Arkadiusz Antczak v Regional Court in Szczecin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,THE LORD CHIEF JUSTICE |
| Judgment Date | 19 March 2014 |
| Neutral Citation | [2014] EWHC 1075 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11932/2013 |
| Date | 19 March 2014 |
[2014] EWHC 1075 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
( Lord Thomas of Cwmgiedd)
and
Mr Justice Cranston
CO/11932/2013
Mr M Hawkes (instructed by Wainwright Cummins) appeared on behalf of the Appellant
Miss Amelia Nice (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
Wednesday 19 March 2014
THE LORD CHIEF JUSTICE: Mr Justice Cranston will give the first judgment.
This is an appeal against a decision of District Judge Snow given on 21 August 2013 to order the appellant's extradition to Poland pursuant to a European Arrest Warrant issued in March 2013 by the Regional Court of Szczecin, Poland. It was certified by the Serious Organised Crime Agency six weeks later. The appellant was arrested a few days after that. Poland is a designated category 1 territory under the Extradition Act 2003.
The warrant seeks the appellant's return to face trial for two offences of anal rape and sexual assault on a 7 year old boy. The offences were said to have occurred on two occasions in Coventry, the first during the period of July/August 2006, and the second during the same months of the following year. One states that the offences were committed in the conditions of "relapse to crime". Box B of the warrant states that a domestic warrant was issued by the District Court in Stargard on 14 September 2012; box C, that the maximum sentence for the offences is twelve years' imprisonment; and box E, that the relevant provisions of the Polish Penal Code are articles 200.1 and 64.1.
There was further information before the District Judge in a letter dated 30 July 2013 from the Szczecin Regional Court, enclosing a response of the District Public Prosecutor's Office. In outline, it explained that the appellant had been previously convicted of a similar offence under articles 200.1 and 64.1 of the Polish Penal Code and had served five years' imprisonment between 2000 and 2005. The letter also stated that the offences alleged in the warrant were committed when the complainant was on holiday in Coventry with his father. The boy's parents had reported the offending to the County Police Headquarters in Stargard. In mid-2011 the District Prosecutor's Office in that city investigated. About a year later, on 24 July 2012, the appellant telephoned the police and later spoke to the Prosecutor's office. He said that he knew the boy. When he said that he could not return to Poland immediately, he was told that he should or he would face extradition. In a letter dated September 2012 the appellant had requested that the case be postponed until February 2013, when he would be on holiday in Poland and would attend for questioning. In late November 2013 the appellant employed a Polish lawyer who was registered with a Power of Attorney. There was a summons a week later, but the appellant failed to appear on the required date. The letter from the District Public Prosecutor's Office finally records that the lawyer stated in court that the appellant had failed to contact him.
When the matter came before District Judge Snow at the Westminster Magistrates' Court in August 2013 the only issue pursued was under section 21 of the Extradition Act, that if convicted the appellant would be subjected to "chemical castration". Consequently, it was submitted, extradition would be in breach of article 3 of the European Convention on Human rights. There was a document before the judge which was said to contain article 95A of the Polish Penal Code regarding chemical castration. The judge said that it was not specific enough and did not reach the standard of evidence that had been presented in Janiga v Czech Republic [2011] EWHC 553 (Admin), where there was clear evidence before the court of the position about chemical castration in the Czech Republic. The District Judge added that, in the absence of evidence, he would apply the presumption that Poland would comply with its Convention obligations. At some point the District Judge had apparently made enquiry as to whether the authorities in this country proposed to pursue a prosecution, and the answer was negative.
The appellant appealed to this court. In addition to the article 3 point, he raised three further issues to which I will come. In relation to the article 3 issue, for the purposes of the appeal, an expert legal opinion was obtained from Mr Marcin Szydziak, dated 8 November 2013. He trained to be a judge between 2004 and 2007, but qualified as a private lawyer in 2009. His report sets out two versions of article 95 of the Polish Penal Code (one before it was amended in 2009 and the current version). The first version provided that the court may, in relation to certain sexual offences, order placement of the perpetrator, after serving a sentence, in a closed institution or refer him to outpatient treatment. The second version of article 95a came into force on 8 June 2010. It applies to the same type of serious sexual offending and provides that the court may order drug therapy intended to prevent the offender committing the same offence through a reduction of the aberrant sexual behaviour. Later, the report explains that "may" in the context of that article means "must". Mr Szydziak comments that under the current version of the article there are two cases where the use of such preventative measures is mandatory. After quoting article 4.1 of the Polish Penal Code, he adds this:
"Accordingly, in cases where the act has been committed before 8 June 2010, under the regime of the law providing only for optional application of the measures under Article 95a of the Penal Code, while the currently binding law in some cases provides for mandatory application of that measure, in such cases (if the offence was committed before 8 June 2010) the earlier law shall apply."
Later, the report says that the court must always take the opinion of two experts before taking preventative measures. Under the heading "Conclusion" the report reads:
"In accordance with the law applicable at the time when the offences were allegedly committed (2006–2007) it was the Court's discretion to order chemical castration. The court would be directed and take into account experts' opinions in the matter.
….
In application of law relevant in 2006–2007 the Court ought to order chemical castration if the experts so direct."
In relation to the appeal, there is also a statement from the appellant dated October 2013 in which he denies the offending. He explains that the boy, his father and the father's girlfriend did stay with him in Coventry in the summer of 2006 and of 2007. He explains that there were other Polish persons around at the time, and he states that he now lives in Coventry with his wife whom he married in 2010 and his young son. He says that he had been unable to travel to Poland in 2012 after he had spoken to the authorities in Poland because of the illness of his young son; that he had travelled to Poland over Christmas 2012 to speak to the prosecutor; but that she did not attend an arranged interview because she was on vacation. The statement ends that he could not remain until her return and had to return to this country to his work.
There is also a statement from the appellant's wife which describes the impact his extradition would have on her and their son.
This morning we were presented with a letter from a Judge of the Regional Court...
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