Smuda v District Court of Poznan Poland

MR JUSTICE IRWIN: The background to this appeal is as follows, in very short summary. The appellant, Mr Smuda, has been convicted of a number of quite significant offences in relation mostly to serious drugs offences which took place in Poland in or around 2000. He was convicted in January 2004. It seems to be the case that part of the sentence reamined to be served in Poland, as the learned Deputy Senior District Judge Wickham set out in her note of judgment in paragraph 5, tab 3 at the bottom of the first page. This is a note of the judgment in the Magistrates' Court.

In addition to the three year term of imprisonment Mr Smuda was given a further 6 months for a breach of a suspended sentence. Of that total three and a half years Mr Smuda served 1 year, 10 months and 6 days before being released on bail pending appeal, which left a significant portion remaining to be served.

He left Poland and has not served the balance of the sentence. A European Arrest Warrant was issued on 27 February 2006 and certified on 17 May 2010. Mr Smuda was arrested on 27 January of this year, was given bail on 11 April and the final hearing before District Judge Wickham was on 6 May.

Although the appellant's notice is drafted and dated 12 May with the name of Mark & Co Solicitors attached, as the respondents have set out in the skeleton argument, that was not complied with in time therefore the appeal is out of time because notice of appeal must be actually given, in accordance with the rules of the court, within 7 days. The courts in England through to the highest court, the House of Lords, have looked at the language in the Extradition Act, which is the law by which Parliament has enshrined European law dealing with extradition, and there is a strict 7 day limit to an appeal. There is no discretion on the part of a court in England to extend that time and so it is not open to this court to remedy the mistake of the lawyers, if that is what it was, and retrospectively extend the time.

Mr Smuda, through the interpreter, has told me that it was his lawyer's mistake and that he was poorly represented. I cannot reach a conclusion on that but it does not matter; even if the fault was the fault of his lawyer's, the court cannot put it right: I have met this situation before in relation to this time period. It does not make any judge feel comfortable not being able to meet the underlying justice of the situation but it is very well established that I do not have the power to do it.

However, I can go on to say this: even if I could look at the specific worries that Mr Smuda has put forward, the principal of those, the most important, is his safety in Polish prison. Here again the law requires there to be a specific risk of ill treatment directed at Mr Smuda. The relevant authority is a case called Bagdanavicius & Anor, R (on the application of) v [2005] UKHL 38 (26 May 2005), which specifies that where the threat to safety is alleged to come, not from a police officer or a government agent, but from somebody else such as another prisoner then there has to be a very high level of threat, it has to be specific to the individual and it has to be shown on evidence that the authorities cannot prevent that threat taking place. Mr Smuda has told me that the protection levels or safety levels in general in Polish prisons are not good but he has not told me that there is any specific threat to him.

Equally, in relation to his Article 8 right, his family life, I understand from the papers that his son has ill health but, again, in order for that to prevent extradition the circumstances really need to be quite extreme. The same principle applies to his own medical condition.

It is necessary to understand that the whole system of extradition from one country to another is now based on one country trusting the system of another country and in the absence of really clear problems extradition follows pretty automatically.

For all those reasons this appeal fails.

THE APPELLANT: So I was loser from the very beginning anyway. I knew I was going to lose.

MR JUSTICE IRWIN: I am sorry. The point in explaining all of that is that even if the lawyers had acted properly, I see no grounds for thinking there would have been a different outcome in the end. In that sense, you were on a loser from the beginning.

THE APPELLANT: At least I would see that they were fighting and not just ignored me.

MR JUSTICE IRWIN: Of course. I understand. Thank you very much.

THE APPELLANT: (In person) What's happening? What's going to be next?

MR JUSTICE IRWIN: You will be extradited.

THE APPELLANT: (In person) When?

MR JUSTICE IRWIN: That I do not know.

MS PYE: I will explain that.

THE APPELLANT: (In person) May I ask you something? May I get a copy of my criminal record, please?

MR JUSTICE IRWIN: We do not have it here.

THE APPELLANT: (In person) That's funny 'cos my manager from my company they wait on this letter. The solicitors back in court they said to me they have to get a copy from the court, I say, "Okay, go get the copy and send to my manager 'cos they're waiting for this letter." So, after 6 weeks I spoke again with someone from the practice and they confirm, "We send your criminal record to your company. We get a copy from the court," and I just find out now you haven't got any criminal record.

MR JUSTICE IRWIN: The system in England is that the criminal record of any individual is not held by any court, it is held by the Police National Computer.

THE APPELLANT: (In person) Yes, of course, but I see this all a difference 'cos, erm, I tried (Inaudible) but no-one's help me and nobody's tried to help me. So, whatever I say to those solicitors, they don't do nothing. Nothing, nothing. Like I said, that's shameful, the British justice.

MR JUSTICE IRWIN: I understand your view.