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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Antoniewicz v Circuit Court In Lublin (Poland) [2021] EWHC 1022 (Admin) (22 April 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/1022.html Cite as: [2021] EWHC 1022 (Admin)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd April 2021

THE HON. MR JUSTICE FORDHAM Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.

MR JUSTICE FORDHAM :

Introduction

1. This is an application for permission to appeal in an extradition case, renewed to this Court in the light of the (part) refusal of permission to appeal by Lane J on 15 February 2021. The Appellant is aged 46 and is wanted for extradition to Poland. That is in conjunction with a sequence of 4 European Arrest Warrants (EAW1 to EAW4) issued on various dates between September 2008 and October 2010, but all certified on 19 July 2018. They relate to burglaries with thefts of cars, or of car parts, an attempted burglary and theft of a car, and one offence of fraud. The overall effect is of a custodial sentence of 4 years 10 months custody to be served in Poland. The Appellant has been in the United Kingdom since 2006 and was arrested on 5 February 2020 in connection with the EAWs. DJ Radway ordered his extradition on 30 July 2020 after an oral hearing on 2 July 2020. The Appellant's current representatives did not appear below.

Mode of hearing

2. This was a remote hearing by BT conference call. Ms Brown was satisfied, as am I, that that mode of hearing involved no prejudice to the interests of her client. By having a remote hearing we eliminated any risk to any person from having to travel to a court or be present in one. This was not a case in which being able to see each other through a computer screen (sometimes with the lesser quality of sound than is achieved through a phone line) was needed. I was able to hear representations in exactly the way that I would have done had we all been present in court. I am quite satisfied that the mode of hearing was justified and appropriate. The open justice principle has been secured. This case and its start time were published in the cause list. Also published was an email address usable by any member of the press or public who wished to observe this public hearing. I have not asked for names of any who have done so: I would not ask for the names of people who attend in a public court room to observe. The important general announcement that it is a criminal offence to record the hearing was made, as always, at the start of the hearing.

Wozniak

3. When the case came before Lane J on the papers, there was before him an application for permission to appeal raising a series of grounds. On one of the grounds – the now familiar Wozniak/Chlabicz section 2 ground applicable in all Polish cases – he made the familiar order, staying the application for permission to appeal pending the determination by the Divisional Court of those two linked cases, the current position as to which is that a hearing has been fixed for mid-May 2021. Lane J directed that the Appellant would have 14 days from the date of the Divisional Court judgment in those cases to inform the Court of any intention to pursue the section to ground and if so file written submissions in support. Lane J refused permission to appeal on the section 25 (oppression by reason of ill-health) and Article 8 ECHR grounds.

Abuse of process

4. Lane J did not expressly refer to an abuse of process ground which related to two of the EAWs and concerned limitation periods. Wisely, the Appellant's legal team treated Lane J's order as a refusal on that ground, but in the event that ground has been abandoned today in light of Further Information, dated 4 September 2020 but which I am told the Appellant's team had not seen until very recently.

Article 3: Stay

5. A ground of appeal that was not before Lane J but is before me today is an application to amend the Appeal Notice to rely on Article 3 ECHR and prison conditions, taking a point which no doubt is to become familiar in Polish extradition cases. It has been considered in at least three cases which have been linked and constitute test cases on the point. Those cases are Litwinczuk CO/3399/2020 (Johnson J 21.1.21), Lukaszek CO/3852/2020 (Murray J 18.3.21) and Tadaszak CO/3941/2020 (Eady J 18.3.21). In the first of those cases Johnson J granted an application for authority to incur costs to instruct an expert on Polish prisons. He ordered that the Article 3 issue – if pursued – be notified after Wozniak/Chlabicz is determined, alongside any post-Wozniak section 2 pursuit. In the other two cases orders were made (i) to stay applications to amend the appeal notices to take the point, and (ii) joining the three cases. Ms Brown does not know, and nor do I, whether it is currently envisaged that there is to be an oral hearing on those three Article 3 test cases. What can be expected is that the issue will be judicially addressed, at least by reference to a reasonable arguability test, within about the next 4 to 6 weeks. I am quite sure that it is appropriate to stay the application for permission to amend in the present case. Unlike the other three cases which are now joined as the test cases, there is no need for the present case to become a fourth test case and Ms Brown rightly does not invite that course. The appropriate course, in my judgment, is to direct that within 14 days of final determination in the High Court of the three test cases the Appellant shall inform the Court and the Respondent whether he intends to pursue an application for permission to appeal on the Article 3 grounds and, if such an application is to be pursued, file and serve written submissions. I will also direct that, if the Appellant does take that course, then the application will be determined on the papers by a Judge as soon as practicable thereafter; and that, if the appellant does not, then the application to amend the grounds of appeal to take the article 3 point shall be dismissed 14 days after final determination of the test cases in the High Court. The Respondent helpfully emailed today at 12:18 to express its neutrality on the application in relation to Article 3. I will including the order liberty to apply, which will protect both parties in case there is a need or some development occurs to create a need to vary the terms of the order which I have just described. As with the situation encountered in Wozniak, in my judgment it could not – on this issue – be in the interests of justice or the public interest for an individual, in principle equally affected by a point of law which has been recognised and is pending before this Court, to be denied the opportunity to benefit from the consequences of a favourable judicial conclusion on that issue. As it happens, the position in Polish cases – including this case as ordered by Lane J – means cases are independently stayed and requested persons are not removable because of the Wozniak issue, which does change the profile of the status quo position, onto which the new Article 3 stay is grafted.

Adjournment

6. Ms Brown applied to adjourn today's hearing, in circumstances where there is a pending referral to a cardiologist. It is known to have taken place on 23 March 2021, to have followed an assessment on 19 March 2021. I am told that it was discussed at a conference between the Appellant and his legal team on 26 March 2021, and that the prison (where the Appellant is on remand in conjunction with these extradition proceedings) has confirmed that it was communicated to the hospital, a step understood to have taken place on 8 April 2021. Ms Brown submitted that she and her instructing solicitor wanted to be in a position to consider – in the light of the position in, say, one month's time – whether there was any aspect, arising out of that referral or any step which ensues as a result, on which to proceed with a section 25 (oppression: health) or Article 8 (proportionality) argument resting, in particular, on that aspect. She emphasised the intention to consider carefully, with her solicitor, whether any such further development would justify such reliance. She emphasised the importance of being able properly to support by evidence any such argument as was subsequently advanced. She submitted that there would be little prejudice from an adjournment, in circumstances where the Wozniak stay is already in place, to which she was able now to add the Article 3 stay, in relation to which there will now be necessarily a passage of time. She submitted that, in all the circumstances, the just and appropriate course was to adjourn the issue of permission to appeal on the remaining grounds of appeal, for a period of about a month.
7. I was not persuaded by those submissions. This is a case in which to some extent there has always been something of a 'developing' position from a medical perspective. That point can be illustrated by the issues relating to whether the Appellant was unfit to fly in the light of issues relating to a collapsed lung. The District Judge dealt with that aspect of the case, emphasising that if the issue were not resolved other methods of transport might need to be considered, and that the Polish authorities could be alerted to the condition and would respond as necessary. As to the Appellant's health more generally, as the Respondent put it in its Respondent's Notice: "The Appellant's health condition can be assessed prior to his surrender to ensure his medical issue (if it remains) is accommodated". In my judgment, the appropriate course is for this Court to consider whether there is any reasonably arguable health-related ground in this case, in the light of the current position, including the referral to the cardiologist which is known to have taken place and any uncertainty arising from it. I do not accept that it is necessary or appropriate in the interests of justice to defer consideration of this case, in which the District Judge has dealt with the position as at July 2020, and in which the Court has refused permission to appeal on the papers, until some later oral hearing. In my judgment, the appropriate course – having regard to the overriding objective and the special objective – is for this Court to consider today whether there are reasonably arguable health-related grounds.
8. One factor which features in that assessment, and my decision to proceed today, is the recognition that there is a 'safety net' within the statutory scheme and the rules. That safety net would be available and could be invoked if what happens next, so far as the referral to the cardiologist is concerned, is truly considered by the Appellant's team to be of such significance as to play a 'game-changing' role in relation to grounds which were renewed to this Court. In saying that I am expressing no expectation nor foresight that that position will arise. But that safety net route, contained within the Criminal Procedure Rules 50.27, is a material factor in my decision not to adjourn. Were the position which I have described to arise, the Appellant's team would be making an application to reopen my decision today 'determining an application for permission to appeal', if I had arrived at the conclusion today that there is no reasonably arguable health-related ground.

Section 25 (oppression/health)

9. Having refused to the adjournment, for reasons which I gave in summary after having heard the application at the hearing, and which I have just given in more detail in this judgment, I then heard submissions from Ms Brown. There were two candidate grounds of appeal namely section 25 (oppression through ill-health) and Article 8. Ms Brown accepted, in my judgment correctly, that she could not by reference to the position today – including the uncertainty and any concern arising from the referral to the cardiologist – advance any reasonably arguable ground by reference to section 25. In my judgment it is appropriate formally for me to refuse permission to appeal on the section 25 ground. The reason is the 'safety net' one that I have just given. It means that there is a decision 'determining an application for permission to appeal' for the purposes of rule 50.27. But, in the circumstances, I need say no more about section 25 and oppression.

Article 8

10. Ms Brown made submissions, based on the current position today including the health-related concerns such as they are as at today, on the Article 8 ground of appeal. She accepted, in my judgment rightly, that the Appellant's lung condition could not materially (and certainly not decisively) bear on the Article 8 evaluative exercise, for the reason given by Lane J in refusing permission to appeal on the papers. That is to say: the Appellant has been in custody in the United Kingdom where this condition has been properly addressed; and he would have access to relevant medical care in custody in Poland.
11. Ms Brown draws my attention to fresh evidence relating to the position of the Appellant's sister and her difficulties and current circumstances, but accepts that the sister – even on that evidence – "to an extent can be said to be managing". The Respondent has raised concerns about the fresh evidence, and in particular the failed opportunity by the previous legal representatives to reduce that evidence, together with what are said to be inconsistencies which would have been tested by cross-examination. I am quite sure that the fresh evidence is incapable of being decisive, and I formally refuse permission to rely on it.
12. Ms Brown's main point in her oral submissions is to remind me of the referral to the cardiologist and the uncertainty, as at the present time, as to the true medical condition of the Appellant, and the nature of the concerns that have justified that referral.
13. In my judgment, considering all the facts and circumstances of the present case, including the current position as at today, there is no realistic prospect that this Court at a substantive appeal hearing would reach the conclusion that the Appellant's extradition to Poland is incompatible with the Article 8 ECHR rights of him or anyone else. He has unimpeachably been found to be "a classic fugitive", which is highly relevant when considering delay and lapse of time, albeit that the passage of time can still tend to reduce the public interest in extradition and is highly relevant when considering the Appellant's roots and ties in the United Kingdom during the time since 2006 that he has been here, with the consequential impacts of extradition. The Appellant has no UK convictions. He is settled here, over a 15 year period, and was employed for a substantial number of years until his ill-health prevented continued employment. He was "very unwell" in 2019 but was assessed by the District Judge as "in much better health" in July 2020. He was found to be a single man with no dependents in the United Kingdom. The offences, although "very old", are "moderately serious". There are strong public interest considerations in support of extradition. There is a substantial period of custody remaining to be served, notwithstanding ongoing qualifying remand.
14. This is a case, in my judgment – notwithstanding the various health conditions, notwithstanding the March 2021 referral to the cardiologist and the concerns which that evidences, and notwithstanding the current uncertainty – in which the considerations in support of extradition decisively outweigh those which are capable of weighing against it, and the contrary is not reasonably arguable. For those reasons, I refuse permission to appeal on the Article 8 ground.

Order

15. I made this Order:

(1) The application for permission to amend the Appeal Notice to add the Article 3 (prison conditions) ground in Litwinczuk CO/3399/2020, Lukaszek CO/3852/2020 and Tadaszak CO/3941/2020 ("the Article 3 Cases") is stayed pending final determination of the Article 3 Cases by the High Court. The Appellant shall, within 14 days following the date of that final determination (a) inform the Court and the Respondent whether he intends to pursue an application for permission to appeal on that ground and (b) if so file and serve written submissions in support.

(2) In the event that the Appellant, within 14 days following final determination of the Article 3 cases, informs the Court that he does intend to pursue an application for permission to appeal on the Article 3 ground, that application shall be determined on the papers by a Judge as soon as practicable thereafter. Otherwise, the application for permission to appeal shall be dismissed 14 days after final determination of the Article 3 cases.

(3) The parties have liberty to apply, in writing on notice, to vary or discharge paragraphs (1) or (2) of this Order.

(4) The application to adjourn today's hearing is refused.

(5) The application for permission to appeal on the section 25 (oppression/health) and Article 8 ECHR grounds is refused, as is the application to adduce fresh evidence in relation to those grounds.

(6) No order as to costs save that there be a detailed assessment of the Appellant's publicly funded costs.

22.4.21