Kozlow v The Koszalin District Court, Poland

MR JUSTICE LLOYD JONES: On 15th November 2010 the extradition of the appellant to Poland was ordered by District Judge Purdy at the City of Westminster Magistrates' Court. The appellant now appeals against that order pursuant to section 26 of the Extradition Act 2003. The powers of the court on such an appeal are those set out in section 27.

The European arrest warrant was issued on 18th June 2009. It appears that in May 1999 the appellant was sentenced by the Regional Court of Koszalin, which is the requesting judicial authority in this case, to a term of imprisonment of three years. That was in respect of an offence of attempted theft of a vehicle and a further offence of the theft of a vehicle. I note that the appellant had at least one previous conviction. It appears from the European arrest warrant that the appellant was released on licence by order of the judge after completing a little under one half of his sentence. The warrant recites that the length of the term that was still left to be served was one year, seven months and 10 days.

The basis of the extradition request is that the appellant was in breach of the terms of his licence, in particular in leaving the country, and that as a result he is liable to be recalled to serve the balance of his sentence. In fact, the appellant left the country and came to the United Kingdom where he settled in 2006 and where he has made his life with his family since then. Two grounds were relied upon before the District Judge. On that occasion the appellant was not represented and he had to make submissions on his own behalf.

The first ground which he advanced was interpreted by the District Judge as an argument based on article 3 of the European Convention of Human Rights, that he feared extreme violence if returned to a Polish prison. That argument was based on what he said he had experienced during his time in prison there. That argument was rejected by the District Judge and there is no appeal against that part of his decision.

The second ground relied on by Mr Kozlow was that his extradition would be an unjustifiable infringement of his rights to family life and private life under article 8 of the European Convention of Human Rights. In respect of that matter the District Judge gave the following ruling:

Before turning to consider the arguments advanced on this issue on the appeal, it is necessary to refer to an application by Mr Fidler, who appears on behalf of the appellant, to admit further evidence. That evidence falls into two categories. The first is a statement by a Polish lawyer, Advocate Jacub Montowski. That is in the form of a letter dated 18th February 2011. The second category is a witness statement of the appellant's wife, Emilia Wijatkwska-Kozlow, which is in a form that appears before me unsigned and undated. I deal with each category in turn.

On the face of it, the proposed evidence of Advocate Montowski appears to suggest that it is far from clear that the conditional release was ever revoked by the judicial authority. However, Mr Fidler in his submissions to me this morning accepts that it is not open to him to present such an argument because it is inconsistent with the European arrest warrant. In any event, the suggestion is made by Advocate Montowski in such vague and conditional terms that it would be difficult to see how that argument could make very much progress. The fact is that it is not possible to go behind the European arrest warrant in that way. Mr Fidler has explained that he seeks to rely on this evidence in a rather different way, in support of his submission that it would be open to this appellant, if he were returned to Poland to serve the balance of his prison sentence, to make a further application for conditional release to the Polish courts. The significance of this, Mr Fidler says, is that it goes to the whole question of proportionality and the balancing exercise that has to be performed under article 8. He submits that the lower the remaining balance of his sentence the less weight that particular interest can carry in the scales.

Section 27 itself has a bearing on the admission of further evidence and the use which may be made of further evidence. Section 27(2) provides that the court may allow the appeal only if the conditions in either subsection (3) or the conditions in subsection (4) are satisfied. The conditions in subsection (4) are, first, that an issue was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; second, that the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently and, third, if he had decided the question in that way he would have been required to order the person's discharge. The point is made that the evidence would have been available at the extradition hearing if anyone had thought about producing it, however the appellant was not represented at that hearing, so it is perhaps not surprising that the evidence was not adduced.

The judicial authority has properly taken the position that it does not formally object to the admission of the evidence. I think that is an appropriate position to take in view of the fact that the appellant was not represented below.

With regard to each of the two categories of evidence I am satisfied that the evidence could not have resulted in the judge deciding the questions before him in the extradition hearing differently. So far as the evidence of Polish law is concerned, Advocate Montowski does not say in his witness statement that it would be open to this appellant, if returned to serve the balance of his sentence, to apply for further release on licence. In any event, if that evidence were to be formally admitted it would be necessary to permit the judicial authority to respond to it. I have seen a further item of proposed evidence produced by the judicial authority. It is in the form of a document produced by Katarzyna Krystowczyk, who is a District Court Judge. She says that:

Mr Fidler accepts that he cannot gainsay that evidence that, in any event, there would be no release on licence for this appellant until he had served at least a further period of one year in custody. The matter raised by Mr. Fidler is a matter for the Polish court to resolve in due course, but on the basis of the material which has been produced it does appear that this appellant would have to serve a year before he could be eligible for conditional release.

The other category of new evidence is that related to the family circumstances of this appellant. To my mind that adds little to the factual basis on which the District Judge decided the case.

I turn to the essence of the article 8 point. I am prepared to accept for present purposes that article 8 is engaged. The question for consideration will therefore be whether the resulting interference with article 8 rights, in particular the right to family life enjoyed both by this appellant and all the members of his immediate family (see Beoku-Betts) is for a legitimate purpose and is proportionate.

That test of a wholly exceptional case has, however, not been followed in a number of other cases. In particular, in Jaso & Ors v Central Criminal Court No.2 Madrid [2007] EWHC 2983, Dyson LJ, delivering his judgment in the Divisional Court, said this at para 57:

Similarly in Norris V Government of the United States of America [2010] UKSC 9, Lord Phillips expressed the test in this way. He said that it is:

The exercise which has to be carried out by the court therefore is a fact specific exercise requiring careful consideration. It is necessary to have regard to the interests of all of the members of the immediate family (see Beoku-Betts [2009] AC 115). In addition, the best interests of any child directly affected by the decision will be a primary consideration (see ZH (Tanzania) [2011] UKSC 4). In this case it does appear from the ruling of the District Judge that he incorrectly approached the question of proportionality in the balancing exercise which has to be performed on the basis that it is only in the most exceptional circumstances that the return of the person whose extradition is sought could be regarded as disproportionate.

In addressing the competing considerations Mr Fidler has urged upon me the fact that the remaining term is at most one year, seven months and 10 days, but that that has to be reduced for the period on remand in custody whilst awaiting extradition. So far this appellant has been in custody for a period of some four months. In addition, it is at this point that Mr Fidler seeks to rely on the possibility that the appellant might be released on licence in Poland before he serves the entirety of his sentence. Even if that were a proper consideration, in the circumstances of the present case it appears that he would have to serve at least a year of his sentence before he would be eligible for release on licence. I consider that the remaining term is a substantial term of imprisonment. So far as the gravity of the offence is concerned, I consider that these were serious offences. Indeed, Mr Fidler accepts that. Moreover, it is entirely legitimate for the government of Poland to seek to enforce its laws in relation to breach of the terms of the conditions of licence. These are weighty considerations in favour of the return of the appellant to Poland.

Against that must be balanced the effect on his immediate family. This family is well settled in this country. They have been here since 2006. The family unit comprises the appellant, his wife and two children, aged 8 and 5. The children are settled in school in Luton. Mr Fidler accepts that it would be open to them to visit their father in Poland but he submits, and I accept, that sending him back would be very disruptive to their lives. In addition, the evidence is that Mrs Kozlow will lose her job in June 2011. If the appellant is returned to Poland no doubt the family will be placed in difficult circumstances. However, I consider that there is nothing here which is capable of outweighing the very important public interest in the prevention of crime and international co-operation in the administration of criminal justice which extradition arrangements are intended to serve.

For these reasons I am unable to conclude that there would be any unjustifiable infringement of article 8 rights if the appellant were returned to serve the balance of his sentence in Poland. Accordingly the appeal will be dismissed.