Bachanek v Regional Court In Warsaw, Poland

MR JUSTICE BEAN: This is an appeal against an order of District Judge Snow that Mr Bachanek be extradited to Poland on a conviction warrant.

Mr Bachanek was originally sentenced to a suspended term of 18 months' imprisonment for four offences of non-dwelling house burglary (the target appears to have been one or more pigeon lofts), committed in 1998 or 1999, when he was 17 years old. Following some form of breach of the suspended sentence -- the exact nature of which is not clear -- the court in Poland activated the suspended sentence.

The appellant gave evidence before the District Judge, who found that he was a knowing fugitive; that is to say, he had left Poland for this country knowing that he was liable to imprisonment by virtue of the orders of the Polish court. The District Judge found that he knew he was in breach of the suspended sentence and came here to avoid the consequences of that breach, leaving Poland and not informing the authorities of his whereabouts, thus evading arrest.

Since coming to this country the appellant has led, by all accounts, a model law-abiding life. He has been employed by Spaghetti House Ltd, has obtained a managerial position and is highly regarded.

Mr Hawkes, on his behalf, accepts, and rightly so, that he cannot pray in aid the statutory bar of the passage of time under section 14 of the Act because, on authorities such as Kakis v Government of Cyprus or Gomes & Goodyear v Government of Trinidad and Tobago, that is simply not open to a knowing fugitive. But it is open to Mr Hawkes, and he does, to advance arguments based on the passage of time, under Article 8.

Mr Bachanek does not have children, is not married and has not told the court about any partner resident here, but, understandably, he relies on a combination of the triviality of the original offences, the fact that the penalty of imprisonment appears to have been imposed for what may have been no more than a breach of the terms of his probation, and the law-abiding life that he has led here. He also submits that to bring somebody to book when he is aged over 30 for the consequences of minor offences committed when he was 17 is of its nature oppressive.

The case, in my view, has some parallels with the story of Victor Hugo's great novel, Les Miserables, where the hero is pursued in his respectable middle age for having stolen a loaf of bread many years ago.

If this were a matter of discretion, I would have no difficulty in exercising it in Mr Bachanek's favour. There is nothing attractive about the authorities of a requesting state such as Poland -- and Poland is the most frequently requesting state in cases of this kind -- pursuing somebody 14 years after the event for such a minor matter. What the costs must be to the Polish taxpayer, let alone the British taxpayer, I shudder to think. However, it seems to me that Mr Hawkes' arguments cannot succeed in the light of the decision of the Divisional Court, which is binding on me, in JP v The District Court at Usti Nad Labem, Czech Republic [2012] EWHC 2603 Admin. There, as in this case, the offences were fairly trivial and several years had elapsed since they were committed; but the President, with whom Globe J agreed, said that it is not for the English court to impose its view of seriousness or its view of sentencing policy on the authorities of the requesting state, and also that lapse of time can count for very little, even under Article 8, in a case where an appellant is a knowing fugitive. In the case of JP, even though the appellant was the mother of five young children and even though the offences were trivial, she was nevertheless extradited. The present appellant is in a weaker position in that he has no children, so no-one else's Article 8 rights are affected.

I do not think it can make any difference that the appellant was only 17 when the original offences were committed. It will have to be a matter for another case to consider whether, if, for example, an appellant had been 12 or 13 years old when original offences had been committed and were then pursued as an adult the case might be distinguishable on that ground from JP and the general run of authority. But I do not think that the fact that the appellant was in English terms -- and possibly in Polish terms -- just under the age of majority when he committed the offences is enough to make a difference. Nor does it make a difference, in my view, that the custodial sentence which he is being requested for is being imposed for some kind of breach of the terms of his suspended sentence rather than for the original offence itself. As I read the judgment in JP, if, for example, a sentence of 18 months' immediate imprisonment had been imposed on the appellant for these burglaries of pigeon lofts and the like when he was 17 years old, that would have been a sentence far in excess of any which an English criminal court would have been likely to impose, but nevertheless the principle that the English court must not impose its view of seriousness on the requesting state would apply, and I do not consider that a sentence brought into effect on breach of the terms of its suspension is distinguishable. Again, it may be that no English court would have brought the sentence into effect - that may depend on the exact facts of the terms of the breach - but in any event, even that were the case, it would not be for me to tell the Polish court that it was wrong.

So, with some regret, and with gratitude for to Mr Hawkes' submissions, I must nevertheless dismiss the appeal.