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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 >> Klazinska v Circuit Court In Lodz, Poland  EWHC 69 (Admin) (18 January 2022)
Cite as:  EWHC 69 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JOANNA KLAZINSKA
|- and -
|CIRCUIT COURT IN LODZ, POLAND
Reka Hollos (instructed by CPS) for the Respondent
Hearing date: 26 October 2021
Crown Copyright ©
Mr Justice Julian Knowles:
a. The Appellant pleaded guilty to the offence in the EAW and agreed to the sentence proposed by the prosecutor.
b. The judgment of the District Court of Lodz of 11 April 2006 was posted to the address provided by the Appellant.
c. Prior to the decision of 16 June 2011 to activate the sentence, the Appellant had been summoned on multiple occasions to carry out her duty.
d. The Appellant was summonsed to attend prison on 11 September 2011 but did not appear. She was unlawfully at large from this date.
e. On 9 November 2011, the Judicial Authority learned that the Appellant had left Poland and had not been resident at the address she provided to the court for several months.
f. On 28 November 2011, the District Court for Lodz issued an arrest warrant for the Appellant.
g. In February 2020, the Police established that the Appellant was living in the UK and an EAW was issued.
h. Throughout the duration of the criminal proceedings and the period of her suspended sentence, the Appellant was under an obligation to appear on every summons issued for her attendance and to notify the court of every change of address lasting for more than seven days.
i. The Appellant was advised by her probation officer of the risks if she failed to comply with the requirements of her suspended sentence.
j. The Judicial Authority considers the Appellant to be a fugitive. She did not redress the loss caused to the victims as required by the conditions of her sentence; nor did she notify the court or her probation officer of her change of address including her departure from Poland as she as required to do.
k. The Appellant was not legally represented during the criminal proceedings.
The district judge's judgment
The legal framework
"26 Appeal against extradition order
(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.
(2) But subsection (1) does not apply if the order is made under section 46 or 48.
(3) An appeal under this [section—]
(a) may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
(4) [Notice of application for leave to appeal] under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.
(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given."
"27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may -
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions subsection (4) are satisfied.
(3) The conditions are that –
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that –
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must –
(a) order the person's discharge;
(b) quash the order for his extradition.
28. The appeal is brought under section 28 of the 2003 Act. The relevant conditions for a successful appeal in this case are in section 29(4) to the effect that:
'(a) … evidence is available that was not available at the extradition hearing;
(b) the … evidence would have resulted in the judge deciding the relevant question differently….'
so that he would not have been required to order the respondents' discharge.
29. The statutory provenance and obvious parliamentary intent of the 2003 Act does not favour a liberal construction of these provisions. One aim of the European Framework Decision, as given in paragraph 5 of its preamble, was to remove complexity and potential for delay inherent in extradition proceedings – see also the opinion of Lord Hope of Craighead in Dabas v High Court of Justice, Madrid  AC 31 at paragraph 53; and Lord Neuberger in Mucelli v Albania  UKHL 2 at paragraph 66. Article 17 of the Framework Decision provides in terms that a European Arrest Warrant shall be dealt with and executed as a matter of urgency. Time limits are provided for and section 31 of the 2003 Act and the resulting practice direction (paragraph 22.6A of the Part 52 Practice Direction) predicate a speed of proceeding which was scarcely achieved before the district judge in the present case, let alone upon an appeal at which large amounts of fresh evidence might freely be admitted. As we say, Mr Caldwell accepted that it was beyond the real contemplation of the legislation – if not literally beyond its technical scope – that fresh evidence might generate the need for a full rehearing in this court.
30. Mr Caldwell rightly did not contend that evidence that "was not available at the extradition hearing" simply meant evidence which was not adduced at the extradition hearing. He referred to paragraph 3 of the judgment of Latham LJ in Miklis v Lithuania  EWHC 1032 (Admin) concerning section 27(4) of the 2003 Act, which is the materially identical provision to section 29(4) for appeals against an extradition order. Latham LJ said that the word "available" makes it plain that the court will require to be persuaded that there is some good reason for the material not having been made available to the district judge. He did not consider that the requirements of Ladd v Marshall had to be met, where not only the liberty of the individual, but also matters relating to human rights are in issue. Any suggestion of an appellant keeping his powder dry would be viewed with some scepticism. Latham LJ was prepared to accept that the material provided by one person in Miklis could not have been obtained in time for the hearing before the district judge. He was less convinced about other medical evidence, but in the circumstances was prepared to admit it.
32. One reading of this passage suggests a discretionary latitude which the wording of the section does not readily provide. In addition, the passage does not address the further restrictive condition in section 29(4)(b) that the fresh evidence would have resulted in the judge deciding the relevant question differently, which is more restrictive than the parallel considerations in Ladd v Marshall or section 23 of the 1968 Act.
33. In our judgment, evidence which was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.
34. The court, we think, may occasionally have to consider evidence which was not available at the extradition hearing with some care, short of a full rehearing, to decide whether the result would have been different if it had been adduced. As Laws LJ said in The District Court of Slupsk v Piotrowski  EWHC 933 (Admin) at paragraph 9, section 29(4)(a) does not establish a condition for admitting evidence, but a condition for allowing the appeal; and he contemplated allowing fresh material in, but subsequently deciding that it was available at the extradition hearing. The court will not however, subject to human rights considerations which we address below, admit evidence, and then spend time and expense considering it, if it is plain that it was available at the extradition hearing. In whatever way the court may deal with questions of this kind in an individual case, admitting evidence which would require a full rehearing in this court must be regarded as quite exceptional.
34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998. But such Human Rights Act considerations do not extend for the benefit of judicial authorities seeking the enforcement of a European Arrest Warrant for whom section 29(4) is of no avail if they are unable to come within its clear terms. This apparent imbalance between defendants and judicial authorities arises from the fact that a defendant may have the benefit of Human Rights considerations which the judicial authorities do not. We say this without overlooking the decision of a division of this court in Bogdani v Albanian Government  EWHC 2065 (Admin), where the court admitted in the interests of justice a further explanation of Albanian statutory law to assist in its construction in an appeal which raised an issue under section 85(5) of the 2003 Act – see paragraphs 45 and 46 of the judgment of Pill LJ. The court at an earlier hearing had contemplated the admission of this material without objection at that stage. Technically evidence of foreign law is regarded as evidence of fact in this jurisdiction. But we doubt whether such evidence was a significant parliamentary concern underlying section 29(4). The court would naturally wish to be properly informed as to relevant legal principles of the law of a foreign state.
35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a Human Rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."
"57. In my view these conditions in subsection 27(4) are, strictly, not concerned with the admissibility of evidence. I agree with the observation of Laws LJ in District Court of Slupsk v Piotrowski  EWHC 933 (Admin), with regard to the parallel provision in section 29(4) which applies to an appeal against discharge at an extradition hearing, that it does not establish conditions for admitting the evidence but establishes conditions for allowing the appeal. In my view this applies equally to section 27(4) which is not a rule of admissibility but a rule of decision. The power to admit fresh evidence on appeal will be exercised as part of the inherent jurisdiction of the High Court to control its own procedure. The underlying policy will be whether it is in the interests of justice to do so (Szombathely City Court v Fenyvesi  EWHC 231 (Admin);  4 All ER 324, a decision in relation to section 29(4) of the 2003 Act, paras 4 and 6 per Sir Anthony May P; FK v Germany  EWHC 2160 (Admin), para 26 per Hickinbottom LJ). In this context, however, an important consideration will be the policy underpinning sections 26-29 of the 2003 Act that extradition cases should be dealt with speedily and not delayed by attempts to introduce on appeal evidence which could and should have been relied upon below (Fenyvesi at paras 32-33)."
58. Parliament in enacting sections 26-29 of the 2003 Act clearly intended that the scope of any appeal should be narrowly confined. The condition in section 27(4)(b) that the fresh evidence would have resulted in the judge deciding the relevant question differently is particularly restrictive. This is reflected in the judgment of the Divisional Court in Fenyvesi…"
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"8. We can, therefore, draw the following conclusions from Norris: (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. (2) There is no test of exceptionality in either context. (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. (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. (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. (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 363and family life. (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."
"24. The single question therefore for the appellate court is whether or not the district judge made the wrong decision. It is only if the court concludes that the decision was wrong applying what Lord Neuberger PSC said, as set out above, that the appeal can be allowed. Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge's reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong."
"25. …The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not rehearings of evidence or mere repeats of submissions as to how factors should be weighted; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh….
26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong…The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighted so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed."
"26. In Polish Judicial Authority v Celinski  EWHC 1274 (Admin);  1 WLR 551 this court indicated that a District Judge should identify the factors pulling each way in an article 8 case and state the conclusion. An appellate court would interfere only if the conclusion was wrong. The judge in this case had very little information before him about the appellant's circumstances because of the way in which the hearing had to proceed in her absence. As a result, it is common ground that the limited role of the appellate court identified in the Celinski case needs modification in this appeal. We must make our own assessment."
See also Versluis v The Public Prosecutor's Office in Zwolle-Lelystad, The Netherlands,  EWHC 764 (Admin), .
"20. My husband has a lot of health complications. We have applied for and have been granted Personal Independence Payments by the Department of Work and Pensions as he has been 157 157 deemed by the authorities, to be suffering from a long term physical condition. I exhibit a copy of the appeal application and the Tribunal's judgment as JK/6. We have also applied for housing in the hope that we can move into a bungalow. Due to my husband's severe mobility issues, it is very difficult for him to manage the stairs in our home. I exhibit a copy of an email sent to Nottingham City Council in respect of this application as JK/7. He had heart attack almost 6 years ago. He is diabetic and on insulin. He also cannot hear in one ear. I have to assist him with every day tasks such as getting dressed and washing. I also do all cleaning and cooking. He doesn't have mobility problems as such but when he goes out can only walk for around 50 metres or so before needing rest. I have to prepare and monitor his medication and give him insulin injections twice a day. When I am at work my daughter will keep an eye on her phone just in case my husband needs anything/calls for an emergency if he needs medical help. If I am extradited my husband will stay here because of his medical needs. The hospitals in Poland are not as good as here.
22. My extradition will have a huge impact on my husband. Although he now has some financial support by virtue of being granted PIP, it still does not compare to the level of financial support I currently give him and will not be enough for him to live off. He will be left without financial and day-to-day support; the level of care won't be as much as it is now, and he could have a nervous breakdown. I am not sure where he would live. My daughter will not be able to support him financially and pay for his expenses and bills and he cannot afford to support himself. My daughter lives in a one bedroom flat in London with her husband and they are planning family of their own, so my husband would not be able to live with them. Magdalena is currently 16 weeks pregnant and is due to have her 158 158 baby in November 2021. They would not be able to move to Nottingham as their jobs are in London. It would be very difficult for my husband and I to accept that his daughter has to support him financially and look after him practically even if she was able to do so. He would also not be able to return to Poland. We don't have a home there. We don't have family or friends who could help. We don't have any savings so he would require financial support as well. His health would worsen because the medical care is much worse there."
"6. We have approached the council regarding an at home care assessment for my husband to see what adaptations can be made at home to help him move around. We also enquired to see what care would be available to him in the event that my removal takes place. We have also made enquiries regarding a bungalow to assist with my husband's mobility issues. Nottingham Council informed us that we must bid for this and that they would only be able to conduct a care assessment based on my husband's PIP award and universal credit. We have applied for universal credit to seek further financial support but again the Department for Work and Pensions cannot progress the application because they are unable to confirm whether I have settled status. I exhibit confirmation of this as JK/13. We do not know if this or any financial help would be available if I was extradited from the UK. My husband has also been given a blue badge as the issues with his legs continues to get worse. He has been referred to a physiotherapy as he is losing feeling at the bottom of his feet and cannot feel his toes. His legs are constantly swollen, and walking is extremely painful for him. He has now been contacted to arrange this appointment and I will provide a confirmation letter as soon as it is received. I exhibit a copy of the letter from his GP as JK/14."