Olczak v Polish Judicial Authority

MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of the District Judge given on 25 May 2012, whereby he ordered the appellant's return to Poland to face a charge set out in the arrest warrant in question. The charge was stated to be contrary to article 297(1) of the penal code, namely a crime against economic turnover, or a credit swindle. That is how it is described in the warrant. Thus this is an accusation case. The appellant was represented by a duty solicitor before the District Judge and no argument was raised against the extradition, no point was taken, albeit there was no consent to extradition.

The appellant now asserts through counsel that he was given thoroughly bad advice and that he did indeed, and does, have grounds for challenging the extradition. The grounds, essentially, are, first, that the warrant does not disclose an extraditable offence; secondly, there has been an excessive delay in seeking both the domestic and then the extradition warrant, since the offence alleged was committed in February 2006; and, finally, it is said that there is a breach of Article 8 if the appellant is extradited because such extradition would in the circumstances not be proportionate.

When this appeal was lodged an order was made by Ouseley J on 28 June 2012 in these terms:

The appellant's present solicitors, who apparently had conduct of this case from 29 May 2012, and who indeed were responsible for lodging the appeal, applied for an extension to 29 August. That was granted. Since then nothing was heard from the solicitors until yesterday when a bundle was served containing a statement from the appellant and an explanation from the solicitor of the conduct of the case and the difficulty of obtaining information from the duty solicitor who represented him before the District Judge.

I am afraid I have to say that the conduct of the solicitors is totally inexcusable. They have failed to take any proper notice of the order made by Ouseley J. I want to make it clear that those orders are meant to be obeyed and if they are not there is a real risk that the appeal will be struck out and it certainly will be dealt with on the basis of such evidence as existed when the appeal was lodged. The court will not take into account any further evidence that is produced. The only caveat may be that if in a given case it is apparent that there would clearly be a breach of human rights to extradite, the court as a public body within the meaning of the Human Rights Act might in those circumstances take the view that it was appropriate to have regard to the further material. I underline the word might. It is by no means certain. However, the one thing which is clear from this case is that there is no strong case that it would be disproportionate to extradite. There is no family life that can be relied on, as Mr Hawkes recognises. The only alleged breach of Article 8 could result from the private life that the appellant has established, having come to this country in March 2007.

So far as delay is concerned, the offence, if committed, was, as I say, committed in February 2006. The appellant was interviewed by the police. This appears from his statement, which, for the purposes of this consideration, I have regard to. He was never told that no further action would be taken against him. It was a question, having been interviewed by the police, for the prosecutor. He says he heard nothing and so decided to come to this country. He does not say why but one assumes for the purposes of finding work. As one knows, the situation in Poland is not satisfactory in that regard. Be that as it may, as I say, he came here. He says that he has learnt that there was a communication with his parents because his whereabouts were unknown. He does not say when that was but it appears to have been shortly after he arrived in this country.

The domestic warrant, Mr Hawkes points out, was not issued until 2011 and he submits that there is no explanation given for the delay and therefore I should regard it as culpable. The difficulty with that submission is that it was not until yesterday that this statement was served. There is no conceivable excuse for not having served it before 29 August. Thus if explanation was regarded as necessary, the CPS could have sought explanation from the Polish authorities as to why it took 5 years to issue the domestic warrant. For all I know, there may have been a perfectly good reason for that, having regard to the fact that the appellant had left the country and it was not known where he was. It seems to me that it is in the circumstances quite impossible for me to find as a fact that the delay was culpable. Accordingly, there is nothing in the argument raised under section 20 of the Act.

That leads me to the argument that the warrant does not disclose an extraditable offence. What is said so far as the description is concerned is as follows. First, that under E1 the circumstances were that he was acting to achieve a loan in the amount of 15,000 zloty (which I am told is about £3,000), hiding a fact of managing his business under the company, and the name is given, he presented at what I think is the loan company's branch office in Warsaw a certificate confirming untruth of his employment in the relevant company as a mechanic and of his remuneration of 1,870 zloty as at 17 February 2006, and that it was of vital importance to grant him the loan. That is expanded slightly in that under E2 it is said that he was acting to achieve a loan in the amount of 1,500 zloty, hiding a fact of managing his business under the relevant company and he produced, apparently, a certificate which is said to confirm the untruth of his employment.

He asserts that he is not guilty of any offence, and reference has been made to a letter from the loan company in which it is said that the application for the loan was refused, but that does not help him because, of course, if he was dishonestly attempting to obtain a loan then that is an offence. What is essentially relied on is that albeit the relevant paragraph of the penal code deals with an offence involving dishonesty, the word credit swindle is used, but that box was not ticked in the list of offences which can be set out in the warrant. If it had been, Mr Hawkes accepts that he would had have no argument on this point, but he says it was not ticked as swindling and therefore it follows that it cannot be regarded as an offence involving any form of dishonesty, therefore there is no equivalent in this country.

In my view, that is a bad argument. The fact, if it be a fact, that there has been an omission to tick a box in the arrest warrant of the various offences there set out is nothing to the point, provided that it is clear from the warrant as a whole and the description of the offence that it does indeed involve conduct which would be an offence here, and it says in terms that it was a credit swindle, that is the allegation, and it is based upon dishonesty. Whether or not in due course that will be proved is, of course, a wholly different matter. That is a matter for the Polish authorities.

Accordingly, even if I took the view that I would allow this material to be considered, it would get the appellant nowhere. But it is not possible to rely upon the shortcomings of the legal advisers as a let out to enable a breach of the order made by a judge of this court to be, as it were, ignored. As I say, in this case I have no doubt that the solicitors' conduct has been entirely inexcusable but, perhaps fortunately, it has not resulted in what otherwise would have been a case in which there was a good appeal failing. There never was, in my judgment, for the reasons I have given, a good appeal. This appeal is therefore dismissed.

MR HAWKES: My Lord, may I make an application for a legal aid order, although I do, of course, take on board your Lordship's comments.

MR JUSTICE COLLINS: There is not much I can do directly. We used to refuse such orders as the only sanction but I am not sure that that has any effect. I think it should be open to the legal aid authorities to take account of the malpractice by the solicitors. They are entitled to something, no doubt, but whether they should be entitled to everything, I do not know. I do not think whether I say legal aid assessment or not it will tend to affect the decision one way or the other. I can indicate judicial displeasure but that is in the judgment and I do not think it would be appropriate not to make that order, and so you can have that order.

MR HAWKES: I am grateful.

MR JUSTICE COLLINS: As I say, it is a matter for the relevant authorities to decide whether they should knock down the amount claimed. Clearly, I think they should very clearly consider whether your solicitors are entitled to claim for the work done to produce the material which was not produced when it should have been.

MR HAWKES: I think, if I have understood your Lordship, any costs application should reflect the work done for the purposes of the hearing below and limited to that.

MR JUSTICE COLLINS: Yes, but as I say, it will not be for me to make any decision on that matter, it is a matter for the legal aid authorities and I do not think there is much point in not giving you the order.

MR HAWKES: I am very grateful.