Kowalski v Regional Court In Bielsko-Biala, Poland, Court of Appeal - Administrative Court, May 11, 2017, [2017] EWHC 1044 (Admin)

Issuing Organization:Administrative Court
Actores:Kowalski v Regional Court In Bielsko-Biala, Poland
Resolution Date:May 11, 2017
 
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Case No: CO/2338/2016

Neutral Citation Number: [2017] EWHC 1044 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11/05/2017

Before :

MR JUSTICE HOLROYDE

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Between :

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Ms Florence Iveson (instructed by Wainwright Cummins Solicitors) for the Appellant

Mr Alexander dos Santos (instructed by Crown Prosecution Service) for the Respondent

Hearing dates: 11th April 2017

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JudgmentMr Justice Holroyde :

  1. On 29th April 2016 District Judge (Magistrates' Courts) Tempia (``the DJ'') ordered the extradition of the Appellant (``Mr Kowalski'') to Poland. Mr Kowalski now appeals against that order, pursuant to limited leave to appeal granted by King J. I am grateful to counsel on each side for their helpful written and oral submissions.

  2. Mr Kowalski was born on 27th February 1961 and so is now aged 56. He came to the UK in March 2013. His mother Mrs Helena Kowalska (``Mrs Kowalska''), now aged 78, had arrived in the UK some years earlier. Mr Kowalski says that he lives with his mother, for whom he cares, in Acton, west London. He has a Polish partner, Ms Felner, who lives some distance away in east London, and spends some of his time with her.

    The Polish proceedings and the European Arrest Warrant:

  3. Mr Kowalski's extradition was sought by the Respondent, the Regional Court in Bielsko-Biala, Poland, to serve the remaining term of a prison sentence imposed upon him in 2013, and also to stand trial on criminal charges dating back to 2009. A mixed conviction and accusation warrant was issued by the Polish court on 1st September 2015, and certified in this country by the National Crime Agency on 24th September 2015. Mr Kowalski was arrested on 16th November 2015, outside Ms Felner's home.

  4. The conviction part of the warrant relates to 20 offences of dishonesty committed between March 1997 and March 2000, which involved fraud and/or the use of false documents to obtain loans and lease agreements in relation to machinery and equipment used in a business. These were serious offences in which Mr Kowalski played a leading role: he established and managed an organised criminal group to commit the offences, and the offences involved obtaining, or attempting to obtain, loans and leases with an aggregate value equivalent to around £1 million. The accusation part of the warrant relates to two further allegations of fraud, involving the use of forged documents in 2009 to obtain loans totalling the equivalent of about £19,000.

  5. Criminal proceedings in Poland took some time. Mr Kowalski was present at the time when he was convicted of the 20 offences. Sentencing appears to have been a protracted process, because there seems to have been a procedural error which made it necessary for a further hearing before a different court. Eventually, however, the various sentences were combined, and reduced to take account of totality, by an order made on 1st October 2013 and made final on 23rd January 2014. The overall sentence was a term of 6 years 3 months' imprisonment. Taking into account the substantial period of time which Mr Kowalski had spent in custody during the course of the proceedings, there remains to be served a term of 2 years, 1 month and 13 days' imprisonment.

  6. Mr Kowalski, as I have said, left Poland and came to the UK in March 2013. There is however no doubt that he was aware of the sentence imposed upon him. In February 2014 his Polish lawyer unsuccessfully applied to defer execution of the sentence. In late October 2014 Mr Kowalski was summoned to prison to serve the remaining term. Mr Kowalski did not comply with the summons, and the European arrest warrant was subsequently issued.

    The proceedings before the District Judge:

  7. Mr Kowalski made his first appearance before Westminster Magistrates' Court on 17th November 2015. The substantive hearing before DJ Tempia took place on 4th March 2016. Mr Kowalski was represented, and both he and his mother gave evidence. The issues raised on his behalf related to sections 21, 21A and 25 of the Extradition Act 2003, and Article 8. DJ Tempia agreed to hear the evidence but then to adjourn so that medical evidence could be served in support of Mr Kowalski's case. She gave her decision in writing on 19th April 2016, having heard submissions about the medical evidence.

  8. The evidence before DJ Tempia comprised:

    i) Mr Kowalski's proof of evidence and oral evidence adopting and expanding upon that proof.

    ii) Mrs Kowalska's proof of evidence and oral evidence adopting and expanding upon that proof.

    iii) Ms Felner's proof of evidence.

    iv) A report dated 28th March 2016 by Dr Farhy, a consultant counselling and psychotherapeutic psychologist relating to Mrs Kowalska. Dr Farhy noted that there was no record of Mrs Kowalska having suffered any mental health problems before the extradition process began in relation to her son; she did however have a history of suffering severe personal losses during her life. He administered tests which showed her to be at the lower end of the severe range in respect of anxiety, and at the bottom end of the moderate range in respect of depression. He found her to be physically independent and mobile, but handicapped by her very limited English and her lack of support and social activity. His opinion was that if the extradition proceeded, she was bound to become more depressed and there was a ``significant chance'' of her developing a major depressive episode.

    v) Letters dated 17th March 2016 from Dr Dhatt, a General Practitioner, relating to both Mr Kowalski and Mrs Kowalska. Dr Dhatt described Mr Kowalski's physical problems, and said that his liver condition needed close monitoring by a specialist unit. Dr Dhatt also described Mrs Kowalska's physical problems and noted that she reported herself as being anxious and frightened. He recorded that she had told him she began to suffer anxiety when she came to the UK (which was in about 2008), and he felt she would deteriorate if she were left alone by her son's extradition.

    vi) A report dated 15th March 2016 by Dr Belinda Smith, a consultant hepatologist, relating to Mr Kowalski. She reported that treatment for Mr Kowalski's viral hepatitis C had been successfully completed, and the condition was now cleared. She did however require long-term follow up and that Mr Kowalski should be monitored (with blood tests and ultrasound scans) every 6 months, ``ideally by a liver specialist or gastroenterologist''. The reason why such monitoring was necessary was because of a very small risk - less than 2% per year - that Mr Kowalski would develop liver cancer in the future.

  9. DJ Tempia summarised the medical conditions relied on in relation to Mr Kowalski as follows: he suffered from viral hepatitis C (contracted in Poland), diabetes, cirrhosis of the liver, very high blood pressure and problems with his vision. He was however able to work 6 days a week, his place of work being so close to his home that he was able to return at lunchtimes to check on his mother. He described himself as living with his mother ``for the most part''. He said his mother started to feel really unwell from 2013, and stated that in 2014 his Polish lawyer had ``tried to get the sentence suspended due to the fact that my mum was so ill''.

  10. As to Mrs Kowalska's medical conditions, the evidence in summary showed that she suffered from anxiety, heart problems, a tumour on her brain, dizziness and impaired vision. She speaks little English, and is socially isolated apart from the company and support of her son, whose care she said was essential. She told DJ Tempia that Ms Felner provided some assistance at weekends, but had commitments during the week which prevented her from providing regular care for Mrs Kowalska. Although Mrs Kowalska has a grandson who also lives in the UK, his home is in Bournemouth and he has his own family to care for. Mrs Kowalska's evidence was thus to the effect that in the event of the extradition of her son, she would be ``totally helpless and alone''. She was not however currently receiving any counselling or therapy for her anxiety.

    The decision of the District Judge:

  11. In her...

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