Biadon v The Circuit Court In Olsztyn Poland

MR JUSTICE MITTING: A conviction European Arrest Warrant was issued by the Circuit Court in Olsztyn, Poland on 21 June 2012. It was certified by the Serious and Organised Crime Agency on 16 August 2012. The appellant was arrested on 30 August. His extradition was ordered by District Judge Arbuthnot on 5 October 2012. His extradition was sought to serve the balance of a sentence of 3 years and 6 months, namely 2 years, 5 months and 27 days, imposed after convictions for importing ecstasy on 15 March 2003 and for burglary of a shop on 13 March 2003. The judgment of the Polish court became final on 5 March 2004. The quantity of ecstasy tables imported was substantial: 12,921. The appellant was represented at the extradition hearing by experienced extradition solicitors. His grounds of appeal were settled by a second firm, also experienced extradition solicitors. No issue was raised at the extradition hearing by his then solicitors.

The grounds of appeal settled by his then new solicitors raise only 1 ground: that under section 26 of the 2003 Act the District Judge should have discharged him under section 25 on the ground that his physical or mental condition was such that it would be unjust or oppressive to extradite him. No evidence was put in before the District Judge to support that ground, a ground which was not raised beforehand. No evidence was put in until this morning, when I have been handed a folder of material. Most of it consists of references and other evidence which demonstrates that the appellant has led, since his arrival in the United Kingdom in 2004, a useful and law-abiding life, that he has established roots in Stoke-on-Trent and has a long-term partner, and, it would seem, has put his criminal past firmly behind him. All of that is, of course, commendable and it is regrettable that he has an unexpired term of imprisonment to serve for the serious offences of which he was convicted in 2003. The only evidence capable of supporting the single ground of appeal which he raises is a medical certificate from an orthopedic specialist in Olsztyn in Poland which states that x-rays which the orthopedic specialist has examined show a false joint in the right scaphoid bone which requires surgical intervention. The appellant asserts that he would have difficulty in obtaining the performance of that procedure in Poland lacking as he does in a record of insurance contributions or fixed place of residence in Poland but there is no evidence to that effect beyond his assertion.

His single ground of appeal faces two difficulties. First, the material upon which he wishes to rely could and should have been deployed before the District Judge. He was represented by experienced extradition solicitors, who can safely be taken to have understood and advanced any arguable bar to extradition. None was. There is no explanation for the failure to advance this ground of appeal. Accordingly, applying Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), I should not permit it to be advanced. Even if I were to do so, it gets nowhere near establishing that it would infringe the appellant's right to respect for his private and family life under Article 8 of the European Convention on Human Rights for his extradition to be ordered.

He has also put in a letter dated 10 January 2013 from the District Court in Olsztyn summoning him to an executive meeting on 25 February 2013 to consider an application to defer execution of the remaining sentence of imprisonment. This is, I regret to say, a familiar tactic in Polish cases but it is a matter for the Polish courts to determine and is not capable of amounting to a bar to extradition or, save in highly unusual circumstances, of giving rise to other bars to extradition, such as oppression.

On proper analysis, there is nothing in the challenge to the District Judge's decision which I can properly take into account or which could persuade me to allow this appeal. The appellant is to be commended for the life that he has led since 2004 but that does not prevent his extradition to Poland to serve the unexpired term of his sentence. His appeal is therefore dismissed.