Magiera v District Court of Krakow, Poland, Court of Appeal - Administrative Court, November 03, 2017, [2017] EWHC 2757 (Admin)

Issuing Organization:Administrative Court
Actores:Magiera v District Court of Krakow, Poland
Resolution Date:November 03, 2017
 
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Case No: CO/5751/2016

Neutral Citation Number: [2017] EWHC 2757 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 03/11/2017

Before :

MR JUSTICE JULIAN KNOWLES

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Between :

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Robert Katz (instructed by BSB Solicitors) for the Appellant

Jonathan Swain (instructed by the Crown Prosecution Service) for the Respondent

Hearing dates: 18th October 2017

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JudgmentMr Justice Julian Knowles:

Introduction

  1. This is an appeal by the Appellant, Andrzej Magiera, against the decision of District Judge Baraitser at Westminster Magistrates' Court on 8 November 2016 to order his extradition to Poland pursuant to a European arrest warrant (`EAW') issued by the Judicial Authority on 29 August 2014. The Appellant is represented by Mr Katz and the Respondent by Mr Swain.

    The EAW

  2. The EAW is a conviction warrant relating to three offences. The offences are referred to in two judgments. The first judgment is dated 22 November 2006 and became enforceable on 30 November 2006. It relates to one offence described in Box E of the EAW. The Appellant is described as having, on 30 August 2005, together with others, submitted a false certificate of employment to obtain a loan to purchase a fridge and cooker, and that in doing so he caused a loss to the victim bank of PLN 3569.07. He received a prison sentence of 10 months, all of which remains to be served.

  3. The second judgment is dated 17 December 2009 and became enforceable on 25 December 2009. It relates to two identical offences each described in Box E. It is said that on 4 December 2007 the Appellant again submitted false documents to obtain a loan. The amount of the loan he sought was PLN 3150. On 18 March 2008 the Appellant did the same, except this time the amount of the loan was PL1800. For these offences he was given a sentence of one year and six months imprisonment, all of which remains to be served.

  4. Box D states that the Appellant was present at each of his trials resulting in the decisions to sentence him to terms of imprisonment. Mr Swain on behalf of the Respondent was not able to confirm how long the Appellant will spend in prison if he is extradited and so, in fairness to the Appellant, I will assume that he will serve both sentences in full and therefore that he may spend more than two years in prison in Poland if he is returned there, although I am aware that in Poland multiple sentences are often combined and replaced by a single reduced term.

    Proceeding before the district judge

  5. Before the district judge the Appellant relied on two bars to extradition: (a) that extradition would be a disproportionate interference with his right to private and family life and would therefore be a breach of Article 8 of the European Convention on Human Rights (``the ECHR''); (b) that to extradite the Appellant would be oppressive by reason of his ill-health, and thus extradition is barred by s 25 of the Extradition Act 2003 (``the EA 2003'').

  6. The basis for these submissions is the Appellant's poor state of health. He is currently 53 years old. In early December 2015 he was diagnosed with colorectal carcinoma. Later that month he had two operations, the first to remove the cancer and the second shortly afterwards when he developed post-operative complications arising from a leak of his bowel. This necessitated the creation of a stoma. A stoma is an opening in the abdomen from which a portion of the patient's intestine protrudes allowing for a bag to be attached for the collection of faeces. It is a procedure which is often carried out on those who have undergone surgery for colorectal cancer. The Appellant was in hospital for a month, during which he suffered a number of complications. Following his discharge, he has had numerous follow-up and outpatient appointments.

  7. He gave evidence before the district judge about the personal care that is necessary because of the stoma. He explained that twice a month he is sent stoma bags, disinfectant and dry wipes. He has to use scissors in order to cut the bags to size. He has to keep the stoma and the bags dry, and so when he takes a shower he has to wrap himself in cling film. He explained that on average he uses five to seven bags a day but can sometimes use up 13 depending on how active his gut is. He told the judge ``sometimes I don't manage to change the bag in time and it expels which is very messy''. He also told her, ``everything has to be sterile, I have to have everything ready, I have to quickly put a new bag on. I have a special shelf where I have everything - the shelf is washed every day.'' In addition, he told the judge that he has to eat particular foods and avoid ``liquidy stuff'' although he can eat meat, fish, potatoes and other vegetables.

  8. The district judge had before her a quantity of medical evidence. The first is a letter dated 14 June 2016 from Mr Budhoo, a consultant colorectal and general surgeon. He confirmed that the Appellant had surgery in December 2015 for a cancerous growth in his bowel. Using Dukes' Staging System, the cancer was at Stage B, meaning that the cancer had grown through the muscle layer of the bowel but happily had not yet spread to any lymph nodes. He said that no further treatment was required for the cancer. However, he went on to explain that the Appellant had had complications from the surgery, namely a leak from where the bowel had been reattached, which required to be taken down and a stoma fashioned. The Appellant subsequently developed a hernia. The surgeon said that the repair to the bowel and the hernia would be a very complicated operation, although it was possible to undertake it. The judge also had a letter from Mr Budhoo dated 24 June 2016 which requested that the Appellant have access to toilet facilities on a 24-hour basis. There was other evidence which I need not set out concerning follow-up appointments and colonoscopies which the Appellant has had since the time of his operation. (I should also note that as well as bowel cancer, the Appellant also has severe varicose veins, arthritis and a smoking - induced lung disease).

  9. The district judge dealt carefully with the submissions under Article 8 at para 37 et seq of her judgment. She cited the relevant case law (namely, Norris v. Government of the United States of America [2010] 2 AC 487, HH v. Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338 and Polish Judicial Authorities v. Celinski [2016] 1 WLR 551) and then at para 42 et seq she considered the factors for and against extradition. She noted that the Appellant has been in the United Kingdom since September 2010 and that he worked initially, although he is unable to work now because of his health. At para 43 she set out her conclusions on the medical evidence and it is clear she accepted without reservation the medical picture that had been put in front of her. At para 45 she said:

    ``However I have no information about whether his particular needs can be accommodated in prison in Poland. It is reasonable to assume there are medical facilities in prison which cater for a range of conditions, including a stoma. Equally if a prison is not able to manage condition (sic) it is reasonable to assume treatment can be provided by agencies outside the prison system, including a transfer to hospital if necessary. Further it is reasonable to assume where the health of the prisoner is such that detention in a prison hospital is unsuitable the relevant authority could bring the matter back to court to determine whether it is appropriate for Mr Magiera to serve the rest of the sentence in prison. I have no evidence that Mr Magiera's medical needs cannot be dealt with in the prison environment.''

  10. She said that the Appellant has no convictions in the United Kingdom and has led a law-abiding life here. However, at para 43 she labelled the offences as ``serious'' and, having adopted the Celinski checklist approach at paras 50 and 51, she concluded at para 52:

    ``On the evidence before me, there is nothing to suggest that the negative impact of...

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