Laskowski v District Court of Legnica Poland

MR JUSTICE COLLINS: This is an appeal against a decision of the District Judge to extradite the appellant to Poland to serve sentences of imprisonment imposed there.

The decision in question was made on 14th December 2010. At the lower court the appellant asked for an adjournment largely because he wanted to complete medical treatment which he was undergoing as a result of having had a heart attack in 2010. He was under the doctor and was on particular medication for a period which was not due to come to an end until May 2011.

The District Judge refused the application for an adjournment whereupon no other challenge was made to the European Arrest Warrant and the request from Poland and as a result the District Judge decided as he did. There was also no note of any judgment because there was no judgment that needed to be given, so far as the extradition itself was concerned.

He has not been represented in this appeal by lawyers. I am told that he was represented by a solicitor before the District Judge but he was apparently advised or told that once the application for the adjournment had been refused, there was nothing that could be said on his behalf; even though he wanted to challenge in some respects the extradition.

There are three offences which are referred to in the warrant. The first is what is described as an attempt to commit house breaking, the house in question apparently being a car -- maybe there is a question of translation there -- but in any event it was breaking into a car with others and attempting to steal. They were in fact thwarted by the owner of the car. That was in July 1997. The second offence took place in June 1999. It is described as banditry; in fact it amounted to a robbery, a robbery with violence of a minor and theft from him. Finally there is an offence committed on 11th February 2001 when he was, as it is put, unsober, having 0.8 milligrams of alcohol per millilitres of blood. (I assume that it equates to the 80 test which was in force here.)

The penalties that were imposed and which he now has to serve in accordance with the request were for the offence of attempted theft from the car, 11 months and 28 days; for the offence of robbery, banditry, as it is described, 3 years. There is also a period of 14 days in relation to the drink driving but the actual penalty has not yet been imposed.

I deal with the drink driving first for this reason. The arrest warrant indicates that there are limitations under Polish law for the punishability of offences. The period of limitation in relation to the drink driving offence is 10 years. The result is, and this is set out in the warrant itself, that the limitation of punishability shall be on 11th February 2011. Further information from the prosecuting authority indicates a different date, but one equally before today's date. In any event, it is apparent from the face of the warrant itself and further information confirms that no penalty can now be imposed in relation to the drink driving offence. Accordingly, on those facts it would be wrong for there to be extradition on that offence. So to that extent in any event this appeal will have to be allowed.

So far as the other two matters are concerned, it is apparent that there are no grounds for challenging the extradition in relation to them, save for one matter, which is what is now relied on and that is the state of the appellant's health. It is submitted that it would be oppressive for him to be returned because of his state of health at present. I say "at present" advisedly because what is essentially relied upon is to be found in a report provided by a Dr Connolly who has been treating the appellant since he had a heart attack on 25th May 2010. He spent a few days in hospital, having an angiography and he was then put on what is described as "a regimen of cardio protective drug therapy". This included a number of drugs including in particular one called Clopidol, which the doctor stated must continue uninterrupted until the end of May 2011, ie it was a year's requirement for that particular drug. There are other drugs which he has to take to control his blood pressure and his cholesterol perhaps. Those, it may well be, he will have to continue, certainly for the foreseeable future but they are drugs which are, subject possibly to one of them, readily available throughout Europe. There was also a need for exercise which he has to take regularly and there was also a particular regime which has now come to an end.

Unfortunately, albeit a substantial skeleton argument was produced on behalf of the appellant by Mr Krajewski, who is acted as his McKenzie Friend before me, it was not served upon the CPS as it ought to have been. As a result the CPS has not been aware of the details of the medical matters relied upon and the points being made on behalf of the appellant until I think Friday last.

It is accepted that this was an error on the part of the appellant. It seems that Mr Krajewski passed to him and to the court a copy of his skeleton argument expecting Mr Laskowski to send a copy to the CPS. Regrettably, as I say that was not done.

I should say that in so far as the drink driving is concerned Miss Rafter has indicated that she has no instructions from the Polish authorities as to the limitation point but she recognises that the arrest warrant, on the face of it, speaks for itself. Therefore, has not sought to persuade me that I should put the matter over to enable nor to get formal instructions as to whether the limitation period has indeed expired.

The point made on behalf of the appellant is that because he has not been in Poland for the last 10 years he is not in the insurance scheme that is available there and will find it difficult, if not impossible, to afford the medication which has been prescribed for him. It is said too that one of the drugs, Ezetimibe, may not be available. I have considerable doubts as to whether that is the true position. I am quite sure that the drugs which he needs are available in Poland. I am equally sure that the Polish authorities will provide the necessary treatment to ensure that he has what he needs whilst he is in custody. I say that, partly because I have had reference made to a decision of Ouseley J in R (On the application of Mikolajczyk) v Wroclaw District Court (C0/9561/2010). That was a case where the claimant had very much more serious medical problems and enquiries had been made of the Polish authorities to see whether the necessary treatment would be available. Ouseley J records in that case the response that had come from the Polish authorities in the form of two letters. One in general terms saying that all necessary medical assistance is provided to persons that require it; which is perhaps the one that matters for this purpose. Indeed, to be fair it is not suggested that the Polish authorities would not provide what was necessary. Of course they would have know what was necessary and it is obviously essential that they have forwarded to them the report of Dr Connolly, ideally an up-to-date report indicating what the regime is and why it is necessary that it be continued. That is something which I am sure the appellant can obtain from Dr Connolly or whoever is in charge of his condition at the present time because obviously the updated position is what is needed.

It has been submitted in the circumstances that what I should do was at least to ensure that his extradition to Poland did not take place until the end of May or until he had available the necessary medication, so that he can continue to take it up to the end of May. I note that in the case I have referred to before Ouseley J a similar submission was made and he was sympathetic to the suggestion that it might be possible to recommend the extradition authorities to postpone actual removal until an operation on that appellant's teeth had been carried out in this country, which was apparently due so that he would be in a position to be removed in February. As I have said, the decision in fact in that case was 20th December 2010, so it was a question of a couple of months, which is of course the position here 2 months on.

It seems to me, in the circumstances, that it is quite impossible to say that the condition of the appellant is sufficiently serious to say that it would be oppressive within the meaning that the authorities show that to bear in section 25 of the 2003 Act. However, I know from my experience that Poland's system of repatriating those whose extradition has been agreed involves the sending of military aircraft at various intervals, depending no doubt on how many are to be repatriated. There are often requests for extension of time because once this appeal is dismissed, time begins to run and removal must take place within 14 days unless a judge extends time.

Time can be extended by agreement of the appellant and the receiving State. Of course an application would normally have to be made but I have indicated, in a decision given some time ago now, that in general the court would be sympathetic to and would allow an application on the basis of the Polish arrangements which are reasonable arrangements but which sometimes have to result in an extension of time.

What I would propose to do here is to indicate that I will extend time until the end of May, if there is agreement to that effect. I would encourage the Polish authorities to agree that, so that the appellant will return, having completed that part of his regime which has to be completed by the end of May and thereafter can receive the necessary treatment. Alternatively, he can obtain for himself, from his general practitioner, the necessary medication. I gather he usually gets a month's worth at the time. It will be necessary perhaps for him to get more than the month's worth. But obviously the sensible thing is for discussions to take place between the appellant through, one hopes if Mr Krajewski is willing himself and the CPS to try to ensure that a sensible arrangement is made whereby either the appellant has his drugs with him when he goes, together with a letter indicating what the treatment is that is needed when he returns to Poland, or the Polish authorities agree that he does not need to be removed until the end of May. As I say, if they do agree, I will make in advance the necessary order to allow that to take place. If it is not necessary, because other arrangements can be made, then that will be the position.

In those circumstances and for the reasons that I have indicated, this appeal will be dismissed. I think that covers it all, does it not?

MISS RAFTER: My Lord yes.

MR JUSTICE COLLINS: I do suggest that he does go to his GP and sees whether he can get the necessary... I shall extend bail on the same terms until he is required to attend. He will be notified in due course when he is required to attend for the purpose of removal.

MISS RAFTER: May I raise a single point?

MR JUSTICE COLLINS: Yes?

MISS RAFTER: It is in respect of the limitation matter. Your Lordship will recall that I referred to the case Philipa, where there was a warrant and then further instructions which then had in fact not been inspired. I accept that is not what the position I was in. My only concern about the way it is currently worded, I wish to ensure whether your Lordship was intending to set any precedent by it is that this case should be deemed as factually specific.

MR JUSTICE COLLINS: Yes, that is clear. I said that you had not raised the point which you did not.

MISS RAFTER: I just would not want it to be seen as being that simply it being contained within the European Arrest Warrant was then that therefore deemed in all cases to us be....

MR JUSTICE COLLINS: I do not think I said that and certainly I will make that clear when I correct the transcript if you like.

MISS RAFTER: I am grateful for that my Lord, and forgive me for raising it.

MR JUSTICE COLLINS: I understand.

MISS RAFTER: It is just that I do say this is different to other cases on the facts.

THE MCKENZIE FRIEND: If I raise so, my Lord, I know this case Philipa case because I (inaudible) Different between Mr Philipa and this case is that this case this is prescription of persecution which is 10 years. In Mr Philipa case it was prescription Polish matter. He was sentenced.

MR JUSTICE COLLINS: It may be but you do not need to worry. In the circumstances of this case that has gone. Actually I say "dismiss the appeal", I suppose I should allow the appeal technically, should I not, in order to deal with that?

MISS RAFTER: The third offence.

MR JUSTICE COLLINS: The order should be that the appeal is dismissed save that the drink driving offence is....

MISS RAFTER: The extradition is in respect of--

MR JUSTICE COLLINS: Limited to the first two, and not to the drink driving but technically the appeal has to be dismissed in relation to those first two.

MISS RAFTER: Yes.

MR JUSTICE COLLINS: Yes. Can you perhaps draft the necessary order that makes that clear.

MISS RAFTER: My Lord, yes.

THE MCKENZIE FRIEND: The last question: what if, I know there is no your Lordship in a position to give advice, but what if the Polish authorities that will response to Mr Laskowski and say: we are sorry Mr Laskowski, we cannot provide you with this medical treatment in prison. What then?

MR JUSTICE COLLINS: I do not think that will happen. There is always a liberty to apply to the court if it transpires that something has gone badly wrong. But I do not think it will happen.

As I say, do have a word with the CPS who will pass this on to the Polish authorities and I do not want any breakdown in communications to lead to problems.