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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Neuman v Circuit Court of Katowice Poland [2013] EWHC 605 (Admin) (15 February 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/605.html Cite as: [2013] EWHC 605 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 February 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against an order to return of the appellant to Poland in order to serve the balance of sentences totalling 2 years which had been imposed for serious offences committed in April and May 1999, for non-residential burglary and robbery, respectively. He was then 17 years old. He served all but 1 month and 22 days, being released, it seems, a little early from his sentence, he says, on the basis of good behaviour.
2. The matter came before the District Judge following the issue of the EAW last year and District Judge Coleman decided that he should be returned. He says - and his evidence was not rejected by the judge - that on his release from prison, having served the major period of his sentence, he was required to stay in contact with a probation officer and he asked in 2005 whether he could come to this country and was told that he could. He did so, and came here in November 2006 to look for work.
3. He had a partner who came to this country about 2 months later. They have been together for about 10 years and have been in this country together since November 2006. They now have a 2 year old daughter and both are employed.
4. He said - and again this was a matter which does not appear to have been disputed - that he was contacted by the authorities in Poland in 2007 informing him that he should return to serve the balance of the sentence, but he chose not to do so. Accordingly, the District Judge was certainly not wrong in deciding that he was a fugitive. But that is not the end of it. He cannot, in those circumstances, rely on section 14 of the Act because, as the authority of Kakis v Government of Cyprus [1978] 1 WLR 779 makes clear, that means that he was unable to establish that it would be unjust to return him. However, lapse of time is a material factor when one considers Article 8.
5. No reason has been put forward why it took some 5 years for the Polish authorities to issue the warrant in relation to this relatively short period that was left, imposed in respect of an offence which was committed when he was 17 years old, now nearly 14 years ago. It follows that he is a mature person now and he has behaved himself since.
6. There is no question but that if this warrant had been issued within a reasonable time - because I regard the lapse of 5 years as totally unreasonable - then it would have been virtually impossible for him to have succeeded in the appeal, having raised Article 8. But in my judgment the lapse of time makes all the different when one couples that with the short period that remains to be served. Miss Hinton submits that that short period in itself is effectively in favour of the authority's case because it means that he will not be away for very long. Nonetheless, it is obviously a serious matter that he is returned to Poland, serves a sentence of imprisonment, and there is the break-up of family life for, admittedly, a short period.
7. However, one knows that the European Commission is pressing for proportionality to be considered in requests for extradition. In the case of Poland, regrettably, it is said because of their constitution or because of their particular system, proportionality is not something that they can take into account and even if there was only one day left to be served, the warrant will be sought to be put into effect. So be it, that may be their approach but it is not the approach of this country. As I say, each case depends entirely on its own facts and I am satisfied in the circumstances case that this is a case in which it would be disproportionate to return the appellant. Accordingly, this appeal is allowed.
8. MS NICE: My Lord, forgive me for rising, there was just one factual point I seek to correct with your Lordship's permission. It is detailed in the District Judge's judgment. In fact, the appellant came here with the approval and authorisation of his first probation officer. It was then the second officer who asked him to return.
9. MR JUSTICE COLLINS: He was told to return by the second. He came here with original approval, but he did not return.
10. MS NICE: That's quite so.
11. MR JUSTICE COLLINS: I will correct that in the judgment. I am sorry I had not picked that up.
12. MS NICE: I'm grateful. That leads onto the second point which is that your Lordship referred to the probation officer requesting his return so he could serve the balance of his sentence. Certainly, my instructions are that he was simply told to return to complete the necessary requirements.
13. MR JUSTICE COLLINS: It was necessary that he served the balance of his sentence, yes, thank you very much Ms Nice. I am sorry that caused some difficulty for both of you but, frankly, rather than having this hanging around, it seemed to me that as I had formed a pretty clear provisional view it was more sensible to dispose of this case.
14. MS NICE: I am very grateful, my Lord. He is legally aided.
15. MR JUSTICE COLLINS: You may have the usual order.
16. MS NICE: Thank you very much.