CO/3744/2014 
Neutral Citation Number: [2014] EWHC 4423 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Monday, 1 December 2014
 
B e f o r e: 

SIR STEPHEN SILBER
(SITTING AS A JUDGE OF THE HIGH COURT) 

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Between: 
DANIEL MICHALIK 
Appellant

v 

CIRCUIT COURT IN KATOWICE, POLAND 
Respondent 
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Miss Mary Westcott (instructed by Kaim Todner) appeared on behalf of the Appellant

Mr Benjamin Seifert (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
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J U D G M E N T
1.	SIR STEPHEN SILBER: 
2.	Introduction
3.	Daniel Michalik (" the appellant") appeals against the decision of District Judge Snow made on 5 August 2014 to order the his extradition pursuant to a conviction European Arrest Warrant, issued by the Circuit Court in Katowice, Poland, to enforce the 4 month 13 day sentence remaining from a 6‑month sentence.  The sentence was imposed following two offences which were committed on 6 June 2009 when the appellant was just 17.  
4.	The district judge found that one of the offences was not a criminal offence in this country and the remaining extradition offence could be described as being equivalent of the English  offence of assaulting a police officer in the execution of his duty.  
5.	The European Arrest Warrant was issued five years after the sentence on 30 September 2014 and certified by the National Crime Agency on 27 January 2014, with the appellant being arrested on 1 June 2014
6.	The Hearing before the District Judge
7.	The appellant has lived in the United Kingdom since 2011, and he has a 2‑year‑old daughter who was born on 26 August 2012.  He is of good character in the United Kingdom.  The mother of his child is his partner, Dominika Jedrzejczyk, but there have been periods since 2011 when the appellant and his partner have not been in a relationship, but at present, since there was a reunion in July 2014, they have indeed been together.  
8.	.  The district judge did not find the appellant to be a credible witness and he noted  the appellant's inability to recall his probation officer's name.  The district judge was also concerned that the appellant had not been totally candid about his relationship with his partner, because it was only during the course of the proceedings that it became clear that his partner had obtained a restraining order on 21 January 2014 at the family proceedings court, but the order has been revoked.  
9.	The district judge found the relationship between the appellant and his partner to be "extremely unstable", but he did accept that his partner had become reliant upon the appellant for maintenance, which he does pay, although she did manage to earn, at that stage, £252 a fortnight.  I should add that there has been further evidence which has been adduced which shows that the appellant's partner has lost her job and been declared redundant at present, so that changes the financial situation.
10.	The Grounds of Appeal
11.	The two grounds of appeal  are, first, that the appellant has served his sentence bearing in mind the time that he has been subject to a curfew; and second, that the district judge erred in finding the appellant's extradition to Poland was compatible with his right to a private and family life under Article 8 of the European Convention on Human Rights.  
12.	The Effect of the Curfew
13.	There has been a 6‑hour tag curfew imposed on the appellant since 16 June 2014.  When that matter came before me on the first hearing of this appeal on 5 November, I made a request to the Polish authorities for further information relating to whether credit is given in Poland against sentences imposed in Poland to those awaiting extradition who would have been the subject of an electronically‑monitored curfew in this country of a variety  of different hours, namely 6 hours, 7 hours, 8 hours, 9 hours and 10 hours a day, and if so how much deduction is given in each case. A similar request that was made in the case of Krzysztof Szkwarkowski v Regional Court In Gdansk, Poland CO/3584/2014
14.	The response was meant to set out the applicable law and practice.  The answer that was given is not entirely satisfactory, in that is does not answer the question, but it shows that for a credit to be given in Poland, there has to be a curfew of at least 12 hours a day imposed in this country. So the appellant's curfew of 6 hours a day will not count in Poland and can be ignored.
15.	The appellant also  relies on  the decision in Marzurkiewicz v District Court in Rzeszow, Poland [2013] EWHC 1332 (Admin), in which Nicol J pointed out that the district judge had said that the appellant had been on an electronic tag since 20 March 2012.  He then said that as a matter of Polish law this would count as a day of his sentence.
16.	What is not stated there is for how many hours the appellant had been under curfew and I therefore derive no assistance from it.  Thus I do not accept that the appellant has served his sentence, although I do accept that the time that he has been on curfew is something that can be considered when I move on to the second ground, which is the Article 8 ground.
17.	The Article 8 Ground
18.	The basis of this ground  is the impact on the appellant's child, who is now 27 months of age, if the appellant was to be extradited.  It was accepted that the appellant has a great bond with the child, and that even when there was a hiatus in his relationship with the mother of the child, he still saw and remained in regular contact with his daughter.
19.	In addition, the effect of the appellant's extradition would be harsh on the child, because the appellant paid substantial maintenance, and although initially the appellant's partner had a job, she no longer has it.
20.	It is also pointed out that the offence was not a serious one, and that it took place when the appellant was 17 years of age.  An additional factor relied on is the delay in this case.  Finally, the point that is made is that the appellant has already served 1 month and 2 weeks from the sentence, and also the custody at the start in this case before he was given custody after his arrest means that he has somewhere between 3 and 4 months to remain in custody.
21.	In response, the case for the Judicial Authority is that what is of critical importance in this case is the Framework and the need for this country to comply with its international obligations.  It was pointed out that the delay in this case was the fault of the appellant as he had left Poland in haste and could not be found, and therefore that should not be held against the Judicial Authority.  It was also pointed out that the appellant's partner was well able in this case to look after herself, although, as I have explained, matters have moved on since then because she has now lost her job.
22.	I am concerned about the fact that the appellant has between 3 and 4 months left to serve and that is approaching the minimum period of imprisonment  below which extradition would not be ordered. Other factors in favour of allowing the appellant's appeal  are  that these offences took place when the appellant was  17 years of age, he is now 22 years of age and people mature substantially during that period.  Furthermore, he seems to have had a good employment record and would appear to have settled down well.  
23.	Although I have said that the time spent on curfew is not something for which he can be given total credit for, it does show to some extent that he has had some form of punishment, and there must be a very substantial chance that he will succeed in having his prison sentence reduced to a curfew when he returns to Poland.  
24.	I have not found this an easy case, because it is necessary to come to a fact‑sensitive decision, but there are a number of those unusual features of this case to which I have referred.  At the end of the day, I am just persuaded that this is an appropriate case in which I should take the view that it would be disproportionate to return him to order his extradition. 
25.	For those reasons, I allow the appeal, but I stress that this is a totally fact‑sensitive decision, as are the other cases, and it is only some of the unusual features of it, in particular the amount of time outstanding and the other factors, which have driven me to the conclusion to which I have reached.