Bratkowski v Regional Court Bialystok

1. MR JUSTICE CRANSTON: This is an appeal against a decision of District Judge Goldspring, dated 27 March 2015. The case was stayed as a result of the appeal which went to the Supreme Court in Goluchowski and Sas [2016] UKSC

36.

2. The appeal was lodged at a time before the permission stage was introduced into extradition appeals. It is also appropriate to note that it pre-dated the decision of the Divisional Court in Polish Judicial Authorities v Celinski and others [2015] EWHC 1274 (Admin).

3. The appeal is against the decision of the District Judge to extradite the appellant pursuant to a conviction warrant issued by the Regional Court in Bialystok, Poland on 26 February 2013. It is in respect of one offence of robbery. That robbery was committed on 7 January 2006.

4. A sentence of 2 years and 6 months' imprisonment was imposed. The warrant records that the offence was committed within 5 years of an earlier conviction for a similar offence for which the appellant served at least 6 months.

5. On the appellant's account, he was released temporarily from prison to receive medical treatment but he failed to return when he was required to do so and came instead to this country.

6. In his brief evidence, he explains that he knew that he was due to return to prison. In his proof of evidence he explains that when he came here he lived openly and found work. He obtained a job initially working outside London in manufacturing but since 2011 has been self employed as a painter and decorator.

7. At the time the matter was considered by the District Judge the appellant had separated from his partner and the mother of his son but he was having weekend contact with the child. He has a daughter who lives in Poland with her mother. There was, at the time of the hearing before the District Judge, a new partner who had children of her own. Subsequently that relationship has broken down.

8. In his judgment the District Judge considered two issues; one which has now gone away as a result of the subsequent decision of the Supreme Court, the other, Article

8.

9. In the course of his decision the District Judge cited the leading Supreme Court authorities, Norris v United States of America & Ors [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and said that he had to weigh up the factors in favour of extradition against those in favour of the appellant's discharge.

10. The District Judge referred to the age of the appellant at the time of the offending as against the public interest in this country upholding its extradition obligations. He also referred to the delay: delay, if it was not the requested person's fault, why it had taken place and whether or not the requested person during the period had made a new life – all of that would be weighed in the balance.

11. The District Judge continued that, in the balancing exercise, this offending was serious and that there was a significant outstanding term to serve (albeit that half the sentence had been served). He said that he could take account of the shortness of the period remaining to be served when considering proportionality. However, any delay in the case was because the appellant was a fugitive, he having not returned to prison when he was due to do so.

12. The District Judge said that the appellant’s Article 8 rights were engaged as well as those of his partner and children. There would inevitably be hardship but that did not outweigh the public interest in honouring the request of Poland.

13. On behalf of the appellant, Mr Williams has focused his attack on the District Judge's decision, on the omission of some features from the balancing exercise, and on the weight which the District Judge has attached to those which he did take into account.

14. As regards delay, the District Judge was, in his submission, incorrect in stating that the delay would only count if it was not the appellant's fault. Mr Williams underlined the almost 10 years which has elapsed since the offending occurred. At that stage, the person was much younger, 23 years old. Although he accepts that he was a fugitive, and therefore is partly responsible for the delay, when he came here he lived openly and has now worked in this country without blame.

15. In those 10 years he has matured and one result of extradition will be that he will lose the business which he has established as a painter and decorator. Mr Williams's submission was that although it was proper that the full period of delay could not be taken into account, certainly a considerable part of the delay could be, especially since some of that was attributable to the period which had lapsed since this case came on, caused by the Supreme Court appeal to which I referred earlier.

16. Mr Williams also highlighted what he said was the character of the offending, while it was not trivial, it was not especially serious. Moreover, the appellant had served a significant period of time in prison for it. It would be especially hard for him to have to return to custody after all these years to serve the remaining part of the sentence.

17. Notwithstanding the care and cogency with which these arguments have been put, I am unpersuaded. The appellant was a fugitive. There has been delay but, in my view, a large amount of this is attributable to the appellant himself.

18. That does not mean(and nor do I take the District Judge to be saying) that none of that delay is to be taken into account in the Article 8 balancing exercise. However, it does mean that the 10 year period does not weigh in the balance as heavily as it might otherwise do.

19. The other factor is that the offending is serious. Albeit that it involved the theft of a mobile telephone, it did involve violence by hitting the woman from whom it was taken. Coupled with that was the fact that the appellant had committed a similar offence on a previous occasion. Mr Williams quite rightly focused on the appellant’s private life since the relationship with the new partner has unfortunately collapsed.

20. There will obviously be an effect, in particular on the appellant's business in this country. The fact is I cannot see that in the balancing exercise any other result but that reached by the District Judge is possible.

21. Consequently, I dismiss the appeal.