the application I have referred to was made to vacate the final hearing. I note from Ms Suska's evidence to me that she claims to have consulted a psychologist in Poland as to [K's] state of distress. This was revealed for the first time at the final hearing. I am not sure why an expert in Poland was chosen. No further details were given as to the name of the expert or the outcome of the consultation. I do not believe Ms. Suska's evidence on this point. It is yet another example of increasingly frantic last minute attempts to avoid the extradition of the [Appellant].

I readily accept that [K] is upset and very distressed at the prospect of her mother's extradition and imprisonment. Such distress is inevitable and terribly sad. However there is no evidence before me that [K] is any more distressed, disturbed or vulnerable than any other young child in such unfortunate circumstances. There is no evidence before me that she would suffer long lasting psychological damage. I find the evidence of the grandmother to be, at best, greatly exaggerated on this point.

2. It is submitted that other members of the family are so ill that [K's] care at home will deteriorate and she may even have to go into care if the [Appellant] is extradited. Again I find the evidence put before this court in support of that argument to be manifestly unreliable.

Ms Suska has told me of the medical problem she has with her shoulders, to the extent that she cannot care for [K] as she would wish. Documentation from Ipswich Hospital confirms the injury and the surgical procedure that took place in March 2012. She was seen again in June 2012 when she was in some pain. She was referred for physiotherapy and told to return for review in 3 months. I do not doubt that there has been pain and other discomfort. But there is no evidence of incapacity to anything like the extent Ms Suska claims. I do not accept that it would impact greatly on her care of [K].

Mr. Grzegor Suski is said to have serious circulation problems in his legs. Ms Suska also told me he was suffering with bowel cancer. I have no medical evidence before me. I note that Mr Suski has not provided any evidence at all in this case.

Mariusz Murawski clearly sustained serious injury as a result of a road traffic accident. I have read a letter to the court from him dated 30^th October 2012. The medical evidence does not indicate disability to anything like the degree the family would have me believe.

[The Appellant] also claimed to have recent sudden health problems. On 11^th October she was taken from prison by ambulance to Whittington Hospital complaining of chest pains. A report from the hospital states that she "looked well" and that all tests were normal.

I accept that there has been accident and some illness but I do not believe it to be anything like the extent claimed. This family would be well capable of continuing to care for [K] if mother were extradited.

[E] seems to be a normal 17 year old with ambitions to go to university. I accept that life will be more difficult if her mother is extradited."

30. His conclusion on this aspect of the case was this:

"My findings on the evidence in this case mean that the circumstances come nowhere near the extent required to show that extradition for these serious offences would be a disproportionate interference with [the Appellant's] and her family's Article 8 rights."

31. Accordingly, he ordered the Appellant's extradition.
32. There is one matter I would add to that appraisal of the District Judge's decision. He recorded two matters that arguably conveyed a sense of what was to come as a result of his decision:

(a) "I was also told by the [Appellant's] lawyer that the [Appellant] had instructed him to tell me that she would commit suicide if her extradition were ordered."

(b) "The [Appellant] gave her evidence in an articulate and sometimes tearful manner. She is desperate not to be extradited to Poland. She did not threaten suicide during her evidence, but such a step was hinted at on occasion."

The history of events thereafter and the issue of an adjournment

33. As I have indicated, new solicitors were instructed after that decision and provisional grounds of appeal submitted (see paragraph 6 above).
34. The appeal hearing was set for 6 February 2013, but on 3 February the Appellant made an attempt on her life whilst in HMP Holloway. She cut her left arm with a razor. Subsequently revealed documents suggests that she did this against the background of having been given some less than positive news by her solicitors about the prospects of success in the forthcoming appeal. The prison authorities requested that they be kept informed of any potential bad news so that they could keep her safe within the prison system.
35. At all events, Collins J adjourned the appeal and directed that, inter alia, the Appellant should file and serve a psychiatric report within 14 days. In fact Dr Alexis Bowers, a Consultant Psychiatrist instructed by the Appellant's solicitors, did not see her until 11 March and, having interviewed her and reviewed such records as were available, prepared a report dated 12 March which was served on 22 March 2013.
36. The report contains the following conclusions:

(i) The Appellant does not exhibit any symptoms of a major mental illness such as clinical depression, mania or psychosis, but she does exhibit psychiatric symptoms of poor sleep, worry and suicidal plans which relate to her social circumstances and can be thought of as an "adjustment disorder". This is a self-limiting psychiatric condition that occurs in response to a stressful life event and the symptoms usually resolve within six months or when the stressful situation or circumstances are removed. There was no evidence of a treatable mental illness.

(ii) The treatment of the Appellant's adjustment disorder at the time of the assessment consisted of nursing care and containment in a safe environment.

(iii) The suicide attempt was genuine in the sense that she cut herself with the intention of dying. The leaving of notes and the failure to seek help evidenced this.

(iv) If she is told that she must return to Poland and no nursing intervention is offered (and the means such as a ligature and a ligature point or a blade is available) it is more than likely that she will attempt to take her life again.

(v) Both in the UK and in Poland she should be detained where it is staffed by nurses and other staff trained in suicide prevention and restraint.

37. It was this report that was before me when the appeal came before me for a substantive hearing on 15 April. It formed a significant part (though not the sole basis) of Miss Lindfield's submissions in support of the appeal, both in writing and orally, and Miss Davidson responded appropriately. I will return to it in due course, but the narrative requires a brief description of what occurred next.
38. Miss Lindfield made other submissions including one based upon the assertion that the time limit for prosecution of certain of the offences in the accusation aspect of the EAW were time-barred and another on the basis of proposition that the Appellant's sentence on the other matters had been reduced to two years with the result that, in the light of the time spent in custody on remand, she would in effect have served the equivalent of that sentence. As to that latter matter, it was said in her skeleton argument that written confirmation had been sought and was awaited, the source of the information hitherto being the Appellant's mother. Given the source, and in any event, it seemed to me to be sensible to have "chapter and verse" on that issue, and indeed on the question of possible time-barred offences, so that I would be able to take all these matters into account, so far as relevant to the overall Article 8 case.
39. Accordingly, when I reserved judgment after the hearing on 15 April (with the intention of being able to give a judgment relatively quickly) I did with a view to the CPS endeavouring to obtain clarification on these two matters. Unfortunately, the initial response, which took a little time to emerge, was not as clear as it might have been and, following a personal initiative of my own (with the agreement of Counsel) the position was in due course clarified as follows:

i) In relation to the accusation aspects of the EAW, a 10-year limitation period ran in respect of accusations (1), (2) and (4) set out in paragraph 9 above, whereas the limitation period for accusations (3) and (5) was 25 years.

ii) The sentence on all the other matters had not been reduced, but a hearing was to take place on 5 August this year at which consideration would be given to what is called the "aggregation" of the sentences imposed.

40. The information concerning the hearing on 5 August did not appear in the letter sent to me on 21 May in response to my initiative, but it did emerge in authoritative form a week or so later.
41. The further information that did emerge from my own request for information was that, whatever custodial sentence is in force in relation to the Appellant (either now or as a result of some "aggregation" in due course), she has the right to apply for any release after she has spent half of the sentence in custody. Unlike in the UK, release at the half-way point is not automatic, but depends on Article 77(1) of the Criminal Code which empowers the court to order early conditional release "only when [the prisoner's] attitude, personal characteristics and situation, his way of life prior to the commission of the offence, the circumstances thereof, as well as his conduct after the commission of the offence, and whilst serving the penalty, justify the assumption that the perpetrator will after release respect the legal order, and in particular that he will not re-offend."
42. At the hearing held on 19 June, to which I will refer more fully shortly, I was told by Miss Lindfield on instructions that a judge of the Płock court had recently made contact with HMP Holloway to ask for information about the Appellant's conduct. This has not been confirmed by any independent source, but I will take it at face value for present purposes. If so, it is possible that this is a first step towards considering the kind of issues required by Article 77(1).
43. At all events, the position as at the hearing on 19 June was thus:

a) The accusation aspect of the warrant could not stand in relation to two of the 5 matters alleged (and one would fall to be time-barred in about 6 months time).

b) The original total sentence remained in force, but it would be reviewed on 5 August.

44. So far as the sentence is concerned, if it remains in force as at present, but the Appellant would be entitled to early release at or shortly after the half-way stage, given the time already spent in custody in the UK, she would have to spend about 7 months in custody in Poland before being able to apply for early release. If the overall sentence was reduced to 2 years or thereabouts, she would almost certainly have served over half of that sentence by now and would be entitled to apply for early release, as it were, instantaneously. It is on the basis of an expectation of that latter scenario, which has been predicted by her lawyer in Poland who has provided an opinion to that effect, and on the basis that the outstanding accusation matters are not sufficiently serious to warrant interfering with the Article 8 rights of the Appellant and her children, that an application for bail was made to me on 19 June at the same time as an application for an adjournment to await the outcome of the hearing on 5 August.
45. Miss Davidson strongly opposes the suggestion that this appeal should be adjourned until after 5 August 2013. The proceedings have already taken over a year - at first instance because the Appellant made numerous applications to adjourn the proceedings to which I have made some reference in paragraphs 15-27 above – and in relation to the appeal, there was a delay following the Appellant's suicide attempt, but considerable further delay has been caused by, she says, the Appellant raising issues in relation to her sentence only one day prior to the extradition appeal. That is true, but it is fair to say that some parts of what she has asserted have proved to be correct (though not, of course, all) and there has been some delay in obtaining a clear answer from the Polish authorities about some aspects of the picture. Nonetheless, Miss Davidson is right to say that there has been no explanation why the application in Poland in relation to her sentence was not made much earlier in the extradition proceedings. She has reminded me of the conclusion of the District Judge to which I referred in paragraph 28 above and to the proposition that the extradition proceedings have already lasted long enough for the limitation period in respect of some of the accusation offences to have expired. The proposed adjournment would result in yet further delay.
46. She also says, in my judgment correctly, that it would be wrong in principle to adjourn matters further. What happens on 5 August is a matter for the Polish court and it would, in my view, be wholly inappropriate for me to await the outcome of that. Miss Davidson says that it is very common in Polish EAW cases for requested persons to initiate parallel proceedings in Poland in an attempt to achieve a compromise that obviates the continued need for the EAW. She submits that the approach of the UK court is to proceed on the basis that such a matter is solely for the Polish court and, except in cases in which the compromise is likely to happen imminently, the English Court should not delay its own extradition process. She cited Jeriorowski v Regional Court of Torun [2010] EWHC 3620 (Admin), a decision of Burnett J with which I respectfully agree. She also referred to Baghishyan v District Court in Zamusc, Poland [2011] EWHC 1297 (Admin) where Ouseley J said this at paragraph 5:

"The ground [which is raised] for an adjournment is a common enough point in Polish cases: that an attempt is being made to appeal a decision or sentence, or quash a decision, or compromise the proceedings in some way. Save in the most exceptional circumstances where there might be a delay of only a day or so, this court does not adjourn proceedings so that possible compromises can be awaited. To do so would be to introduce a bar to extradition by the side wind of an adjournment, contrary to the provisions of the Extradition Act, which set out what are the statutory bars to extradition. It is not for the court to make so large an exception to the normal operation of extradition."

47. I respectfully agree with that too. The cases of Ulatowski v Regional Court in Gdansk, Poland [2011] EWHC 1260 (Admin), Galewski v Judicial Authorities of Poland [2011] EWHC 317 (Admin), Arkadiusz Werner v Circuit Court in Poznan, Poland [2011] EWHC 1651 (Admin), and Dyna v Regional Court in Bielsko Biala [2010] EWHC 3396 (Admin) are examples of a similar approach.
48. Although it is only a matter of 6 weeks or so until 5 August, I can see no basis for adjourning further.
49. It follows (there being no basis for the bail application other than to obtain release over the period of an adjournment), I do not need to consider the bail application. For the record, however, I would not have acceded to it: there is sufficient concern that the Appellant would not surrender when called upon, whatever conditions might be imposed, and there is the question of her own safety too (to which I will refer briefly below).
50. I should, perhaps, say that the suggestion made that there was a potential abuse of process that required investigation arising from the fact that news of the hearing on 5 August was not mentioned in the letter to me dated 21 May, although apparently the decision for such a hearing had been made the day before, is, to my mind, fanciful and requires no further consideration.

Other issues

51. Miss Lindfield had not, of course, abandoned the case she had advanced on the Appellant's behalf arising from her suicide risk, an issue raised under section 25 and under Article 8. She sought to argue that the Appellant's suicide risk was as a result of the adjustment disorder (i) which itself arose from these proceedings (ii) the foundation for which (the offences or alleged offences) was (iii) her dysfunctional relationship with her former husband. Miss Lindfield was, I think, putting it this roundabout way in an endeavour to suggest that the attempt to commit suicide was not to be regarded as a voluntary act because, if it was, it would negate the proposition that extradition would be oppressive: see, e.g., Rot District Court of Lubin v Poland [2010] EWHC 1820 (Admin).
52. I do not think that such a construction of the Appellant's state of mind can withstand the terms of Dr Bower's psychiatric report or indeed the findings of the District Judge who had the advantage of seeing and hearing the Appellant in the witness box. He concluded that the Appellant will plainly do anything to prevent being returned to Poland including either threatening or attempting suicide. That has to be seen as a voluntary act in this case.
53. There is no doubt that the English prison estate, particularly now it is alerted to the risk, can prevent suicide from taking place. Does the same apply within the Polish prison estate? There is no evidence before me to rebut the usual presumption that other EU countries have facilities available to deal with such a problem. I would add that in this particular case I am sure the UK prison authorities will alert the Polish authorities of the risks arising in advance of any hand-over of the Appellant. I would encourage positively any such course. The provision of Dr Bowers' report (preferably in translated form) would be one feature of any dossier to be provided by the prison authorities.
54. However, I cannot see the risk as one which either renders it oppressive for her to be extradited or operates as a significant (and deciding) factor in the Article 8 balancing exercise.
55. As to that exercise, it was carried out carefully and with sensitivity by the District Judge notwithstanding his adverse findings concerning the Appellant. I do not consider that his analysis can be faulted. At the point at which I am reviewing this case, K has been looked after by the Appellant's parents (whatever the difficulties) for nearly 15 months since the Appellant has been in custody and it is, of course, the Appellant's case that she effectively left K at the age of 3 months or so in their care when she faked her own death. As the District Judge said, and I too recognise this fully, K will be upset (maybe very upset) if her mother is extradited. However, she has in her recent history lived without her mother's daily care for 15 months and, if the Appellant is right, any period in Poland would not be extensive. However, that is a little speculative, I appreciate, but I cannot see that it would be disproportionate to the Article 8 rights of the Appellant, those of her daughters or those of her parents for her to be extradited. The offences on which she is due to stand trial, although not serious in isolation, are quite serious when considered against the whole catalogue of offending over a period of a couple of years and there is, as has so frequently been said, a clear public interest in upholding an effective extradition process. That interest, in my judgment, prevails in this case.
56. For the sake of completeness, I should say that I do not consider that the points about delay made by Miss Lindfield are of any operative relevance in this case. Miss Davidson is right that the District Judge did not address (and was not asked to address) specifically the question of fugitive status, but it is necessary to look at this aspect with a degree of realism. The Appellant knew she faced a prison sentence in Poland and yet left Poland in the odd (and not necessarily fully accepted) circumstances to which I have referred. To the extent that a view needs to be formed about it, it is highly likely, in my view, that she would have been characterised as a fugitive.

Conclusion

57. For all those reasons, this appeal is dismissed subject to the Appellant being discharged, if that is the correct order, in relation to the two matters on the accusation warrant that are now time-barred.
58. I will have given permission (and encouragement) to the Appellant's advisers for the terms of the draft judgment in this case to be conveyed to the Governor of HMP Holloway before the result of the appeal is conveyed to the Appellant.
59. I am grateful to Miss Lindfield and Miss Davidson for their assistance.

Note 1    This is the translation of the EWA with which the court has been supplied. It is likely that the word “stole” would reflect the criminality alleged.    [Back]

Note 2       [Back]