Appeal Under Section 26 Of The Extradition Act 2003 By Slawomir Lagunionek Against The Lord Advocate And Appeal Under Section 28 Of The Extradition Act 2003 By The Lord Advocate Against Slawomir Lagunionek
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord Brodie,Lady Clark Of Calton |
| Judgment Date | 04 June 2015 |
| Neutral Citation | [2015] HCJAC 53 |
| Date | 04 June 2015 |
| Published date | 25 June 2015 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014-003346-XM |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 53
HCA/2014-003346-XM
HCA/2015-1215-XM
Lord Menzies
Lord Brodie
Lady Clark of Calton
OPINION OF THE COURT
delivered by LORD MENZIES
in
(1) APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003
by
SLAWOMIR LAGUNIONEK
Appellant;
against
THE LORD ADVOCATE
Respondent:
and
(2) APPEAL UNDER SECTION 28 OF THE EXTRADITION ACT 2003
by
THE LORD ADVOCATE
Appellant;
Against
SLAWOMIR LAGUNIONEK
Respondent;
Appellant (Lagunionek): Govier; Wilson McLeod
Respondent (Lord Advocate): D Dickson, Solicitor Advocate; Crown Agent
4 June 2015
Introduction
[1] These appeals concern two separate European Arrest Warrants (“EAWs”); in respect of each of these EAWs the Republic of Poland seeks the extradition of Mr Lagunionek.
[2] On 10 September 2013 the Gdansk Regional Court, Poland issued an EAW requesting that Mr Lagunionek be returned to Poland from the United Kingdom in order to stand trial on two charges. The first charge is that between May 2002 and March 2003 in Gdansk, acting with a premeditated intent, being a member of an armed criminal organisation set up to commit offences, on not fewer than 42 occasions Mr Lagunionek committed pipeline robbery when he drilled through the walls of petroleum pipelines belonging to a specified company, placed spigots in the holes and then stole petroleum products in the total of not less 880,000 litres worth in total not less than PLN 2,780,0000 to the detriment of that company, and when stealing the petroleum products and transporting them in a vehicle not suitable for such purposes, caused immediate danger of explosion of inflammable substances, thus endangering the lives of people and posing a threat of great damage to property; and made the commission of such offences his regular source of income. The second charge is that between May 2002 and May 2003 in Gdansk, acting together and in collusion with other persons, Mr Lagunionek took part in the activities of an armed criminal organisation set up to commit criminal offences and headed by a named individual, which included, among others, pipeline robbery to the detriment of a specified company and trafficking in significant amounts of psychotropic substances such as amphetamine and intoxicating substances such as hashish and marijuana.
[3] Mr Lagunionek was never interviewed by police regarding these allegations and subsequently left Poland to live in the United Kingdom. The Polish authorities issued a warrant for his arrest on 23 August 2006. Once they became aware that Mr Lagunionek was living in the United Kingdom, an EAW was issued on 10 September 2013. Mr Lagunionek initially appeared at Edinburgh Sheriff Court on 29 January 2014 in respect of this EAW; he accepted that he was the person named in the warrant, but did not consent to extradition. After sundry procedure, a full extradition hearing was held on 5 June 2014, following which on 3 July 2014 the sheriff ordered Mr Lagunionek’s extradition to Poland in terms of section 21(3) of the 2003 Act. Mr Lagunionek has appealed against that decision to this court.
[4] Separately from the proceedings referred to above , the Regional Court in Gdansk, Poland issued a second EAW on 31 July 2014 requesting that Mr Lagunionek be returned to Poland from the United Kingdom on a detention warrant issued by the Gdansk District Court on 24 August 2009, pending trial on three charges. In summary, these charges were (1) that from 2003 to April 2004 he was a member of an organised criminal group formed in order to commit offences , in particular to steal petroleum from a specified petroleum pipeline in Subkowy, namely he participated in the preparation for, coordinated and supervised the perpetration of the offence; (2) between 30 March and 1 April 2004 at specified locations in Poland, acting in an organised criminal group he participated in attempted breaking into and stealing in Subkowy, namely he and the other perpetrators first drilled the petroleum pipeline at 189km of the pipeline, thus causing damage representing at least PLN 20,000, and then they attempted to steal 72.9 tons of petroleum worth at least PLN 72,099, thus acting to the detriment of a specified company; and (3) between 30 March and 1 April 2004, in Subkowy, acting in an organised criminal group he caused the immediate danger of fire of property of substantial value, and in particular the risk of ecological disaster or setting the petroleum transmitted through the pipeline on fire, by breaking into the pipeline, i.e. boring into the pipeline and fitting a valve in the hole.
[5] Mr Lagunionek was initially arrested by the authorities in Gdansk, Poland for the alleged offences and detained in custody on 8 November 2004. He admitted both his and his co-accused’s involvement in the offences and was liberated on bail on 29 August 2005. In addition to money bail, the other conditions of his bail were that he was prohibited from leaving the Republic of Poland and was subject to police supervision. Police supervision was subsequently discontinued and Mr Lagunionek left Poland in August 2006 after obtaining a new identity card.
[6] The indictment in respect of the matters covered by the second EAW was lodged with the district court in Gdansk on 16 September 2005. At a hearing of the case on 20 April 2006 Mr Lagunionek was not present but was represented by counsel. On that date the court ordered his temporary detention. As at 7 June 2006 his whereabouts were unknown and the Polish authorities decided to separate his case from that of his co-accused and to place him on a wanted notice. Proceedings against him were suspended on 17 September 2007 as he had not been located. On 24 August 2009 the district court in Gdansk withdrew the earlier order for Mr Lagunionek’s temporary detention and ordered a search for him. On 10 September 2010 the court removed the ban on his leaving Poland in view of the fact that an order for his temporary detention had been imposed.
[7] On 6 December 2012, 13 of Mr Lagunionek’s co-accused were convicted of the matters covered by the second EAW, and six were acquitted. These decisions were upheld by the regional court on 17 July 2014. On that date the District Court in Gdansk applied to the Regional Court in Gdansk to issue an EAW as they had become aware that Mr Lagunionek had been arrested in the United Kingdom.
[8] Mr Lagunionek first appeared in Edinburgh Sheriff Court in answer to the second EAW on 3 October 2014. He did not consent to extradition and was granted bail. The matter came to a full hearing on 29 January 2015, ultimately before a different sheriff from the sheriff who had reached the decision in respect of the first EAW. The hearing was continued until 2 March 2015, on which date the sheriff discharged the respondent from the second EAW in terms of sections 11(1)(c) and 14 of the Extradition Act 2003. The Lord Advocate now appeals against that decision to this court.
[9] We heard submissions for both parties in respect of each of these appeals on 4 June 2015. On that date we refused Mr Lagunionek’s appeal against the sheriff’s decision dated 3 July 2014 ordering his extradition to Poland. We granted the Lord Advocate’s appeal against the sheriff’s decision on 2 March 2015 to discharge Mr Lagunionek from the second EAW, and remitted that case back to the sheriff to proceed in accordance with the directions of this court. We indicated that we would give our reasons in writing for our decision in due course. This we now do. We consider the decisions in respect of each EAW in turn.
EAW 1 issued on 10 September 2013, in respect of which the sheriff ordered the extradition of the appellant to Poland by decision dated 3 July 2014.
[10] Before the sheriff, it was argued on behalf of Mr Lagunionek that his extradition was barred by the passage of time, in terms of section 11(1)(c) of the 2003 Act. That section requires to be read together with section 14 of the Act, which provides as follows:
“A person’s extradition to a category 1 territory is barred by the reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have –
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it).”
[11] Before looking at the evidence led before the sheriff, and the sheriff’s decision, it is convenient to set out in short summary the legal principles applying to cases in which section 14 is said to apply. In this respect we adopt the helpful summary given in the Court of Appeal in McKenzie v Examining Court No 9 Palma de Mallorca [2008] EWHC 3187 (admin), with some further observations of our own.
[12] First, the overriding test is one of injustice or oppression by reason of the passage of time.
[13] Second, subject to one possible exception, the burden of proving injustice or oppression rests with the requested person, and the standard is that of a balance of probabilities.
[14] Third, injustice and oppression in this context is directed to hardship to the requested party resulting from changes in circumstances that have occurred during the period between the charge and the request. “Unjust” is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration – Kakis v Republic of Cyprus [1978] 1 WLR 779 per Lord Diplock at 782. See also Wlodarczyk v The Lord Advocate [2012] HCJAC 41 at [11], and the speech of Lord Brown of Eaton-Under-Heywood in Gomes v Government of Trinidad and Tobago [2009] 1WLR 1038 at paragraphs 31 to 35. The concept of injustice requires the requested court to consider, in the facts of any particular...
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