Hoffman v Circuit Court of Zielona Gora

1. LORD JUSTICE THOMAS: As long ago as November 2004 and April 2006 the appellant, who is before the court today, was charged with offences of abusing police constables and assaulting one of them while in the execution of his duty, and driving whilst drunk and whilst disqualified. He was convicted of these offences in 2005 and 2006 respectively, and it is indicated that he received a sentence on each of just under 8 months' imprisonment. The sentence of imprisonment appears to have been imposed in his absence but he had apparently been duly notified.

2. He moved at some stage to live in the United Kingdom where he has a wife and two young children, one of whom is only 8 months old and the other 3.

3. A European Arrest Warrant was issued for his arrest on 25th June 2009 and just over a year later he was arrested on 29th July 2010. He was brought to the City of Westminster Magistrates' Court where he appeared before an experienced district judge and had advice from the duty solicitor. On his appearance, on 30th July 2010, no issue was taken in relation of the operation of the procedures under the Framework Directive as expressed in the Extradition Act.

4. He appealed to this court but although the appeal may have been lodged in time, it was not served. In accordance with the decisions of this court, this court has no jurisdiction to deal with this matter and the appeal therefore cannot be entertained.

5. However, it seems to us that this is a case which illustrates difficulties that are well-known across the European Union in relation to the operation of the principle of legality as understood by certain courts in the Republic of Poland.

6. The European Arrest Warrant, as a major judicial instrument of the European Union, operates on the basis that there is a common area for justice and that courts of one country must respect the decisions of the other. Within the terms of the Framework Directive as implemented in the law of the United Kingdom, it follows that we must respect the decision of the Polish court which has procured the issue of the arrest warrant.

7. However, it does seem to us from experience in this and other cases that what may well happen is the following. The Court in Poland may well have regard to the fact that the appellant resides in this country with a family and these offences are so long ago. A court applying discretion, which we understand many Polish judges take the view they ought to apply, may, if he is returned to Poland, look at the sentences again and may well commute the sentences that have been imposed upon him for some financial or other penalty, bearing in mind the significant disruption to his life which would otherwise occur if he had to serve the sentences in Poland.

8. We would therefore ask that the remarks that we make be addressed to the President of the court at Zielona Gora. We would request that before the considerable expense is incurred of returning him to Poland, and his family life is disrupted, that the court, in accordance with its procedures, consider whether this a case where having heard the representations from his lawyer, whom we understand has been instructed in Poland, would consider whether the court would, if he appeared before it, impose some other penalty rather than a custodial term. If that is a course the Court is likely to follow, then it would seem to us no point in him being returned to Poland. However, it is not for this court in any way to suggest how a court in Poland should deal with the matter. It is merely a request that if, within the very short period of time before he has to be extradited, the decision of the Polish court would be that he would not be sent into custody, then to incur the necessary costs of imprisoning him, and returning him in custody to Poland is as a matter of common humanity is something which should not be done. We would also ask that a copy of this judgment be sent in accordance with the arrangements made with this court and the Judicial Council for Poland and the Polish Ministry of Justice be transmitted to both of them.