Arkadiusz Straszewski v District Court in Bydogszcz, Poland
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies,Lord Justice Lloyd Jones |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] EWHC 844 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4595/2016 |
| Date | 12 April 2017 |
[2017] EWHC 844 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt. Hon. Lord Justice Lloyd Jones
The Hon. Mrs Justice Nicola Davies DBE
Case No: CO/4595/2016
James Stansfeld (instructed by Tuckers Solicitors) for the Appellant
Saoirse Townshend (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 23 March 2017
Approved Judgment
The appellant seeks permission to appeal the order of Deputy Senior District Judge Arbuthnot (as she then was) who ordered the extradition of the appellant on 2 September 2016 following a contested extradition hearing on 30 August 2016 pursuant to section 26 of the Extradition Act 2003 ("the 2003 Act"). The extradition of the appellant is sought pursuant to a European arrest warrant ("EAW") issued by the respondent, the District Court in Bydgoszcz, on 29 April 2016 and certified by the National Crime Agency on 10 June 2016.
The EAW seeks the surrender of the appellant in order to execute a custodial sentence of 2 years, 11 months and 28 days imprisonment, imposed in respect of ten offences of theft of and from motor vehicles and two offences of the attempted theft of/from motor vehicles. The offences occurred between November 2010 and March 2011, the total value of loss is 292,374 PNL (approximately £58,000). The appellant was arrested on 18 July 2016, he was remanded in custody and has remained in custody throughout the proceedings. The Appellants' Notice was filed and served on 8 September 2016. Permission to appeal was granted by Turner J at an oral renewal hearing on 7 December 2016 having previously been refused on papers by Baker J by an order dated 4 November 2016.
The appellant now appeals on the ground that DSDJ Arbuthnot erred in finding that the EAW complies with section 2(6)(b) or (c) of the 2003 Act.
The powers of the High Court on appeal
" 26 Appeal against extradition order
(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.
(2) But subsection (1) does not apply if the order is made under section 46 or 48.
(3) An appeal under this section—
(a) may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
(4) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.
(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.
27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
The legal framework
Section 2 of the 2003 Act provides, so far as is relevant in this case:
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
…
(5) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
Council Framework Decision of 13 June 2002 – 2002/584/JHA ("FD")
Article 1(1) provides:
"1.1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
Article 8 – Content and form of the European arrest warrant:
"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a) the identity and nationality of the requested person;
(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;
(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in respect of Article 2;
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;
(g) if possible, other consequences of the offence."
Article 15 – Surrender decision:
"1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.
3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority."
The European arrest warrant
The relevant parts of the EAW are as follows:
Box B of the EAW identifies the decision upon which the warrant is based and states:
"…effective judgment:
…Judgment of the Regional Court in Bydgoszcz dated December 15 2011 in case files reference number IVK566/11; …"
Box C relates to indications as to length of sentence and states:
"2. Length of the custodial sentence or any other detention order imposed:
…Judgment of the Regional Court in Bydgoszcz dated December 15 2011 in case files reference number IVK566/11 – 3 (three) years of deprivation of liberty…
3. Remaining sentence to be served:
…Judgment of the Regional Court of Bydgoszcz dated December 15 2011 in case files reference IVK566/11 – 2 (two) years 11 (eleven) months 28 (twenty eight) days."
The hearing before DSDJ Arbuthnot
The issue before DSDJ Arbuthnot was whether the decision activating the suspended sentence is the "enforceable judgment" or enforceable judicial decision for the purposes of Article 8(1)(c) of the FD and thus must be particularised pursuant to section 2(6) of the 2003 Act.
At [7] of her judgment the District Judge records that:
"The JA evidence consisted of the EAW and a document from the UK Central Authority for the Exchange of Criminal Records which sets out the RP's criminal record in Germany and Poland. This document sets out the date of the sentence and its activation. There is also a document showing the RP's very limited criminal history in this jurisdiction."
At [9] of her judgment the District Judge records that the court heard evidence from the appellant who adopted his proof of evidence stating it was true. He told the court that he had been sentenced to a 3 year sentence of imprisonment suspended for 7 years on various conditions. One of the conditions was that he remain in contact with his probation officer. The probation officer had made it a condition that he was to meet her in person and provide her with his full address in the United Kingdom. The appellant had failed to do that. The...
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