Radziszewski v Circuit Court In Olsztyn

LORD JUSTICE TOULSON: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Evans given on 30 November 2009 at the City of Westminster Magistrates' Court to order the appellant's surrender to Poland. The appellant is a Polish national aged 42. His extradition is sought by the judicial authorities in Gdansk on two European Arrest Warrants. The first (EAW 1) was issued on 25 November 2008. It concerns three offences of robbery and one offence of attempted robbery. The appellant was convicted of all four offences and given a prison sentence. The warrant seeks his extradition to serve an outstanding period of one year and five months.

EAW 2 was issued on 3 February 2009. It concerns an offence of drug trafficking. The appellant was convicted, and the warrant seeks his return in order to serve an outstanding period of three years, five months and 28 days.

EAW 1 was issued on 25 November 2008, and was certified by the Serious Organised Crime Agency (SOCA) on 5 February 2009. EAW 2 was issued on 3 February 2009, and was certified by SOCA on 6 August 2009.

The appellant was arrested on 2 August 2009. Thereafter, there were a number of hearings at the Magistrates' Court, culminating in the hearing at which the order was made for his extradition. On that occasion the appellant gave evidence in which he adopted two written statements, and gave oral evidence in addition to them.

The sole issue before the District Judge was whether the appellant's extradition would be incompatible with his rights under Articles 2 and 3 of the European Convention on Human Rights.

In summary, the appellant's case was that he had provided information to a Polish police officer about the whereabouts of a substantial supply of drugs. The drugs belonged to some serious professional criminals, who were in prison and planning to make use of the drugs upon their release. The inducement to the appellant to give information to the police officer about the drugs hoard was that the police officer would then see that steps were taken to help the appellant in an appeal against his sentences with a view to him not having to serve any further time in custody, and he would then be able to flee Poland and make a new life elsewhere. However, the police officer did not deliver his part of the bargain, and when a summons was issued against the appellant requiring him to attend court with a view to being sent to prison to complete the balance of his sentences, he fled the country.

The District Judge noted that there was no independent evidence to support the appellant's story. He had not identified the names of the people concerned, other than giving a pseudonym for the police officer. That, of course, is understandable if the appellant's story is true. As to that, the District Judge said that it was impossible for him to judge whether the story was true or was exaggerated or was completely untrue. However, he concluded, on the basis of material provided by the Polish judicial authorities, that he was not persuaded that the appellant's return to Poland would breach his Article 2 and Article 3 rights, because the Polish authorities recognised their duty to look after his safety while in custody, and were able and willing to discharge their responsibilities.

The appeal is based on Articles 2 and 3. The appellant has been unrepresented on the hearing of the appeal, but through an interpreter the court has heard two substantial prepared written statements from him in which he reiterates his account of the facts leading to his coming to the UK, and also addresses the human rights issues.

As to the veracity of his story, the appellant comes across as a credible person and his evidence may be true. On that basis, we have to consider whether his return to Poland would infringe his Article 2 and Article 3 rights or, to put it more accurately, whether he has established a real risk that this would be so.

One of his concerns is that, even at liberty in Poland, he stands a real risk of being killed or grievously injured by those organised criminals whom he has effectively betrayed, not by identifying their names to the police, but by letting the police know where the drugs could be found. This will have caused those organised criminals to suffer significant financial loss, and that is not something that they will be happy about. He says that he has information that a contract has already been taken out on his life, and he has received a written threat while he has been in custody in the UK.

Insofar as the appellant may be at risk in Poland while at liberty as a result of his previous activities, on established authority that is not, in our judgment, a matter which can give rise to an Article 2 or Article 3 claim. He has chosen to mix with serious criminals in criminal activities, and if the result is that they are out to get their revenge on him, that is not of itself something which can give rise to a claim that he should be allowed to remain in this country on Article 2 or Article 3 grounds.

Entirely different considerations apply in relation to his future time in custody in Poland, because there he will be under the control of the Polish authorities, who will have a responsibility for his safety. So the critical question is whether there is a real risk of him suffering serious violence, or indeed even murder, while in prison in Poland.

Taking it as possibly true that there are professional criminals in Polish prisons in the Gdansk region who would be perfectly capable of inflicting such harm on the appellant if they have the chance, the question is whether there is a real risk of this occurring.

On the evidence, the appellant has two potential safeguards. First, his concern is particularly about risks in a prison in the north of Poland. It is not suggested that the same level of risk would apply if he were in a prison in southern Poland. The decision where he should be sent to complete his sentence would be taken by a Central Penitentiary Commission. At the time of the hearing before the magistrates, Miss Rafter, for the respondent, said that it was thought that the appellant, or those representing him, might wish to make contact with that Commission. That has not happened, and it is clear from what the appellant told the court this morning that he made a conscious decision not to approach the Commission. But it remains open to him to do so, and given that, according to the information provided by the Polish authorities, safeguarding prisoners is a matter which they recognise is part of their responsibility, we have no reason to suppose that the Penitentiary Commission would refuse to place him in a southern prison if good reason is shown to the Commission why that ought to be done for his own safety.

There is a second means of ensuring the appellant's safety in a prison, whether in the north or the south of the country. Taking a realistic view of things, however much any prison authority may wish to guard against violence by one inmate towards another, it is not something which can always be prevented in the main parts of many prisons. It is for that reason that, under many penal systems, prisons have special units to protect vulnerable prisons. It is apparent from the evidence which we have heard that Polish prisons have a similar system. They have what we would know as a vulnerable prisoners' unit. The appellant has recognised that in the submissions he made to the court today, but he said on more than one occasion that his objection to being housed in what for shorthand I will call a VPU is that the other prisoners in that unit are likely to be paedophiles and ex-policemen. They are not people who, he says, you could have a conversation with, and he says that to be housed with them is, in his words as translated from Polish, "a catastrophe". What is not suggested is that he would be unsafe there. While his fellow inmates might be socially disagreeable to him, that cannot of itself trigger a claim under Article 3 or Article 2.

For those reasons, we are not persuaded that the enforcement of this order would cause a real risk of contravening the appellant's Article 2 and Article 3 rights, and accordingly the appeal is dismissed.

I add one post-script. The appellant said in his submissions that while he is perfectly content to serve the remainder of his prison sentence, he would wish to do so in the UK and not in Poland. That is not a matter which this court has any power to do anything about. We are concerned merely with the lawfulness of the Extradition Order made under the 2006 Act.