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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 >> Czyzyk v Regional Court In Szczecine Poland [2013] EWHC 527 (Admin) (19 February 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/527.html Cite as: [2013] EWHC 527 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		19 February 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of a District Judge ordering the appellant's return to Poland in order to serve the balance of a sentence which amounts to something just over 10 months' imprisonment. In fact, he has now served 3 months in this country as a result of his arrest pursuant to the European Arrest Warrant's implementation here and so there is a balance of something in the order of 7 months left to serve.
2. The offences in question of which he was convicted were serious. In fact, albeit that for all of the various offences it seems that a total of 9 years had been imposed, in reality the aggregate total was something a little over 4 years and so he did, in fact, serve a substantial part of the cumulative sentence that was imposed.
3. The arrest warrant discloses that the offences in question were committed some considerable time ago now in the course of 1999 and early 2000. They involved some burglaries of mainly, it seems, shop premises of various sorts. Indeed, I think they are all essentially non-domestic burglaries, apart from one with involves an attempt to steal some metal sheets. However, be that as it may, the reality is, as I say, that they are relatively serious offences and it is not surprising that one forms that view because of the total sentence that was imposed.
4. The appellant when he appeared before the District Judge was represented by a duty solicitor but no bars were relied on which were said to be able to justify a decision not to remove him. So albeit there was no consent to his removal, there was no issue raised. There have now been produced (albeit there was some difficulty in obtaining them) the notes of the solicitor who then represented the appellant and they show that he did raise the issues, in the sense that he put forward matters which on one view (and indeed on the view of those who are now representing him who have pursued the appeal) could amount to a reason not to extradite based upon section 14 of the Act, delay and it being oppressive, or, in the alternative, Article 8. However, it is apparent that the solicitor then representing the appellant took the view that there was nothing that could persuade the District Judge not to extradite and, accordingly, no representations were made.
5. The suggestion is that that was negligent and it was not right that the solicitor failed to put forward matters which had been raised with her and which could, it is said, have justified, at least arguably, a decision in his favour. As will be apparent, in my view, the decision was the correct one, and indeed there are no proper grounds for suggesting that this is a case in which the facts create a bar either under section 14 or Article 8. Furthermore, it must be remembered that as a general rule, as the House of Lords have made clear in Al-Mehdawi v Secretary of State for the Home Department, [1990] 1 AC 876, shortcomings by a person's legal adviser are not generally capable of being used as a ground for saying that there was an error of law, certainly in the decision which is under challenge.
6. That is a principle that must be borne in mind because it so often is the case that it is said that matters were raised which ought to have been put forward by the duty solicitor but the duty solicitor did not. Of course, it is possible (and indeed I had a case before me today) where it could be said that what was put forward should have alerted the duty solicitor who represented the appellant in that case but this is not, in my view, the position here. Accordingly, I do not think that there is any proper criticism of the representation below.
7. The history of matters so far as this case is concerned shows that the appellant was conditionally released from the total sentence having served all but 10 months and 20 days. He came to this country originally, it would seem, in November 2007 and an application was then made in Poland that the balance of the sentence should be required to be served because he was in breach of his obligation not to leave Poland without keeping in touch with the probation officer. In fact, an application to that effect was put before the court but was rejected (it may be because he by then had returned to Poland) but the suspension was extended by a year, and would have expired in 2009. However, the appellant chose to leave Poland again in November 2008 and this led to the decision to revoke the conditional release in October 2009. He clearly breached the terms of his conditional release by leaving Poland when he did in 2008 and it is apparent in those circumstances that he must be regarded, as it seems to me, as a fugitive from justice, so that an attempt to rely on section 14 would fail on that basis.
8. However, I shall assume for the purposes of argument that he might have been able to persuade the court, if evidence had been heard, that he was not strictly a fugitive from justice. I say assume because we do have now additional information from the judicial authority in Poland and this helpfully indicates what the position factually, from their point of view, was. It deals with an issue as to the totality of the sentence, which I do not need to go into. He says that he went back to Poland in 2009 and was picked up by the police for drinking in a public place, which apparently is not permitted, although it does not seem to be a specific offence. Be that as it may, he asserted that he was taken into custody but nothing was said or done in relation to the outstanding matter. So far as the authority in Poland is concerned, they say that the court has not been able to confirm the information about his alleged arrest and he was not temporarily kept in custody. So there is a factual issue there.
9. So far as I am concerned, particularly as there is some reason to doubt what he says on other matters, I am bound in the circumstances, because this was material that could have been put before the District Judge, if it was thought to be material, but was not, and so the principle of Fenyvesi means that it cannot be referred to now. In any event, I have no reason to doubt what is said about it by the judicial authority.
10. Then the point was made about him leaving the country in November 2008 again in breach and he did not inform the probation officer and it is said the attempt to establish his whereabouts turned out to be unsuccessful. It seems to me, therefore, that the crucial period of delay which is relied on runs from the end of 2008. That, really, is not a substantial period, having regard to the fact that it is said, and I have no reason to doubt, that the authorities were not immediately aware of his precise whereabouts.
11. It is accepted that there is no basis for an Article 8 claim simply looked at in isolation because although hardship would result, there are no family members who are directly affected. There is a lady whom he has moved in with but that relationship has only lasted for less than a year and, accordingly, in general terms there is no chance that an Article 8 claim could arise, or indeed that it would conceivably be said to be oppressive to return him to Poland.
12. Mr Hawes submits that in a case such as this where the leaving was not specifically to avoid the service of a sentence but merely a failure to keep in touch when the sentence was not directly imposed, it should be looked at in a slightly different way and that in principle the court should be more prepared to accept that it could be disproportionate to return. I am afraid I do not accept that argument albeit, of course, every case turns on its own facts but on the facts of this case I am entirely satisfied for the reasons I have indicated that there is no basis for saying that either section 14 or Article 8 could provide any proper basis for allowing this appeal. Accordingly, it is dismissed.
13. Do you require the usual order?
14. MR HAWKES: I would be very grateful.