Andrzej Augusciak v District Court of Jelena Gora Poland

This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Coleman ordering the appellant's extradition to Poland in order to serve the balance of a sentence that had been imposed for offences of burglary. The appeal is based on two grounds, one under Article 8 and the second that there was a breach of the requirement that the extradition hearing be commenced within 21 days and as a result there is an obligation to discharge. It is convenient to deal with that issue first.

The appellant was arrested under the European Arrest Warrant on 6 January 2012. At that time he was still serving a sentence totalling 5 years' imprisonment for firearms offences. In fact, he has an exceedingly bad record in this country. As a result, by virtue of the provisions of section 8B of the Extradition Act 2003, there was power given to the judge to adjourn further proceedings in respect of the extradition until release from prison pursuant to the sentence. That does not, of course, mean that he had to be freed because when his release date arrived on 23 March 2012 he was not freed because he was kept in custody under the arrest warrant.

It was not until 24 July 2012 that the extradition hearing began. It is common ground that no steps had been taken by the Magistrates' Court to commence the hearing until that day and, of course, that is more than 21 days after 23 March. The point taken, when it was discovered that that was the position, was that discharge ought to have occurred.

I should say that there is a somewhat lengthy history, which perhaps is obvious from the fact that the extradition warrant resulted in his arrest in January 2012 and we are now 2 years on. In fact, originally, the District Judge decided in his favour on the basis of Article 3 of the European Convention on Human Rights. I need not go into great detail but that arose because he had been witness to a murder and he gave evidence, despite being very reluctant to do so, in this country and his evidence was very important in securing the conviction of the murderer. But the murderer has family, one of whom was also in custody in Poland, and it is necessary that the appellant and that individual be kept apart. That was achieved in this country by them being in separate prisons. But the concern is, and was, that in Poland they would be in the same prison because the individual has been extradited to Poland now to deal with offences there and is in custody in Poland.

The District Judge, as I said, found in favour of the appellant but the CPS appealed and the appeal was allowed on the basis that the District Judge had not properly applied the considerations in respect of Article 3. So it was that there was a subsequent hearing before District Judge Coleman in 2013. It was at that subsequent hearing that for the first time it was appreciated, because the appellant's counsel was informed, that the hearing had not been opened until 24 July. So the point was taken that I have mentioned.

That point depends upon consideration of the relevant provisions of the Act. The starting point is section 7. Subsection (1) of section 7 provides, so far as material:

"This section applies if—

(a)a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3) … "

That is what occurred on 6 January. Subsection (2) says that the judge must decide whether the person is indeed the person named in the warrant. By subsection (4) it is provided that if the judge decides that question in the negative he must order the person's discharge. That is perhaps rather unsurprising. But subsection (5) provides:

"If the judge decides that question in the affirmative he must proceed under section 8."

Section 8 provides:

"(1)If the judge is required to proceed under this section he must—

(a)fix a date on which the extradition hearing is to begin;

(b)inform the person of the contents of the Part 1 warrant;

(c)give the person the required information about consent;

(d)remand the person in custody or on bail."

The required information about consent is that the person may consent and an explanation is to be given of the effect of the consent and the procedure and that consent is irrevocable.

Then subsection (4) provides:

"The date fixed under subsection (1) must not be later than the end of the permitted period, which is 21 days starting with the date of the arrest referred to in section 7(1)(a) or (b)."

But a party may apply for a later date to be fixed (that is the date for the hearing to begin) if the request is made and the judge believes it to be in the interest of justice to do so. That may happen more than once. But if the extradition hearing does not begin on or before the date fixed under section 8 then, by subsection (7), it is provided that:

"If the person applies to the judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay."

Subsection 8 provides that:

"If no application is made under subsection (7) the judge must order the person's discharge on the first occasion after the date fixed under this section when the person appears or is brought before the judge, unless reasonable cause is shown for the delay."

I should say here that it is not suggested, and cannot be, that any reasonable cause has been shown for the delay between 23 March, when the release of the appellant from his sentence here became effective, and 24 July.

In order to deal with the problem that had been created by section 8, namely that a person facing serious charges in this country but wanted on an extradition warrant for perhaps somewhat less serious matters or to serve a relatively short sentence in another EU State could consent to extradition and then the extradition would take place and he would avoid the consequences of prosecution in this country. That was considered, for obvious reasons, to be undesirable. That is covered by section 8A, which provides:

"(1)This section applies if—

(a)a person has been brought before the appropriate judge under section 4( 3) or 6(2) but the extradition hearing has not begun; and

(b)the judge is informed that the person is charged with an offence in the United Kingdom.

(2)The judge must order further proceedings in respect of the extradition to be adjourned until one of these occurs—[that, effectively, is that the charge comes to an end whether by conviction or by discontinuance].

(3)If a sentence of imprisonment or another form of detention is imposed in respect of the offence charged, the judge may order further proceedings in respect of the extradition to be adjourned until the person is released from detention pursuant to the sentence (whether on licence or otherwise)."

Thus there is an obligation to adjourn and not to begin the extradition hearing if there are charges still to be dealt with here and then a discretion to adjourn further if a sentence of imprisonment has been imposed. Section 8B deals specifically with the case of a person serving a sentence at the time that the arrest warrant is put into effect. 8B provides:

"(1)This section applies if—

(a)a person has been brought before the appropriate judge under section 4( 3) or 6(2) but the extradition hearing has not begun; and

(b)the judge is informed that the person is in custody serving a sentence of imprisonment or another form of detention in the United Kingdom.

2)The judge may order further proceedings in respect of the extradition to be adjourned until the person is released from detention pursuant to the sentence (whether on licence or otherwise)."

Then there are provisions in respect of remand in custody which I do not need to read.

There is nothing in 8A or 8B which deals specifically with the 21 day provision in section 8(6), (7) and (8). It is, to say the least, unfortunate that when sections 8A and 8B were inserted, as they were by the Policing and Crime Act 2009, that gap was not noted and was not explicitly considered. I have the Anti-social Behaviour, Crime and Policing Bill clause 152 before me. That has been through the Commons and is to be considered by the Lords at the moment but if enacted it will provide for the insertion into section 8 of a new subsection (4A), which provides:

"But if proceedings in respect of the extradition are adjourned under section 8A or 8B, the permitted period is extended by the number of days for which the proceedings are so adjourned."

That fills the gap that ought to have been filled when 8A and 8B were enacted.

The result of 8A and 8B was considered specifically by Mitting J in Morozovs v Latvian Judicial Authority [2013] EWHC 367 ...