Nogalski v Judicial Authority of Poland

MR JUSTICE OUSELEY: Mr Smith has advanced with economy and realism an application to adjourn the hearing of this appeal against the decision of the District Judge at the City of Westminster Magistrates' Court ordering the appellant's extradition to Poland to face the balance of 1 year, 7 months and 24 days of a 2-year sentence of imprisonment for assaulting a police officer in the execution of his duties, and assault with intent to resist arrest. This sentence was imposed in March 2003.

The hearing before the district judge was not contested. The appellant was represented before him by Kaim Todner. No issue was raised in relation to Article 3 and prison conditions. The grounds of appeal were submitted by a different firm, Duncan Lewis and Co, who said that grounds of appeal would follow but the district judge was wrong in his assessment of whether extradition would be compatible with Article 8 of ECHR and a new argument under Articles 3 and 6 would be explored.

I add that Article 6 would be inapplicable because this is a conviction case already, and Article 8 has not been pursued. What is pursued is Article 3. No material of substance was put in until very recently. The previous solicitors want to come off the record, they may formally still be on it, and Mr Smith has appeared on the Direct Access scheme. He has provided a full skeleton, which is essentially an overview of evidence as yes unproduced in relation to prison conditions and Mr Nogalski has produced a statement referring to the conditions he experienced during the four months he was in custody in 2002 or 2003.

The skeleton argument contends that the prisons are overcrowded, that people are often unable to sleep properly, the conditions trigger aggression, prisoners have to wait for a cell to become available as part of a solution to systemic overcrowding which means that those extradited have to resort to crime to survive, prisons are terribly cold in winter, there is a hierarchy of prisoners and the guards are complicit in ill-treatment, and in particular would afford no protection to somebody convicted as the appellant is of offences against a police officer.

The skeleton refers to the potential for a witness statement from a Miss Sizcek from another case, which I have considered. That is evidence relating to conditions she was aware of, as a female prison officer, up to 2006. So none of the evidence from Mr Nogalski which should have been available to the District Judge and Miss Sizcek's evidence, is up-to-date. The skeleton also refers to the decision of the European court in Orchowski. Polish prison conditions have been considered in a number of cases since Orchowski. I mention for these purposes the decision in Pisarek v Regional Court in Elblag 11 [2010] EWHC 877 (Admin), the decision of Toulson LJ in Targosinski, R (on the application of) v Judicial Authority of Poland [2011] EWHC 312 (Admin) and my own judgment in Slowinski v Polish Judicial Authority, the neutral citation of which if it exists I do not know.

The position is that circumstances in Poland have been considered by this court on a number of occasions post Orchowski, and they have been found not to breach Article 3. Mr Smith seeks an adjournment in order to come forward with much better evidence, he says, on systemic problems, but what he has produced so far is no different from material that has already been considered. There is nothing to suggest that there is something startling on the horizon which would create a real prospect of a breach of Article 3.

I accordingly refuse the adjournment because I see no value in it, but in any event, Mr Smith would have had a very serious uphill struggle in relation to this issue. If it is to be raised, it has to be raised before the district judge in the first place anyway.

Accordingly, this application for adjournment is refused and largely for the reasons which I have rehearsed in the refusal for the adjournment, the appeal is dismissed.

Thank you very much, Mr Smith.

MR SMITH: My Lord, I am much obliged.