Borkowski v Regional Court of Warszawa Praga

MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Grant who ordered the extradition of the appellant to Poland in order to serve two sentences of imprisonment. The first sentence is of 12 months for an offence of theft of a mobile phone, an iPad and other property, to a total value of some 3,500 zlotys. That offence was committed some considerable time ago now, in fact in July 2007. He was sentenced to a suspended sentence of 1 year's imprisonment in February 2008. The second offence was committed in August 2008 and involved obtaining a small quantity of property by impersonating a police officer. For that he was sentenced to 6 months' imprisonment, which again was suspended for 3 years, on 6 January 2009.

Although I think he did not attend the hearing in January 2009, he was aware of the judgment which he collected some week or so later. It seems from the information that in March 2009 he was told by his probation officer that he was not permitted to change his address without permission.

However, on 21 August 2009 the court decided to activate the sentence in relation to the first offence. Unfortunately, although information was sought from the Polish authorities generally, it is not known why that activation took place. Certainly it does not appear that it was a result of the second offence, because that had been committed a year earlier and had been dealt with in January 2009. The district judge was of the view that it must have been because of a failure to comply with the probation officer's requirements. That may or may not be so, but the point is made on his behalf that he was still in Poland when that activation was made. Indeed, it was confirmed in October 2009.

It was not until December 2009, it seems, that he came to this country and so did not maintain any contact with the probation authorities. He failed to notify them that he was coming to this country. He said it resulted from major problems because his parents had been evicted from their flat in Poland. He was in grave financial difficulties, and he decided to come to the United Kingdom in order to pursue work here. However, as I say, he did not notify the authorities. He says in his statement that he was not aware that he needed to do that. I find that frankly impossible to accept.

Having come to this country, he initially stayed with a friend and found a job here; indeed, he found a number of jobs. He met the lady with whom he had a daughter, and who was for a time his partner, in either, he says, 2010 or 2011. She already had a child and effectively he regards her child (who was born, it seems, in about 2008 or 2009) as effectively his too, and, of course, his daughter by his partner who was born in October 2012.

His parents came to this country themselves in 2012. Again, that was because they had lost their accommodation in Poland and they had health problems. The appellant's father was ill. He apparently also had a stroke (it is not entirely clear whether it was when he was here) but he was diabetic and also had heart trouble. It seems that, as a result of the appellant's persuasion, his parents came to this country, and they have real problems in finding anywhere to work. Indeed, they now apparently have accommodation in this country. They had Jobseeker's Allowance but that has been withdrawn, perhaps not surprisingly, and they say that the appellant effectively provides for them.

He also provides what is described as alimony for his partner and daughter, because sadly that relationship broke down and they are now apart. Nonetheless, the evidence is (and it is perhaps not altogether surprising) that both children, that is to say the ex-partner's own child and the child of whom the appellant is father, regard him as someone who they look to because he visits regularly, and they are attached to him and would miss him very much were he to be returned to Poland. Furthermore, there are financial difficulties that would arise for his ex-partner, albeit she works and apparently is self-employed and owns a hairdressing business and has a council flat in Middlesbrough. So it does not seem that, so far as the financial side is concerned, that the result of his not being available for a time would mean that they were left without any means of support.

It is of course always hard upon relations, particularly children, if a parent is extradited or indeed sent to prison in this country. The law makes clear that in order to show that a return would be disproportionate the material must be highly persuasive. Of course, if there is an interference with Article 8 rights, the onus is technically upon the CPS or the requesting authority to establish that return would be proportionate. But, as the Supreme Court made clear, the obligation to comply with our international obligations resulting from the European Arrest Warrant are such as mean that the hurdle to be surmounted in establishing it would be disproportionate is a high one.

Of course it is necessary to have regard to and to weigh strongly in the balance the effect on children. Equally, in this case, one has to bear in mind that, albeit the appellant may not be regarded as a fugitive from justice because he was unaware at the time he left Poland that a custodial sentence had been put into effect, nonetheless he was clearly aware that he was required to keep in touch. He chose not to do so; he chose not to tell the Polish authorities where he was going. The district judge described him as a "passive fugitive". I am bound to say that that is not an expression which I have come across before, but what he meant by it, I think, was that the fact that he had left knowing that he should not have done is something which meant that he could not technically be regarded as a fugitive from justice so that the provisions of the Act which deal with oppression were compromised, nonetheless it was a matter that could be weighed in the balance and could be properly used against him. Mr Hall accepts that that is not an inappropriate approach to the matter.

The district judge clearly had careful regard to the matters put forward in support of the Article 8 claim. He made the point too that apparently steps had been taken by the appellant to apply to the Polish court either further to suspend the sentences or maybe to reduce the totality that is left to be served. I know from other cases that the Polish courts do have the power, and indeed will on application always consider whether consecutive sentences should be, as it is put, consolidated, and so the total amount to be served it reduced. Equally, it is the normal practice in Poland that release from prison takes place, whether conditionally or in absolute terms (I suspect usually conditionally), after some half of the sentence has been served, which reflects rather the position that is in force in this country. Thus it is by no means certain; indeed, it is probable that he will not have to serve the total of 1 year and 5 months or so which is at present outstanding were he to be returned.

Mr Hall has submitted that these are not serious offences, and that if one is considering the matter in the light of what might have been imposed as a sentence here, sentences of this length would not have been imposed. That is a matter which, in my judgment, this court has to consider with the greatest care, because it is a matter for the courts in the country in question who have regard to what is perhaps a prevalent form of criminality in imposing a sentence which might appear to be higher than that which would be imposed in this country. The district judge made the point in his judgment that it might come as a surprise to other courts in this jurisdiction and in Poland that "this court (that is the court at Westminster) regularly imposes custodial sentences for street gambling and pickpocketing because of the prevalence of those offences in central London." It may well be that similar considerations apply to certain offences in Poland.

This was a nasty offence, the first one in particular, committed when the claimant and, he says, his sister were visiting hospital. He alleges in his statement that actually it was his sister who committed the theft and he took the blame in order to protect her. Whether or not that is or might be true is not for me to decide. The reality is that he accepted that he was guilty of that offence and it is to be noted that the arrest warrant states that he committed that offence in conjunction with another known person. It rather suggests on the face of it that what he says in his statement is simply not true. However, it is not necessary for me to reach a final decision on that.

Overall, it seems to me that the district judge was correct in his conclusion that the circumstances of this case did not, within the test to be applied by the Supreme Court, amount to disproportionality. In those circumstances, this appeal is dismissed.