[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 >> Gowin v Circuit Court in Katowice Poland [2014] EWHC 4283 (Admin) (17 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4283.html Cite as: [2014] EWHC 4283 (Admin)

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

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

		Royal Courts of Justice Strand London WC2A 2LL
		17th November 2014

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003, against the decision of District Judge Coleman given on 3rd September 2014, whereby she directed the extradition of the appellant to Poland in order to serve a sentence of imprisonment imposed for what amounted to a number of offences of supplying small quantities of drugs over a fairly lengthy period between 2003 and 2006.
2. The sentence that was imposed was one of 12 months' imprisonment but that was suspended on application made by the appellant. These are of course now old offences. But the reason why there was no activation was as a result of a number of applications made by the appellant before he came to this country in June 2011. He himself was born in June 1985. Accordingly, his offending covered a period when he was aged between 18 and 21. He is now 29. In fairness to him, since he has been in this country he has not committed any offences involving drugs or dishonesty. I say that because, as I shall indicate, he unfortunately did assault his wife and as a result he was convicted in October 2014 of an offence of battery for which he received a sentence of 14 days' imprisonment. Since then he has been remanded in custody. He was granted bail originally. One of the conditions was that he should maintain a particular address and unfortunately, as was apparent, when he was arrested for the assault he had breached his bail condition by moving from an address in Bristol to an address in Cornwall. He did that, he says, in order to obtain work. Once it was appreciated that he was the subject of an arrest warrant the employment that he then had came to an end because effectively he was, as he would put it, victimised.
3. As I have said, the offence which is described as offence offence 1" in the warrant was committed on 15th February 2006. That led to his remand in custody until May 2006. He was dealt with by the court in January 2007 and the judgment became final on 5th February. His daughter was about to be born: in fact she was born on 26th February and he made an application which was heard in July 2007 to postpone the sentence . It is recorded it was because of the wife's pregnancy although of course by then the child had been born. Perhaps it is not entirely material because the court postponed judgment originally until January 2008 and then subsequently until July 2008 because of the need for the appellant to look after his wife and newly born child.
4. Finally, the sentence was suspended on 30th October 2008. Obviously one of the conditions of suspension was that he should not commit any further offence whilst the period of suspension ran. In addition to that he was required to keep in touch with the probation service. However, it seems that he committed a further offence which curiously was not dealt with it seems by the court at the time because there is no record of any conviction or indeed any sentence for that offence. The appellant stated that it was because there was 1 gram of cannabis found in his rucksack. But it seems that he may have been dealt with by way of some sort of caution. However, as I say, it led to the decision to activate the sentence. He applied to postpone the activation but that request was dismissed on 16th June 2011. He came to this country in June 2011. There was an issue before the District Judge whether he was aware of the dismissal of his application for further suspension or whether he left before that. He says he left before it. She found against him, deciding that he was indeed aware that his application had been refused and accordingly he was to be regarded as a fugitive from justice. Clearly, when he left he was well aware that he was liable at the very least to be required to serve his sentence, even if he was unaware of the dismissal of his application. But he was required to attend prison and it is clear that he did not.
5. The Polish court was aware that he had left for this country in October 2011 and was further informed that he was at an address in Bristol in October 2012. One curious matter in this case is that there are two letters that have been produced, written by the court probation officer in Poland to the appellant at his address in Bristol, one in August 2012 and one in May 2013. The letters state that the appellant had been in breach of the conditions of the suspended sentence because he had not maintained contact with the probation officer and did not notify his change of address. In those circumstances it was said that further evasion of contact would result in the application to activate his sentence. That was what was said in August 2012. In May 2013, again, with reference to failure to maintain contact, it is said that there had been one letter since October 2012, which had been sent in February 2013 but otherwise no contact and further evasion would result in an application for activation.
6. As I have said, those are curious letters because the evidence from the court, when further information was obtained from the judge who was dealing with the court, was that the sentence had indeed been activated as a result of the commission of a further offence back in 2011. So quite why the probation service was writing in terms that it did is not clear. It could only be that there had been a break down in communication between the court and the probation service. Sadly, that is something which even in this country can occur and there is no reason why I should disbelieve what is set out by the judge in the information that has been provided and indeed with what is in warrant itself. Indeed, quite the contrary, there is every reason why I should believe what comes from a judicial authority in Poland. However, it does show that the probation service at least in Poland was aware of where the appellant was certainly from 2012. Nonetheless, the EAW was not issued until May 2013.
7. Miss Brown relied generally on delay in support of her contention that it would in the circumstances be disproportionate to return the appellant. The District Judge in considering these issues, particularly delay, stated that the reason that the sentence had not been served was entirely due to the actions of the appellant in trying to put off as long as possible the evil day for execution and when that day could not be put off, in fleeing the country. That is perhaps putting it slightly too harshly, because it is certainly correct that between 2007 when the conviction took place, and 2011, when he left the country he had been making applications to postpone and had achieved a suspended sentence but there was the condition that he broke by committing a further offence and he then proceeded to break another condition by leaving the country without, before he left, notifying the probation service that he was intending to do so.
8. Accordingly, as it seems to me, the District Judge's conclusion that he was in effect a fugitive cannot be said to be wrong. Indeed, the delay did result and undoubtedly largely and understandably from his request that he need not actually serve the sentence. No doubt if he had behaved himself and kept in touch the likelihood is that the sentence would not have been activated.
9. As it is, there is some 9 months and 17 days to be served. So far as the Article 8 situation is concerned, clearly the daughter is position, born in 2007 and therefore now 7 years old, has to be very much taken into account. She is at school here and effectively has spent a large part of her life in this country, albeit not entirely because she had spent her time on holidays with her grandparents in Poland. Indeed she was staying there when the hearing took place before the District Judge. However, as I say, her schooling is here. Unfortunately there was the assault and further statements have been provided from his wife who is not 100% clear what the future will be. He says that he believes, he having had the opportunity of a very brief telephone call to her, that she has forgiven him. She says in her statement that she remains a friend. However, it seems that she is not settled whether they indeed will move back together as husband and wife. Certainly it is to be hoped that they will and of course he has been in custody since the commission of the assault in October 2014, so may be full clarification of the position has not yet understandably been possible. He says that the reason for the assault was really because of the pressure under which he was being put having regard to the arrest warrant and the decision of the District Judge against him. That perhaps is to an extent understandable. However, what I have to decide is whether in all the circumstances the interference with Article 8 rights both of him, his wife and in particular his daughter mean that it is disproportionate that he be extradited to serve the balance of the sentence.
10. Delay is a factor that can properly be taken into account but it does not seem to me in the circumstances that there is any real culpability in the Polish authorities in this case. True, it seems that they were aware of the fact that he had left for this country and was in Bristol from 2012. He said they should have been aware of his coming into this country back in 2011. But the fact that it can be so, that a requesting State knows that it is likely that someone whose extradition is sought has left for the United Kingdom does not mean that it is then and there reasonable to issue a warrant, because unless the address is capable of being discovered, it may well be that such an issue is premature. However, there is no direct evidence that they were aware that he had come to this country once he left Poland. It is obvious that the probation service knew where he was from August 2012. It may be that that lack of proper communication may not have alerted the judicial authority to that fact.
11. Be that as it may, I am not persuaded that the delay in itself is sufficient to translate what I view is not a strong Article 8 claim to one which prevails. Of course there will be hardship. There always is. But it is clear that the appellant's wife is capable of looking after the child and as the District Judge said that her mother is here and the appellant's parents are able to assist and there is welfare assistance available for his wife. At most he will be away for something in the order of 8 months because the time spent in custody here after the serving of the two week sentence for the assault will count against what is left to be served in Poland. As I know there is power to apply to the Polish court to reduce the amount to be served or it may well be that he will be released when he has served half of the sentence. In those circumstances, it is not an enormously long period over which he will be away from his wife and child.
12. In the circumstances, having regard to the approach that has to be adopted following the decision of the Supreme Court in HH, it seems to me that the District Judge was correct in deciding that it would not be in the circumstances disproportionate for him to be extradited to Poland. Accordingly this appeal is dismissed.
13. MISS BROWN: My Lord, I am still not entirely sure that I need the usual order, if I do.
14. MR JUSTICE COLLINS: If you do you can have it. Someone will one day give me chapter and verse as to that.