Sawko, R (on the application of) v Circuit Court In Gorzow Wielkopolski, Poland

MR JUSTICE BURNETT: This appeal came before a Divisional Court on 16th December 2010, in which I sat with Laws LJ. On that occasion no interpreter was present and it became clear that the appeal could not proceed.

The appellant had sought an adjournment in writing a couple of days earlier to enable further steps to be taken on his behalf by lawyers acting for him in Poland. An adjournment on those grounds was refused. As part of his submissions before me this morning, the appellant has again prayed in aid the fact that his Polish lawyers are seeking to resolve the underlying proceedings. Although no adjournment was sought this morning, it would have been inappropriate to put off these proceedings again. Furthermore, the fact that there are ongoing legal proceedings in the requesting country does not form a ground of appeal under the statutory regime.

On 16th December, we extended time for the hearing of this appeal and adjourned the matter for the presence of an interpreter. In addition, we directed that the appeal could be heard by a Single Judge in the Administrative Court. It is in those circumstances that the matter comes before me today.

On 1st September 2010, District Judge Riddle ordered the extradition of the appellant to Poland pursuant to section 21(3) of the Extradition Act 2003. This is an appeal against that order pursuant to section 26. A European Arrest Warrant was issued by the circuit court in Gorzow Wielkopolski on 4th December 2008. It related to the appellant's final conviction on 20th January 2006 for offences concerning pornography and children. He was sentenced to one year's imprisonment, suspended on terms for three years. It was a condition of the suspension of the sentence that the appellant maintained contact with the probation service. He left Poland and came to the United Kingdom in 2007, in particular to find work.

On 16th June 2010, the regional court activated the suspended sentence, to use language familiar in this jurisdiction. As the chronology shows, the warrant was in fact issued before the court activated that sentence, although the warrant was not certified in the United Kingdom until June 2010.

No bar to extradition was raised before District Judge Riddle. Instead the appellant developed two arguments by reference to the European Convention on Human Rights. First, he submitted that, by reason of the presence in the United Kingdom of his wife and young child, extradition to Poland would violate Article 8 of the Convention. Secondly, he argued that his removal would involve a breach of Article 3 of the Convention because of his fears that in consequence of the nature of his offending he would be vulnerable to attack and other adverse consequences on his return to Poland.

The District Judge rejected both those arguments. In the notice of appeal filed in these proceedings before me, those arguments were not repeated. However, in argument this morning Mr Sawko has put at the forefront of his submissions those two factors. Mr Sternberg, who appears for the respondent, has taken no technical point. As a result, I shall deal briefly with those arguments.

The appellant has expanded upon his domestic situation in the United Kingdom. He is plainly deeply affected by the possibility of separation and, no doubt, the alternative of uprooting the family to Poland. There has been considerable recent learning in the Supreme Court and the European Court of Human Rights about the circumstances in which Article 8 might be prayed in aid to resist extradition. In the recent case of Norris v Government of the United States of America [2010] UKSC 9, Lord Phillips, with whom the eight other Justices agreed, explained that "only the gravest interference with family life will be capable of rendering extradition disproportionate to the public interest it serves". The facts of that case were undoubtedly strong but not strong enough.

In King v United Kingdom 9742/07, the Strasbourg Court considered an application manifestly unfounded. The facts were that the applicant was to be extradited to Australia. He had a wife and two small children in the United Kingdom. His wife was ill, indeed too ill to be able to follow him to Australia. A protracted separation was therefore an inevitable consequence of extradition. In considering the application manifestly unfounded, the Strasbourg Court considered that the facts were not such as to give rise to an arguable breach of Article 8.

So far as the perceived threat of any violence of other adverse consequence on return to Poland is concerned, the law is again well settled. The appellant is concerned about the behaviour of non-state actors. Such a perceived threat can only provide succour for Article 3 purposes if there is clear evidence of the state's unwillingness or practical inability to provide protection. There is no such evidence as regards Poland, which I note is a member of the European Union as well as a party to the ECHR.

I turn now to the three arguments advanced in writing. (1) It is suggested that extradition is barred by section 20 of the 2003 Act because the sentence was activated in the appellant's absence when he had no notice of the hearing. (2) It is suggested that the appellant will not have a retrial on return to Poland with the consequence that there will be a flagrant denial of justice for the purposes of Article 6 of the Convention. That is the concept discussed in the House of Lords in R (Ullah) v Special Adjudicator [2004] UKHL 26.

So far as ground 1 is concerned, the appellant was originally convicted in his presence by a district court on 22nd July 2005. His conviction was affirmed, again in his presence, before the circuit court on 20th January 2006. It was then that the sentence was announced. It is, of course, correct that the sentence was activated, again to use familiar language, in the absence of the appellant because he had left the country.

Section 20 of the 2003 Act provides:

The structure of section 20 requires the District Judge, having decided that the conviction occurred in the presence of the person concerned, to move to the human rights issues which arise under section 21. The argument advanced by the appellant is that the decision taken on 16th June amounted to a fresh conviction for the purposes of section 20 with the consequence that he should be discharged. That was an argument which was in substance advanced in the case of Baksys v Ministry of Justice of the Republic of Lithuania [2007] EWHC 2838 (Admin). In that case, the argument was rejected: see paragraphs 9 and 10.

Part of the difficulty in that case was that there was no material before the court which enabled it to know with any degree of certainty what would happen in Lithuania. Similarly, in this case there was no information on that matter before the District Judge. However, there is material before me in the form of a translation of legal documents provided by the appellant in connection with appeal proceedings he has on foot in Poland. The document is entitled "The defence appeal". These documents relate to the appellant's appeal against the recent decision of the regional court which requires him to serve the original sentence. The appellant has explained his hope and expectation that those proceedings will come to a conclusion in the near future. He says he has also been advised that they will be successful.

The written material, augmented by the further explanations provided this morning, shows conclusively that not only is there an appeal available to the appellant in Poland but that the appellant is actively pursuing it. Therefore the District Judge could not have discharged the appellant under section 20 even if there were any underlying merit in the suggestion that the activation of the sentence was a fresh conviction. The District Judge would have been required to consider the human rights arguments in any event: see sections 21(5) and (8).

The second ground advanced in writing, namely the Article 6 point, was based on the proposition that the appellant is not entitled to a retrial on return to Poland. A retrial in respect of the original conviction is not an issue. The appellant has not suggested that there should be such a retrial. The issue arises in connection with his ability to challenge the activation of his sentence. As I have already indicated, the evidence shows that he can and is challenging that decision. In consequence, it follows that there is nothing in the Article 6 point.

The third written ground relates to Article 3 and is founded on the proposition that incarceration in Polish prisons inevitably gives rise to a real risk of ill treatment contrary to Article 3. Beyond an assertion contained in the grounds of appeal, there is no evidential foundation for that argument. In any event, it runs up against profound legal obstacles. Poland is a Category 1 country for the purposes of the 2003 Act. Such countries are members of the Council of Europe and of the European Union, as I have already noted in respect of Poland. They are countries in which the courts of the United Kingdom repose particular confidence, as regards both the judicial and governmental arms, that the European Convention on Human Rights will be respected. Any alleged breaches of the Convention will be properly adjudicated upon with such vindication of the rights guaranteed by the Convention as is necessary. There is, of course, the additional safeguard in such circumstances of an application to Strasbourg, including an application under rule 39 for interim measures.

This court has consistently rejected Article 3 arguments founded on prison conditions in Poland, even when extensive material in the nature of international reports has been produced.

Section 27 of the 2003 Act govern this court's powers on an appeal:

(5) ..."

I have already indicated that the two arguments advanced before the District Judge, which have been repeated before me, have no substance in law. The three arguments advanced in writing were not raised before the District Judge but, had they been, no question would have been decided differently and the appellant's discharge would not have been ordered.

In those circumstances, it follows that I am obliged to dismiss this appeal.