The High Court has ordered the surrender of a man to Poland under a European Arrest Warrant, rejecting his objections over a six-month substitute prison sentence imposed in his absence and the impact surrender would have on his family life.
In a judgment delivered on 3 July 2023, Mr Justice Kerida Naidoo ruled that surrender was not precluded under the European Arrest Warrant Act 2003 and made an order under section 16. The warrant seeks to enforce a 180-day sentence imposed in May 2011, with five months and 29 days remaining.
The sentence replaced a 12-month restriction-of-liberty order, which included community service and a requirement to reside at a specified address. The Polish court found that the man had not carried out the community service and had left the required residence. He was absent when the substitute sentence was imposed.
He argued that he had not received notice of the May 2011 hearing. The issuing authority said notice had been sent to the address he had provided and that delivery notices were left twice. The man and his sister said relevant documents had not reached him. The judge accepted that notice was served at the nominated address, but said he could not be satisfied that the man personally received it.
The judge first held that the 2011 decision was not a “trial” for the purposes of the section 45 objection, because the Polish court could decide whether to impose the substitute prison sentence but could not choose a different penalty or duration. The six-month term was calculated by a mathematical formula. The judge said this resolved the section 45 issue.
He also considered the objection on the alternative basis that it was a trial decision. He found the man had made an informed decision not to take part in further proceedings and had brought about the situation in which personal service could not be effected, by leaving the address without notifying the authorities responsible for the criminal-damage case. The judge noted that the man could seek a rehearing in Poland as of right, with the merits reconsidered and legal representation available.
The court also rejected arguments that surrender would breach fair-trial or liberty rights, interfere disproportionately with family life, or be unjust because of delay. It found the circumstances were not sufficiently exceptional or egregious to justify refusing surrender.
The judgment concerned the surrender application. It does not determine whether the man will apply for a rehearing or whether any such application will succeed.