Adam Wawrzyczek v The District Court in Bielsko-Biala, Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mr Justice Julian Knowles |
| Judgment Date | 21 January 2021 |
| Neutral Citation | [2021] EWHC 64 (Admin) |
| Date | 21 January 2021 |
| Docket Number | Case No: CO/3115/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 64 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
Mr Justice Julian Knowles
Case No: CO/3115/2019
Myles Grandison (instructed by Lansbury Worthington) for the Appellant
Nicholas Hearn (instructed by CPS) for the Respondent
Hearing date: 8 December 2020
Approved Judgment
This is an appeal by Adam Wawrzyczek (the Appellant) against the order for his extradition to Poland made by District Judge Baraitser on 1 August 2019 under Part 1 of the Extradition Act 2003 (the EA 2003).
The District Court in Bielsko-Biala, Poland (the Respondent) seeks the Appellant's extradition in relation to a European Arrest Warrant (EAW), issued on 7 September 2017 and certified by the National Crime Agency on 11 October 2017. For reasons which will become clear I will call this EAW2.
EAW2 is a conviction warrant. It contains 32 offences. The Appellant's extradition is sought for him to serve two separate aggregated sentences of imprisonment. The first sentence relates to offences I-XXX and is of two years and two months' imprisonment, nearly all of which remains to be served. The second sentence of two years' imprisonment, all of which remains to be served, relates to offences XXXI and XXXII. The various offences are all categorised as ‘fraud’ on the Framework list of offences. I will set out the details later. It is unclear, as the district judge noted in her judgment at [90], whether the sentences will run concurrently or consecutively.
This is the second request for the Appellant's extradition. He was arrested on an EAW (EAW1) in 2015. EAW1 contained three offences, arising out of two sets of criminal proceedings in Poland, and these also appear on EAW2 as offences I, XXXI and XXXII. His extradition was ordered on EAW1 by District Judge Ikram (as he then was) on 29 May 2015. On 9 October 2015 the Appellant was discharged following a successful appeal to the High Court: [2015] EWHC 2854 (Admin).
The Appellant was arrested on EAW2 on 13 January 2019 and brought before Westminster Magistrates' Court on the following day. He is currently subject to conditional bail. The 32 offences on EAW2 arise out of four sets of criminal proceedings in Poland; under Polish criminal procedure these were aggregated to produce the two custodial sentences to which I have referred.
Grounds of appeal against the order for extradition were filed and served on 7 August 2019. Permission to appeal was granted on two grounds by Steyn J on 5 December 2019.
The Appellant was represented before us on the appeal by Mr Grandison and the Respondent by Mr Hearn. I am grateful to both of them for their clear and focussed written and oral submissions.
The two grounds of appeal for which permission was given are as follows:
a. Ground 1: firstly, that the district judge erred in finding that, in relation to offences I, XXXI and XXXII, the second set of extradition proceedings did not constitute an abuse of process. Mr Grandison made clear that even if we were with him on this ground of appeal, his client would be liable (subject to our decision on the second ground) to be extradited on the remaining 29 offences.
b. Ground 2: second, that the district judge ought to have decided differently the question of whether extradition would be compatible with the Appellant's and his family's rights under Article 8 of the European Convention on Human Rights (the Convention). Had she done so, she would have been required to order the Appellant's discharge pursuant to s 21.
By an application dated 6 November 2020 the Appellant seeks to add a third ground of appeal, namely, that the district judge ought to have concluded that EAW2 was not issued by a ‘judicial authority’ as required by s 2(2) of the EA 2003 and that, had she done so, she would have been required to order the Appellant's discharge.
This third ground of appeal was not raised at the extradition hearing. Consequently, an application has been made pursuant to Crim PR r 50.20(6)(b). In summary, it is submitted that various legislative amendments that occurred in Poland in December 2019 and January 2020 mean that its courts can no longer be recognised as ‘judicial authorities’ capable of legitimately issuing EAWs for the purposes of s 2(2) as they lack the requisite independence from the executive. This issue is to be considered in March 2021 by a Divisional Court in the cases of Chlabicz v Regional Court in Bialystok (CO/4976/2019) and Wozniak v District Court of Gniezno (CO/4299/2019).
A similar argument was considered by the CJEU in Openbaar Ministerie (Independence of the issuing judicial authority) (Joined Cases C-354/20 PPU and C-412/20 PPU), following a reference by a Dutch Court. Advocate General Campos Sánchez-Bordona issued his Opinion on 12 November 2020 and the CJEU gave judgment on 17 December 2020 (ie, after the hearing before us).
In summary, the CJEU held that systemic or generalised deficiencies affecting the independence of the issuing Member State's judiciary, however serious, are not sufficient on their own to enable an executing judicial authority to consider that all the courts of that Member State fail to fall within the concept of an ‘issuing judicial authority’ of an EAW which, the Court said, is a concept which implies, in principle, that the authority concerned acts independently. The Court said that such deficiencies do not necessarily affect every decision that those courts may be led to adopt. The Court went on to state that, although limitations may in exceptional circumstances be placed on the principles of mutual trust and mutual recognition which underpin the operation of the EAW mechanism, denial of the status of ‘issuing judicial authority’ to all the courts of the Member State concerned by those deficiencies would lead to a general exclusion of the application of those principles in connection with the EAWs issued by those courts.
The Court said that a fact-sensitive examination needed to be carried out, where this issue is raised, in accordance with the two-stage test set out in its decision in Minister for Justice and Equality (Deficiencies in the legal system) (C-216/18 PPU). The Court went on to say that where the EAW has been issued for the purposes of criminal proceedings, the executing judicial authority must, where appropriate, take account of systemic or generalised deficiencies concerning the independence of the issuing Member State's judiciary which may have arisen after the EAW concerned was issued and assess to what extent those deficiencies are liable to have an impact at the level of that Member State's courts with jurisdiction over the proceedings to which the person concerned will be subject. Where an EAW is issued with a view to the surrender of a requested person for the execution of a custodial sentence or a detention order, the executing judicial authority must examine to what extent the systemic or generalised deficiencies which existed in the issuing Member State at the time of issue of the European arrest warrant have, in the particular circumstances of the case, affected the independence of the court of that Member State which imposed the custodial sentence or detention order the execution of which is the subject of that EAW. The Court said that a general suspension of the EAW mechanism with regard to a Member State, which would make it permissible to refrain from carrying out such an assessment and to automatically refuse to execute EAWs issued by that Member State, would be possible only if the European Council formally declared that the Member State had failed to respect the principles on which the EU is based (the mechanism for which is contained in Article 7(2) of the Treaty on European Union ( OJ C 326, 26 October 2012)).
Mr Grandison proposed that we deal with the two existing grounds of appeal and (if necessary) adjourn his application to add the new ground of appeal until at least 14 days after the Divisional Court has given judgment in Chlabicz and Wozniak. This will enable the Appellant to make further submissions in light of that judgment. Mr Grandison said such an approach was approved in Podolak v Polish Judicial Authority [2020] EWHC 2830 (Admin), [5].
If my Lord agrees, I would accede to Mr Grandison's application.
The background
The offences
The 32 offences on EAW2 were dealt with, ultimately, by two court decisions in Poland:
a. The first court decision, II K 1368/15, is an amalgamated sentence for offences I to XXX. These were initially dealt with in three sets of proceedings: offence I under case reference 898/09; offences II to IV under case reference 02/05; and offences V – XXX under case reference 106/II. In broad terms, each offence alleges that the Appellant ordered goods and livestock from named companies and then failed to pay for them. The details of each of the 30 offences are set out in [6] of the district judge's judgment. In the main they date back to 2002 – 2004.
b. The second decision, II K584/06, deals with the remaining two offences, XXXI and XXXII. Offence XXXI alleges that in 2005 the Appellant misrepresented his employment status in order to obtain a loan from a bank. Offence XXXII alleges that between 2003 and 2005 he obtained veterinary services which he failed to pay for.
As to sentence, according to Box (c) on EAW2:
a. in the first case (II K1368/15) an aggregate sentence of two years and two months' imprisonment was imposed, of which two years, one month and 28 days remain to be served;
b. in the second case (II K584/06) an aggregate sentence of two years' imprisonment was imposed, all of which remains to be served.
At [13] of...
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