Marzurkiewicz v District Court In Rzeszow Poland

1. MR JUSTICE NICOL: This is an appeal against the decision to order the appellant's extradition to Poland in order to serve a sentence of 1 year, passed by the Polish authorities for offences of burglary. In the Magistrates' Court the appellant resisted his return to Poland under a European Arrest Warrant on the grounds of his rights under Article 8 of the European Convention on Human Rights. He has a wife and young children in this country and the District Judge properly followed the course of considering whether the inevitable interference with his right to family life would be proportionate in light of the policy reasons supporting the implementation of extradition arrangements. She decided that it would be proportionate and therefore ordered his extradition.

2. Since then, two matters have occurred. The first is that the Polish authorities, on 15 October 2012, agreed to ask the UK if the appellant could serve his sentence in this country instead of being returned to Poland. The second development is a matter that was alluded to by the District Judge. In the course of her judgment she said this: "One matter that may be relevant is that the defendant has been on an electronic tag since 20 March 2012 and [here I interpolate as a matter of Polish law] every day of this curfew will count as a day of his sentence." The District Judge's decision was given on 26 July 2012. As of that date, therefore, the appellant had served approximately 4 months of his 12-month sentence.

3. The appeal comes before me, today, 30 April 2013. The appellant has been on electronic curfew throughout the time that he has been waiting for this appeal to be heard. The consequence is that more than a year has passed that the appellant has been on electronic curfew. Accordingly, as a matter of Polish law, the appellant has completed his sentence.

4. This second development really overtakes the first. Mr Harbinson, on behalf of the issuing judicial authority, has accepted that in these circumstances it would now be an abuse of process for the extradition to continue. He concedes therefore that this appeal should be allowed. I agree with him. The right course in my judgment is therefore for the appellant to be discharged. In these circumstances it is unnecessary for me to consider further the original grounds of appeal as to whether the District Judge had wrongly applied the tests that are appropriate in considering whether an interference with a person's right to a family life are proportionate and compatible with the European Convention on Human Rights.

5. MR COOPER: My Lord, I am obliged. Could I ask for the usual order, which is no order for costs but for a detailed legal aid assessment.

6. MR JUSTICE NICOL: Yes, no order for costs, detailed assessment of the appellant's publicly funded costs.

7. MR COOPER: I am obliged.

8. MR JUSTICE NICOL: Thank you. Thank you, Mr Cooper, for your note, it was very helpful to know in advance that this was the course that the appeal was likely to take.

9. MR COOPER: I am obliged.

10. MR JUSTICE NICOL: Thank you, Mr Harbinson.

11. MR HARBINSON: Thank you, my Lord.