Wojcik v District Court In Koszalin, Poland

MR JUSTICE KEITH: On 11 June 2012, the appellant, Grzegorz Wojcik, was arrested pursuant to a European arrest warrant issued by the District Court of Koszalin, Poland. The warrant had been certified by the Serious and Organised Crime Agency on 8 November 2011. Extradition hearings took place at the City of Westminster Magistrates' Court, and on 17 August 2012 District Judge Rose ordered that Mr Wojcik be extradited to Poland. He now appeals against that order, Collins J having ordered that the appeal could be heard by a single judge.

Poland has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003. Accordingly, Mr Wojcik's extradition is governed by Part 1 of the Act. The warrant is what is colloquially called a conviction warrant. That required Mr Wojcik's extradition so that he could serve the balance of the sentences imposed for two offences. The first was an offence of driving whilst intoxicated and disqualified in 2006, for which he had been sentenced to 15 months' imprisonment. The second was for an offence of burglary in 2007, for which he had been sentenced to 12 months' imprisonment. He had served only part of those sentences. 14 months and 15 days remained unserved for the first offence. 8 months and 6 days remained unserved for the second.

The only issue which Mr Wojcik sought to raise in the Magistrates' Court was that his physical condition was such that it would be unjust or oppressive to extradite him. It was conceded on his behalf that the evidence was not such as to justify his discharge, and accordingly the district judge was asked to adjourn the hearing under section 25(3)(b) of the Act until it appeared to him that Mr Wojcik's physical condition was not such that it would be unjust or oppressive to extradite him. The district judge refused to do so, and ordered Mr Wojcik's extradition. The notice of appeal does not challenge that decision.

Mr Wojcik was advised that there were no grounds in law for an appeal and his notice of appeal was drafted by himself. His grounds of appeal read:

None of these points amount to a proper ground of appeal. Today, Mr Wojcik has told me that his physical condition was aggravated by an accident which happened since the hearing in the Magistrates' Court, but he has told me nothing which suggests that his physical condition is such that it would be unjust or oppressive to extradite him. He claims that the burglary related to the theft of some vegetables. He says that he has apologised to the woman from whom he stole them and he has paid her compensation. He says that if he is extradited he will have to abandon his dog, and if there is no-one to look after his dog, his dog is likely to die. None of those grounds amount to proper grounds of appeal.

In addition, Mr Wojcik told me that he has grown roots in the 5 years that he has been in this country, and his extradition would result in him not seeing his 3-year-old son. He claims that he has been seeing his son every day over the last 3 months, even though he no longer lives with the child's mother. As is well known, the recent decision of the Supreme Court in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90 requires the court, in cases where young children are involved, to balance the conflicting interests of safeguarding the children's rights on the one hand and of complying with the obligation to extradite people facing criminal charges, honouring extraditions treaties and ensuring that this country does not become a safe haven for those who wish to avoid the criminal process in their own country on the other. In that balancing exercise, the interests of the children must be a primary consideration and at the forefront of one's mind.

It may well be the case that Mr Wojcik's extradition to Poland would result in his son being deprived of contact with him, and in him being deprived of contact with his son. It could also be the case that his son may be disadvantaged by Mr Wojcik no longer being around to help look after him. But Mr Wojcik has not said that he is the sole, or even the primary, carer of his son, nor has he suggested that the boy's mother might not be able to provide adequate care for the boy herself. Balancing these considerations, I have concluded that Mr Wojcik's extradition would not be a disproportionate interference with the interests of his son. It follows that this appeal must be dismissed.

I should say that there is another problem which Mr Wojcik faces. Section 26(4) of the Act requires his notice of appeal to be "given in accordance with rules of court" before the end of the period of 7 days starting with the day on which the extradition order was made. The relevant rule of court is paragraph 22.6A(3)(a) of the Practice Direction supplementing Part 52 of the Civil Procedure Rules. That required the notice of appeal to be "filed and served" before the end of that period. The notice of appeal was filed on 23 August, and therefore within the period, but it was not received by the Crown Prosecution Service in its capacity as the agent of the requesting authority until 29 August. On the assumption that it was posted to the Crown Prosecution Service, there is no evidence from Mr Wojcik as to when it was posted, and there is therefore no basis for deeming the notice of appeal as having been served prior to the date of its receipt.

Since the notice of appeal was not served on the requesting authority in time, the appeal can only be pursued if there is a power to extend Mr Wojcik's time for serving it and the court grants an extension of time sufficient to validate it. In Mucelli v Government of Albania [2009] 1 WLR 276, the House of Lords held that there was no power to extend the time for serving the notice of appeal. That was held by the Supreme Court in Pomiechowski v District Court of Legnica, Poland [2012] 1 WLR 1604 not to apply to British citizens but whether that exception also applies to those who are not British citizens but who come from countries within the European Union was left open. That issue was revisited in Lumenica v Government of Albania [2012] EWHC 2589 (Admin), in which the Divisional Court held that the exception only applied to British citizens.

For my part, I prefer not to enter this debate when the appellant is unrepresented. Having said that, I note that Mr Wojcik was specifically advised in writing by his solicitors of the time limits and of the need to "serve the CPS a sealed copy of the appeal notice". It was not as if it was difficult for him to comply with that time limit. After all, he remained on bail following the hearing. And his appeal is without merit. For those reasons, this would not have been an appropriate case in which to extend his time for serving his notice of appeal, assuming that his time for doing so could be extended.