The High Court dismissed an application by Albert Jarzebak for release from custody under Article 40.4.2 of the Constitution, finding no basis to investigate further whether his detention pending surrender to Poland was unlawful.
Mr Jarzebak had been arrested on European Arrest Warrants in March and July 2010. On 30 November, the High Court ordered his surrender to Poland for prosecution and his committal to prison pending surrender. That order took effect on 14 December.
The day after the court refused leave to appeal the surrender orders, Mr Jarzebak brought the Article 40 application. He argued that his earlier legal team had not adequately explained the case to him in Polish and had not consulted him about dropping an objection concerning prison conditions in Poland. He said that, had he understood the issue’s significance, he would have instructed his lawyers to pursue it.
His new solicitor’s affidavit said Mr Jarzebak had limited English and had received interpretation at only one consultation, apart from help from a friend. A later affidavit from Mr Jarzebak described several consultations attended by that friend, whom he said could not reliably explain the legal matters. He also said he had not understood the prison-conditions objection or agreed to its withdrawal.
The court noted that no supporting affidavit had been filed for the prison-conditions objection before the surrender hearing. It said there could be no factual basis to argue the point meaningfully and that it was appropriate not to advance it. The warrants sought surrender for prosecution, not to serve an existing sentence.
In rejecting the complaint, the judge said the evidence showed that interpretation and experienced legal representation had been available, and that the prison issue had been discussed with Mr Jarzebak. The judge also noted that Mr Jarzebak had not raised concerns about understanding during the proceedings or about prison conditions with his advisers. The court found the surrender hearing fair and the resulting orders lawful.
The judge concluded that the alleged translation difficulties did not make the detention unlawful. The court dismissed the Article 40 application in limine as an abuse of process. It did not reopen the surrender proceedings or order a further inquiry.