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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 >> Jozwiak v District Court In Ostroleka Poland [2013] EWHC 546 (Admin) (12 February 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/546.html Cite as: [2013] EWHC 546 (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
		12 February 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Evans given on 22 November 2012, directing the appellant's return to Poland to face a charge of an offence of obtaining a passport by deception from the Polish consulate in Belgium. He used a false name. The offence is clearly a very serious one but it was committed, if it was, a long time ago now, in May 2004. The basis upon which this appeal is brought is that it would be oppressive to return him, having regard to that lapse of time, and, in the alternative, that it would be a breach of Article 8.
2. The person who is affected, and in respect of whom it would allegedly be oppressive or a breach of Article 8, is the appellant's wife. She unfortunately suffers from poor health. Largely, it is her mental health which is the difficulty. A Polish psychologist who had been treating her had written a report on 17 March 2012, she having gone to Poland in order to see the psychologist in question and obtain a report. That report indicates that she had been under psychological care, including pharmacologic treatment, since 2008 due to depression. Sadly, in 2011 she suffered a miscarriage and this resulted in a deterioration in her health and apparently schizophrenia was diagnosed. She has, according to the report, a degree of mental retardation, "to a moderate extent", as it is put. She often experiences states of powerlessness, helplessness, she is easily discouraged and she collapses in difficult times, has low resistance to stress and has difficulty controlling her impulses and constructively coping with stress. It is said that she suffers very high levels of psychoticism, suggesting a tendency to psychosis, acting in a risky fashion and being dangerous to her life and health. She requires help and care from adults.
3. This indeed is also supported by a report given in September last from the disability and carer's service based in Cardiff, because she and the appellant were living in Wales. This states that she has been awarded the highest rate of disability allowance in respect of care because she needs supervision through the day to prevent substantial danger to herself or others, and someone to be awake to watch over her at night, often up to about every 20 minutes to prevent danger to herself or to others. She has two grown up children and it seems that one of them has been looking after her and has been caring for her and is, I assume, in receipt of the allowance which is referred to.
4. The appellant apparently met his wife in 1984 but they did not marry and they had the two now grown up children. It is the son who is now aged 20 who is looking after her. Apparently they separated, he went through another marriage, which failed, and in 2003 separated from that wife and obtained a divorce in 2007. He subsequently married his present wife. As I say, sadly, she suffered a miscarriage in 2011 and so there are no further children other than the two grown up children.
5. The District Judge accepted that there was no proper basis for concluding that the appellant was aware of the fact that he was to be prosecuted for this offence. The District Judge said in terms that he had no knowledge of the pre-trial investigation, he was not arrested or spoken to by the police and had never been the subject of any court-imposed restrictions on his movements. Perhaps that is not altogether surprising because he did not go to Poland after obtaining the false passport but came immediately, as one understands, to this country. He has been here, it seems, ever since. He has been, of course, caring for his wife whilst he was at liberty but he has been in custody now since last July. Part of the time in custody was because he had committed yet further offences in this jurisdiction, the most recent of which was driving whilst disqualified. He had previous convictions in 2010 and 2012 for driving, or being in charge of a motor vehicle, whilst unfit through drink and with excess alcohol, one in 2007 and one in May 2010. He had, as I say, been imprisoned for those matters, albeit for short periods.
6. There is no evidence which could lead to the conclusion that the Polish authorities were guilty of palpable delay. As Ms Westcott has pointed out, not only did he use a false name in order to obtain the passport but there are indications that he has relied on other aliases and different dates of birth. In those circumstances, it is perhaps not all together surprising that there were difficulties in tracing him.
7. The District Judge was criticised because, having found that he had not been aware of any prosecution, he indicated that he had not gone to Poland because he was aware that he would be liable for arrest. The District Judge took that view because he said that he found it strange that, in March 2012, his wife and son travelled to Poland in order to obtain the report, which apparently was required for the disability living allowance application. As the District Judge said, it is difficult to see why it was necessary to go to Poland because she could have got a report from this country, but to Poland she did go and the District Judge says that the appellant was unable to explain why he had not travelled with his wife, because that would, on the face of it, have been the natural thing for him to have done. It was that that led him to infer that the appellant was aware that he had committed an offence and so might be in trouble were he to go to Poland. That is a not at all surprising inference to have drawn because it does not seem, on the face of it, that there could be any defence to the charge which the appellant faces, but, and this is the important matter, the District Judge did not take the view that he could not rely on passage of time on the basis that he was evading justice. So his concerns about the evidence given by the appellant did not rule out the possibility of a finding of oppression or breach of Article 8. However, he was not happy with the evidence given by the appellant and he said that, because of anomalies that he refers to, he was treating the evidence called by him with some suspicion -- he was not prepared to accept it at face value.
8. It is, as it seems to me, clear the appellant's wife can be looked after in his absence by his son. Indeed, he has now been in custody since last July and six months or thereabouts of that period will count towards any penalty imposed in Poland if he is convicted of the offence which is charged. Serious though the offence is, it seems improbable that there will be a very extensive sentence requiring him to be away from his wife for a very long time, but, as I say, on the material before the District Judge and as further time has passed with him in custody, on the material available before me, there is no question but that his wife can be looked after by their son, and indeed is being looked after.
9. Furthermore, it does appear likely from the report of the psychologist that she has been back to Poland from time to time since 2008 to obtain treatment there. Apparently she takes the view that treatment there is something that she would prefer to specialist treatment here. Be that as it may, it is apparent that she could go back to Poland. The truth is that the facilities available there, so far as payments to cover her needs are concerned, are not so beneficial as they are in this country, but that is not in itself a good reason for her to remain in this country, if she needs treatment and that treatment can properly be given to her in Poland. Furthermore, as I say, and I repeat, it is plain that she can be looked after in this country.
10. In my view accordingly, this case does not come near oppression as far as she is concerned and oppression, therefore, upon him. As far as Article 8 is concerned, there is, in my view, no basis for saying that it would be disproportionate to return the appellant in the circumstances to face his criminality, if proved against him, in Poland.
11. In those circumstances, this appeal is dismissed.
12. Would you like the usual order?
13. MR GRANDISON: Yes, please, my Lord.