Adrian Prystaj v Circuit Court of Zielona Gora, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 28 March 2019 |
| Neutral Citation | [2019] EWHC 780 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1340/2018 & CO/1341/2018 |
| Date | 28 March 2019 |
[2019] EWHC 780 (Admin)
THE HONOURABLE Mr Justice Supperstone
Case No: CO/1340/2018 & CO/1341/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN AN APPEAL PURSUANT TO ss.26 & 27 OF THE EXTRADITION ACT 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Gemma Lindfield (instructed by MW Solicitors) for the Appellants
Saorise Townshend (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 19 March 2019
Approved Judgment
Introduction
The Appellants appeal against the decision of District Judge Crane (“the Judge”) made on 26 March 2018 to order their extradition to Poland pursuant to European Arrest Warrants (“EAW”) in identical terms that were both issued on 20 June 2017 and the First Appellant's EAW was certified by the National Crime Agency on 17 July 2017, and the Second Appellant's on 18 July 2017.
The Appellants are brothers. The First Appellant is aged 36. The Second Appellant is aged 31.
Their extradition is sought for them to be prosecuted in respect of one offence that on 21 August 2011, “acting jointly and in concert with [each other] and Wiktor Dolgowski” they committed a robbery with violence against a female complainant. It is alleged that they hit the complainant in the face and other parts of her body forcing her to disclose her bank account PIN number. They then stole her bank card and mobile phone (to the value, in the local currency, of approximately £11). The maximum sentence for this offence is 12 years' imprisonment.
The Appellants issued and served their applications for permission to appeal on 29 March 2018. The applications were initially stayed on 25 May 2018 by Holman J pending determination of Lis and Ors v Polish Judicial Authorities [2018] EWHC 2848 (Admin).
On 11 January 2019 Sir Wyn Williams, sitting as a High Court judge, granted permission to appeal on four grounds: first, that the judge erred in concluding that the surrender of the Appellants was not unjust or oppressive by virtue of passage of time (s.14 of the Extradition Act 2003 (“the 2003 Act”)) ( Ground 1). Second, that the judge erred in concluding that the surrender of the Appellants did not contravene s.17 of the 2003 Act ( Ground 2). Third, that the judge erred in concluding that the surrender of the Appellants would not be disproportionate in light of the Appellants' Article 8 ECHR rights (s.21A of the 2003 Act) ( Ground 3); and fourth, that the judge erred in concluding that the surrender of the Appellants was not an abuse of process ( Ground 4).
Relevant Factual Background
The First Appellant came to the UK in August 2011. On 16 April 2015 he was extradited to Poland pursuant to three EAWs issued by the Respondent. Ms Gemma Lindfield, who appears for the Appellants, informs me that in relation to one EAW the prison sentence was activated and the First Appellant served a term of imprisonment; and that he was convicted in relation to offences that were the subject of the other two EAWs and sentenced to two years' imprisonment which was reduced to 1 1/2 years on appeal. He was released sometime in October 2015 and returned to the UK that same month. The First Appellant says that the first time he became aware of the allegation that is the subject of the present EAW was in 2017 when the police were looking for him and his brother informed him of this.
The Second Appellant came to the UK on 21 August 2011. In 2013/2014 he spent eight months in detention in respect of an extradition request issued by the Respondent. He was returned to Poland pursuant to one EAW in May/June 2014. He was released on bail in Poland and allowed to return to the UK, which he did in July 2014. I understand from Ms Lindfield that subsequently he was sentenced to 1 year and 9 months' imprisonment, suspended for 5 years, for that offence.
Grounds of Appeal
I consider it appropriate to deal with the grounds of appeal in the following order: Ground 2 (s.17 of the 2003 Act); Ground 4 (abuse of process); Ground 1 (passage of time); and Ground 3 (s.21A/Article 8 ECHR).
Ground 2: Speciality (s.17 of the 2003 Act)
Legal Framework
Framework Decision
Article 27 of the Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States 2002/584/JHA (“the Framework Decision”) concerns the possible prosecution for other offences following extradition, and reads:
“1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.
For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.”
The Framework Decision was transposed into the 2003 Act by way of s.17 of the 2003 Act. Section 11(1)(f) and s.11(3) of the 2003 Act provide that a requested person must be discharged if his extradition is barred by reason of speciality, the meaning of which is set out in s.17:
“17. Speciality
(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.
(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within sub-section (3), or
(b) the condition in sub-section (4) is satisfied.
(3) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence;
(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;
(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(4) The condition is that the person is given an opportunity to leave the category 1 territory and—
(a) he does not do so before the end of the permitted period, or
(b) if he does so before the end of the permitted period, he returns there.
(5) The permitted period is 45 days starting with the day on which the person arrives in the category 1 territory.
(6) Arrangements made with the category 1 territory which is a Commonwealth country or a British Overseas Territory may be made for a particular case or more generally.
(7) A certificate issued by or under the authority of the Secretary of State confirming the existence of arrangements with a category 1 territory which is a Commonwealth country or a British Overseas Territory and stating the...
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