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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 >> Jackiewicz v Regional Court of Poznan Poland [2014] EWHC 4516 (Admin) (19 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4516.html Cite as: [2014] EWHC 4516 (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 November 2014

1. SIR STEPHEN SILBER:
2. Introduction
3. Mariusz Jackiewicz appeals against the decision of District Judge Snow made on 8 September 2014 by which he ordered the extradition of the appellant pursuant to a European Arrest Warrant.
4. The appellant is a Polish national who is now 27 years of age. He was convicted in Poland of an offence of assault committed on 15 March 2008 when he was aged 20. His extradition, which is sought pursuant to Part 1 of the Extradition Act 2003 in order that he serve 8 months' imprisonment,which is the reminder of a 1 year term. The sentence imposed on 1 July 2008 was originally suspended for 4 years with the appellant placed on probation for that period. On 24 October 2012, the court in Poland decided to activate the sentence of imprisonment on the basis that the appellant had not complied with the terms of the probation order.
5. The European Arrest Warrant was issued by the Regional Court in Poznan on 3 November 2014 and it was certified by the National Crime Agency on 19 March 2014.
6. The proceedings in front of the District Judge
7. The appellant was arrested on 2 April 2004 and extradition proceedings took place before District Judge Snow on 27 June 2004 when they were adjourned because the District Judge wished to receive further information from the Polish authorities, who responded by a letter dated 22 July. In the meantime, the appellant applied unsuccessfully to the Polish court to re-suspend his sentence.
8. On 8 September 2014, the extradition proceeding having resumed with the appellant giving evidence, the District Judge rejected the argument based on Article 8 of the Convention and ordered the appellant's extradition to Poland.
9. The findings of the District Judge were, first, that at the time of the judgment the appellant had paid all outstanding fines in full and although he had not done so at an earlier stage. The District Judge accepted his failure to do so was due to an oversight on his part. The District Judge was satisfied so that he was sure that the appellant did evade contact with his probation officers and it was also accepted that other than an offence of possession of cannabis and assaulting a police officer, for which the appellant received financial penalties, the appellant was a man who in the words of the District Judge has put his past behind him and was trying to build a law-abiding life.
10. The District Judge noted that the appellant had a partner who was pregnant and a 2-year-old daughter. The appellant's partner had had a difficult pregnancy and she required medical admission. The appellant was the sole breadwinner of the family, but the District Judge did not accept the appellant's family would be unable to assist if necessary. It was pointed out that the appellant had two sisters who lived in the same town as he did. One of whom had no children and she lived 10 minute walk away, while the appellant's partner had a brother who lived about half an hour away, while the appellant's sister had moved to the United Kingdom to live with the appellant and partner to assist during the pregnancy, but she had moved out and lived about 45 minutes away. The District Judge said that he did not accept that the family, who lived so close by, "would not be willing to assist if necessary".
11. Another finding of the District Judge was that the appellant was the sole breadwinner of the family and the District Judge noted that during the course of the proceedings the appellant had applied to re-suspend the prison sentence, but that application had been refused. It was common ground between counsel that I have to consider if the proportionality test was met.
12. Another finding of the District Judge on which the appellant places weight is that there was a real question as to whether the offence would have attracted an immediate custodial sentence in this country. The reason for that is that there is uncertainly as to the details of the offence other than it was a joint attack and nobody knows quite how much damage was in fact done.
13. Submissions
14. There was an application for fresh evidence to be adduced. I raised with Mr Ben Lloyd, counsel for the appellant, how important this evidence was, because first it seemed that most of the matters which have been set out there were matters which appeared elsewhere and second in any event it did not seem to me that the application to adduce fresh evidence would have passed the test which was set out by this court in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin) at paragraphs 32 and 35. in any event, I do not regard that the new factors would have had any serious effect on the decision that I make or indeed that they could be considered to be decisive in order to reach the threshold for admissibility .
15. Mr Lloyd made a number of submissions as to why the appeal should be allowed. First, he says that this was not a serious offence and if committed in the United Kingdom it would amount to an offence of common assault, which carries a maximum penalty of 6 months' imprisonment, and he said that it is most likely that it would have disposed of by a non-custodial sentence in tis country. He accepts that even if that was the case that does not mean that the appeal ought to be allowed but it is a factor, obviously, that I will take into account.
16. Second Mr lloyd submits that the offence is now six and a half years old. The appellant was aged 20 at the time of the offence and he is now aged 27, and we all know people mature as time goes on.
17. Third, he says that the original sentence was suspended. The appellant has paid the fine and compensation and the District Judge noted the appellant has substantially complied with the terms of the suspended sentence, although obviously the fact that he is in breach of it has led to the custodial sentence being imposed.
18. Fourth, it is also said by Mr Lloyd that although the appellant does have previous convictions in the United Kingdom, they cannot be described as serious as they were disposed of by financial penalty.
19. The fifth and main point relied on by Mr Lloyd is that the appellant is now in a lasting relationship with his partner with whom he has a 2-year-old child and that they are excepting their second child due in January and the pregnancy has been difficult and has required frequent hospitalisation. The appellant is also the sole breadwinner of the family and obviously he will lose his job if extradited.
20. I have already explained what the District Judge said about the other support that would be available to the appellant's partner if he was to be extradited and there are benefit payments that would be available to her..
21. He fortifies his point that the interests of the young child should prevent an order for extradition by pointing out that it must be in the young child's best interests that her family remains in the United Kingdom to provide and care for the family and he stressed the point that I made that the appellant had put his past behind him and tried to build a law-abiding life.
22. So it is said that it would be disproportionate for the appellant now to be extradited to serve a sentence of imprisonment for a minor assault, but as I have indicated, the fact that the requesting state imposed a prison sentence is not something that can be questioned as to its legality, although I am very conscious that in Poland they do not consider all these matters before deciding whether a European Arrest Warrant should be issued. on.
23. It is difficult for me as an English judge to know anything about Polish procedure and I think both counsel were correct in saying that I ought to just look at the whole issue of proportionality without giving weight to that.
24. The principles by which Article 8 should be dealt with in extradition proceedings has been considered twice by the Supreme Court, first in the case of Norris v Government of the United States of America [2010] UKSC 9 and second in the case of HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. My attention has been drawn to the important provisions of the speech of Baroness Hale, in which she draws conclusions from Norris in paragraph 8 of her judgment as follows:

i. "(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.

ii. (2) There is no test of exceptionality in either context.

iii. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.

iv. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.

v. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.

vi. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.

vii. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."

25. The issue therefore for me is whether this is one of those cases in which Baroness Hale says "it is likely that the public interest in extradition will outweigh the Article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe". I also bear in mind what she explained about the special position of children and also the points that she made about delay; in other words the other factors which are relevant to Article 8 are the delay in the issue of the warrant and the relative lack of seriousness of the offence and the appellant's own rights. It has not been suggested that the appellant would not have started having a family in this country if he had known about these extradition proceedings but I do take into account that delay and the significance of that.
26. This cannot be a case where having deliberately evaded the inclusion of his supervision in Poland the appellant has ever been in any false sense of security when establishing his life here. He knew he was subject to the suspended sentence and he must have known that he had broken it. It cannot be said that the appellant has led an entirely blameless life but I do not attach much weight to those matters.
27. At the end of the day, it seems that the appellant will suffer some personal and financial hardship and in my view the impact is insufficient to render the extradition disproportionate. I take on board all the points that have been put forward so ably by Mr Lloyd but bearing in mind what has been stated in the cases and the framework, as well as the findings of the District Judge about the other members of their family who are around and that the family will not become destitute if the appellant is extradited as the State will intervene For all those reasons I have come to the conclusion that notwithstanding the able submissions of Mr Lloyd this appeal must be dismissed.
28. I should explain, because I know that the appellant and his partner are here, that the one consolation for them must be that everything that could have be said on their behalf has been said by Mr Lloyd and indeed the fresh evidence, if adduced, would not have made any difference.