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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 >> Kondrak v District Court In Kielce Poland [2014] EWHC 3743 (Admin) (22 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3743.html Cite as: [2014] EWHC 3743 (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
		22 October 2014

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Coleman, whereby she ordered the appellant's extradition to Poland to serve sentences totalling 4 years and 5 months for a considerable number of offences, some serious, some perhaps less serious.
2. As is always the case in these Polish EAWs, the assumption is made that the sentences are due to be served consecutively. However, there is a power in the Polish courts on application to what is called 'consolidate sentences'.
3. An application can, I know, be made and I have no doubt would be made on this appellant's behalf were he to be extradited, which could result in the totality of the sentences being reduced; and again, knowledge of the system in Poland, and particularly that the prisons are still under pressure and tend to be somewhat overcrowded, there is a real prospect that the 4 years and 5 months is likely to be reduced. However, I recognise one cannot make that assumption.
4. The basis upon which the appeal is brought is because it is the case that he has a concurrent judicial review claim running in relation to what he asserts to have been unlawful detention at the instance of the Home Office. He was, it is said, unlawfully detained because no steps were taken to investigate his claim that he was an EU citizen who was seeking work in this country at the relevant time. In fact, he was picked up because he was sleeping on a park bench and at that stage had nowhere to go.
5. He was, he says, detained without access to any legal advice, or ability to contact the Polish consulate, or being given any necessary information. He has leave to move for judicial review. The grant of leave was coupled with some strong observations by Helen Mountfield QC, who granted leave, as to the apparent unlawfulness of the actions of the Home Office.
6. Of course, it is not for me in any way to indicate any views on whether that will, in the end succeed. Suffice it to say that on the face of it, he appears to have a relatively strongly arguable claim.
7. In addition, understandably, he wishes damages if his detention was unlawful. The appeal before me is based upon a contention that the District Judge ought to have adjourned the matter, or certainly ought not to have ordered his extradition until the claim here had been dealt with, because his presence was needed in order to pursue his claim here and it would be a breach of Article 6 of the European Convention on Human Rights to deprive him of a proper opportunity to present his claim for damages.
8. Miss O'Raghallaigh accepts that so far as the lawfulness of the detention is concerned, his presence is unnecessary. That will depend upon argument based upon material produced by the Home Office. There is a problem there, because application has been made for the necessary disclosure of the Home Office file relating to actions taken. The Home Office has, and I am afraid it is all too often the situation before this court, not responded as it ought to have done, and has not yet produced the material.
9. The remedy is for an application to be made in the judicial review proceedings to obtain an order from the court that the relevant documents be produced. However, that, it is said, can go to whether it is an appropriate case for aggregated or exemplary damages. Again, I make no observation on that, save to say that that will depend not upon any evidence given by the claimant but upon what is produced to the court to show how the matter was approached by those in the Home Office who made the relevant decisions.
10. There is a claim for special damages and there is an issue, apparently, as to whether he was indeed exercising his treaty rights at the relevant time. It would perhaps be slightly surprising if he was not doing so because is he hardly likely to have wanted to be street homeless. However, the fact is that apparently there is an issue about that.
11. The point is made that it has not been possible to establish with the Polish authorities whether they would allow any communication whether by video link, or by telephone with those advising him or those conducting his case in this country.
12. Accordingly, it is said that it is necessary that extradition should not take place until the proceedings here are heard. That will certainly not be until well into next year because the first stage will be the judicial review. If it is decided that the imprisonment was unlawful then the question of damages will be put over to be decided either in the Queen's Bench, or possibly in the County Court, but that will depend upon the circumstances. Accordingly, there will be further delay.
13. Obviously it is important that the claimant is able to pursue his claim in this country without any real disability which means it is submitted that it would not be fair for him to be extradited.
14. I am far from persuaded that that is indeed the situation in this case. Certainly, he has put in (and can put in further) evidence as to what he had done by way of work here, and what he would have hoped to have continued to do. He apparently says that he was working in a restaurant. It is not at all difficult surely for him to identify to those who are representing him what restaurant that was, and confirmation can easily be sought so far that is concerned.
15. I have no doubt that the Polish authorities should be requested, and certainly it should be noted and conveyed to them that I would expect and hope that as a matter of comity they would take reasonable steps to ensure that there was an ability to communicate with his representatives in his country in order to be able properly without breach of article 6 to pursue his claim here.
16. Indeed, it is to be noted that of course Poland is a signatory to the convention and if there were a real risk of breach of Article 6 in actions or inactions taken in Poland, then he would have a remedy there. One would hope, indeed, one would expect that as a signatory, the Polish authorities would take reasonable steps to ensure that there was not such a breach. Quite what those steps would be would depend upon communication and setting up what might be necessary. That will only be known when the judicial review decision is reached, because obviously if it is decided that the detention is lawful there will be no claim for damages. It will be only if unlawful that such a claim will arise.
17. In those circumstances, as I say, I am satisfied that this is not a case in which extradition should be deferred. Accordingly, I dismiss this appeal.
18. Again, Miss O'Raghallaigh, I hope that those observations of mine will assist in any dealings with the Polish authorities.
19. MS O'RAGHALLAIGH: As do I, thank you, my Lord.