Bierowka, R (on the application of) v District Court In Krakow, Poland

MR JUSTICE BEAN: The appellant Mr Bierowka was found guilty of a number of offences of fraud by the Regional Court in Poland and sentenced originally to a suspended term of imprisonment. The suspended term was later altered to an immediate term. The Polish authorities have sought his extradition. Poland is of course a Category 1 territory and so Part I of the Extradition Act 2003 applies.

The appellant was arrested and appeared at the City of Westminster Magistrates' Court before Deputy Senior District Judge Wickham on 27 October 2010. He was represented at that hearing by a solicitor who, I understand, has experience of extradition cases. He did not dispute identity and no bars to extradition were raised or issue taken under Section 20 of the 2003 Act. He did not however consent to his extradition to Poland. The Deputy Senior District Judge found that there were indeed no bars to extradition under the Act and further found that extradition would not be incompatible with Mr Bierowka's rights under the European Convention on Human Rights. Indeed it was not argued otherwise. Accordingly she ordered his extradition to Poland on all four European arrest warrants.

This is an appeal pursuant to Section 26 of that Act from that decision. The first point taken by the respondents was raised in correspondence as early as 9 November 2010 which is that no sealed notice of appeal was served on the Crown Prosecution Service as agents for the requesting state within seven days. A notice of appeal was certainly lodged at the court and sealed on 1 November. That is in good time. If no sealed notice of appeal was served by 3 November that would appear to be fatal to the appeal following the decision of the House of Lords in Mucelli v Albania [2009] 1 WLR 276. I have not gone into the question of fact as to whether a notice of appeal was served. I should be reluctant to decide the case on such a technical point, but it is unnecessary for me to resolve the issue in the light of my conclusions on the substantive merits of the appeal.

I take the same view of what might be described as the second technical point available to the Polish authorities which is that the matters being raised in this court were not raised at first instance. Like the failure to serve a notice of appeal in time, that too can be a fatal difficulty for an appellant (see Szombathely City Court and Others v Fenyvesi [2009] EWHC 231 Admin). Again I prefer to consider the substantive matters raised before me and put the technical bars to one side.

The original written grounds of appeal raise an issue not taken in the lower court which was that the suspended sentences of imprisonment were activated by the Polish court in the absence of the appellant, that this should have engaged Section 20 of the 2003 Act, and that had the district judge so found she would or should have ordered the appellant's discharge. That point was abandoned, rightly, if I may say so, in the skeleton argument lodged on the appellant's behalf by Mr Kamil Krajewski in the light of the recent decision of Mr Justice Burnett, sitting in this court, in Sawko v Circuit Court in Gorzow Wielkopolski, Poland [2011] EWHC 68 Admin. I agree with all that Mr Justice Burnett says in that judgment.

Mr Krajewski's skeleton argument asks me to order that Mr Bierowka's extradition should be made subject to the condition that he will be allowed to serve any prison sentence in the United Kingdom. That was not raised before the district judge, but neither she nor I have or would have had power to make such an order. Under Section 27 the court must either allow an appeal against extradition or dismiss it.

The authorities cited in support of the written argument are two Council Framework Decisions on the European arrest warrant and co-operation between Member States. They do not seem to me to assist the appellant's case. The 2002 decision on the European arrest warrant - Article 4, paragraph 6 - deals with cases where the requested person is staying in the executing Member State, in this case the United Kingdom, and that State undertakes to execute the sentence or detention order in accordance with its domestic law. No such undertaking has been given in this case, and I do not see how it could have been.

Article 5 of the same 2002 Framework Decision permits surrender subject to the condition of return to the executing Member State after the fugitive has been heard in the courts of the requesting State but only, as the introductory words to the Article emphasise, where that is a procedure provided for by the law of the executing Member State.

There are some provisions in the 2003 Act for the return of individuals following extradition (see Sections 37 and 52) but there is no provision for the condition that is sought in the appellant's skeleton argument.

The skeleton argument also refers to the Framework Decision of 2008 on mutual recognition in criminal matters regarding the imposition of custodial sentences. That will only come into force as from 5 December 2011. Reference is also made in the skeleton argument to two decisions of the Luxembourg Court in Kozlowski and Wolzenburg. They do not take the matter any further. I note in particular that Wolzenburg (the more recent) is concerned with an EC Treaty provision applicable to persons who, at the time of the relevant court decision, have lawfully resided for a continuous period of five years in the Member State of execution which, at the time of the Deputy Senior District Judge's decision, Mr Bierowka had not, since he came to this country in July 2006.

In any event, the 2008 Framework Decision allows certain provisions to be introduced by executing States. They are not compulsory and no such provisions have been introduced here.

I turn from the skeleton argument to the matters which Mr Bierowka, who has today appeared in person, has raised before me. He tells me that there is to be a hearing in Poland on 16 and 17 March at which he is confident he will be able to have the sentence of immediate imprisonment set aside and the matter compromised in some way by the payment of compensation. I have no details of this but I am prepared to take it from him that a hearing is planned for mid-March at which he will seek to persuade the Polish court to decide in his favour. He submits to me that it would be extremely unfortunate if he were to be extradited to Poland, to lose his job here only to secure his discharge from the criminal proceedings in mid-March. He therefore asks me to adjourn this appeal rather than proceed to a decision dismissing it.

I am not prepared to adjourn this appeal. It is for the Polish court, not this court, to deal with any application by him to set aside the sentence of imprisonment. I am in no position at all to say what his prospects of success are, if any, nor even to know whether a final decision will in fact be made on or about 16 March. There is a discretion to delay surrender to the requesting authorities under Section 36 of the Act, but it does not appear to me that it is a discretion to be exercised at the request of the fugitive simply in the hope or even the optimistic expectation that the court of the requesting State will make a decision in his favour. In short, the time has now been reached when Mr Bierowka must return to Poland and face the music in the courts of Poland.

For all these reasons I have to dismiss his appeal.

Mr Sternberg, are there any applications?

MR STERNBERG: Yes. It is a slightly unusual application. May I ask for an expedited transcript of this judgment. The reason is that the same issue regarding serving a sentence in this jurisdiction has been raised in another appeal which is due to be heard by Mr Justice Kenneth Parker. In fact it was adjourned by him yesterday. It is back on 14 February. That is why I make the application.

MR JUSTICE BEAN: Yes.

MR STERNBERG: I am grateful.