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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 >> Kusnierski v District Court In Krakow Poland [2013] EWHC 250 (Admin) (16 January 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/250.html Cite as: [2013] EWHC 250 (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
		16 January 2013

1. MR JUSTICE SIMON: On this appeal the appellant challenges the decision made on 26 September 2012 by District Judge Evans at the Westminster Magistrates' Court to order his extradition to Poland. He is sought in respect of three warrants: EAW 1, dated 20 January 2012, EAW 2, dated 21 February 2012, and

EAW 3, dated 17 April 2012. In each case the warrants have been certified by the Serious Organised Crime Agency.

2. EAW 1 is a mixed conviction and accusation warrant in relation to a number of offences would be characterised in this country as joint enterprise serious assaults, burglaries and aggravated burglaries, committed between February and May 1991 for which he has served four months of a 12-year sentence. Within the warrant there is also an offence of attempted burglary in November 2003, for which the remaining sentence is 18 months, attempting to obtain property by deception, forgery and drugs possession in June 2005, for which the remaining sentence is 20 months, a credit card fraud also in June 2005, for which he was sentenced to, but has not served, eight months, and blackmail or extortion in February and March 2004, which is the accusation matter within that warrant.
3. EAW 2 is a conviction warrant in respect of a burglary in May 1990 and unlawful escape from custody in September 1989, for which the remaining sentence is four years and nine months. EAW 3 is an accusation warrant in relation to an offence of fraud by making false representations in April 2006.
4. Miss Bhatt, who appears on behalf of the appellant today, raises an issue now about whether he is a fugitive in relation to this matter, and whether indeed it is appropriate to extradite him on this warrant in view of matters she raises in argument, to which I will come later in this judgment.
5. The District Judge heard and dismissed arguments based on a number of grounds: first, that the appellant had already served a significant part of the sentence over and above what was set out in the warrant for the first set of offences. The District Judge rightly rejected the argument that the appellant's evidence was to be preferred to the content of the warrant on this issue. He had, in any event, found the appellant to be an unimpressive witness. In my view this ground is unsustainable and is certainly not at the forefront of Miss Bhatt's argument.
6. The second point taken in front of the District Judge was that the appellant should not be extradited on the ground that it would be incompatible with Article 3 of the European Convention on Human Rights: the prohibition against ill-treatment and torture. His case relies on a number of authorities, the most recent of which was in 2004; and is based on his expressed fear that he would be assaulted by a number of people held in prison in Poland. He said he had been a police informer. Furthermore, if he were held in solitary confinement for his own protection that too would be an infraction of his Article 3 rights.
7. The District Judge referred to the recent case of Krolik and Others v Poland [2012] EWHC 2357 (Admin) at paragraph 4 and found that there was "no clear, cogent and compelling evidence", that the Polish authorities would not provide the appellant with a reasonable level of protection, and no basis for finding that he would endure Article 3 ill-treatment in prison, or worse. The District Judge described the argument as "hopeless". In my view he was right to do so. There is simply no relevant evidence, let alone clear, cogent and compelling evidence as is necessary for the argument to succeed.
8. The third argument was that he supported his wife who is unwell and a 16-year-old daughter, and that his extradition would breach his and their Article 8 rights. The District Judge found that the hardship to his family caused by his extradition would not be sufficient to justify refusing it. He had been in custody for a long time already during which he had not been in a position to provide support for his family.
9. Since the hearing the Article 8 argument has been overtaken by the decision of the Supreme Court in HH v Deputy Prosecutor for the Italian Republic, Genoa [2012] UKSC 25. This is not a decision that advances the appeal, rather the contrary. It lays emphasis on the importance of this country fulfilling its international obligations against which rights under Article 8 must be balanced. Only exceptionally would such rights prevail. The article 8 rights here are of modest weight against the formidable argument in favour of extradition in relation to convictions for a large number of serious offences, and accusations of serious offences as well. Since the hearing before the District Judge the appellant has put forward a further witness statement. This is formally defective and there is no explanation as to why the contents were not put before the District Judge. He has also set out a summary of arguments which he wishes to advance, and these have been supplemented by a late skeleton argument prepared by Miss Bhatt of counsel.
10. It is only necessary to consider part of the new argument because the other part relates to a fourth warrant, which is not before the court. The first argument relates to the passage of time and "oppression". It is a limited argument relating to EAW 3 and was not raised, I am quite satisfied, in front of the District Judge. Section 14 of the Extradition Act 2003 provides:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—

(a) committed the extradition offence (where he is accused of its commission), or

(b) become unlawfully at large (where he is alleged to have been convicted of it)"

It is true that some of the offences took place a long time ago, but that does not provide good grounds for refusing extradition. He has been convicted of a large number of serious offences and was a fugitive from justice. He is, in short, a professional criminal. Nor would there be injustice or oppression in extraditing him in relation to EAW 3. The hardship does not occur in relation to this alone. It relates, in so far as relevant, to all the matters for which he is being extradited. The hardship will occur, in any event, since he is going to be extradited. In these circumstances the argument over and above the Article 8 argument, which I find the District Judge rightly rejected, adds nothing to this appeal.

11. There is a further point raised in the new skeleton argument of Miss Bhatt, which was not pursued with any great vigour today, that in relation to the accusation matters he is only wanted as a suspect and not for a trial. It seems to me that read as a whole the relevant parts of the warrant relate to a request for extradition so that the appellant can stand trial for these offences, and indeed there is clear description of his criminal conduct. So in my view this argument is also without merit; and for these reasons the appeal is dismissed.
12. I would add that in paragraph 15 of his judgment the District Judge made some caustic remarks about the appellant's approach to the extradition process, which in his view was marked by a cynical attempt to abuse the system by delaying what was inevitable. The time when a requested person can delay his extradition by using the appeal process is coming to an end. The requested parties will find that appeals will be listed promptly in order to prevent abuse.
13. MR JUSTICE SIMON: Thank you, Miss Bhatt.
14. MISS BHATT: I would be grateful for an assessment order of the costs.
15. MR JUSTICE SIMON: You can have an assessment order for costs. Thank you.