Damian Baciejowski v District Court in Koszalin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 764 (Admin) |
| Docket Number | Case No: CO/2212/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 764 (Admin)
Mr Justice Fordham
Case No: CO/2212/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Genevieve Woods (instructed by Abbey Solicitors) for the Appellant
Gary Dolan (instructed by CPS) for the Respondent
Hearing date: 9.3.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is an extradition case at whose heart are grounds of appeal as to whether it would be “unjust or oppressive to extradite” the Appellant “by reason of the passage of time since he is alleged to have committed the extradition offences” (section 14 of the Extradition Act 2003) or whether extradition would be incompatible with Article 8 ECHR rights to respect for private and family life (section 21A(1)(b). There is also a distinct issue about statutory proportionality (section 21A(1)(b)). In order to do justice to the arguments of Ms Woods for the Appellant on section 14 and Article 8, I will need to conduct an analysis of the sequence of events across a timeline from 2010 to 2021, dealing along the way with a series of eleven issues referable to points in that timeline. But before doing that I will set the scene, address the section 21A(1)(b) issue, and discuss ‘missed opportunity’ extradition and ‘speciality’ protection.
The Appellant was born in November 1991 and is aged 31. He is wanted for extradition to Poland. That is in conjunction with an ‘accusation’ Extradition Arrest Warrant (“the ExAW”) issued on 11 July 2019, certified by the National Crime Authority on 6 May 2021, on which he was arrested on 14 September 2021. There are two alleged offences (“the Alleged Index Offences”) of which he is accused and is wanted to stand trial, pursuant to the ExAW. First, on 6 May 2011 (aged 19) he allegedly obtained a bank loan by fraud in a sum equivalent to £377, by falsely stating to the lending bank that he was employed by a named employer (“the Bank Loan Fraud”). Secondly, on 1 October 2011 (also aged 19) he allegedly committed a violent assault, beating the victim and kicking them to the head (“the Assault”). The statutory maximum sentences in Poland are imprisonment for 8 years (the Bank Loan Fraud) and 5 years (the Assault). After an oral hearing on 13 May 2022, at which the Appellant adopted his October 2021 witness statement and gave oral evidence, with cross-examination, DJ Clews (“the Judge”) ordered the Appellant's extradition for reasons set out in a judgment dated 13 June 2022 (“the Judgment”). The documentary evidence before the Judge included a document issued on 5 October 2021 by the Criminal Records Office (the “ACRO Document”) and Further Information from the Respondent dated 5 January 2022 and 31 January 2022. The oral evidence given by the Appellant was summarised in detail in the Judgment. The Judge rejected arguments based on bars to extradition arising by virtue of section 14, Article 8 or section 21A(1)(b). My responsibility is to decide whether I think the Judge was “wrong” to do so.
Section 21A(1)(b)
I will start with the distinct issue raised in relation to the statutory proportionality test in section 21A(1)(b), read with (2) and (3). Ms Woods says that the Judge was “wrong” not to discharge the Appellant in relation to the Bank Loan Fraud. I am satisfied that there is no legal merit in that argument. The Judge impeccably summarised the substantive contents of the statutory provisions and Criminal Procedure Rules Practice Direction, and the principles derived from Miraszewski v Poland [2014] EWHC 4261 (Admin) [2015] 1 WLR 3929. He correctly identified, as a listed “type of offence” in respect of which a judge ought generally to determine that extradition would be disproportionate unless there are exceptional circumstances: “obtaining a bank loan using a forged or falsified document”. He also correctly identified, as listed examples of “exceptional circumstances”: (i) significant pre-meditation; (ii) extradition also sought for another offence; and (iii) previous offending history. Ms Woods says the Judge was “wrong” to say “it is inevitable that an offence of this kind will have involved significant pre-meditation”. She says: (a) obtaining a bank loan on false employment information (as alleged here) could be “spur of the moment”; and (b) the ExAW description does not provide any description of pre-meditation. To these, I would add a third: (c) it cannot be correct, as a coherent interpretation of the Practice Direction, that an identified “inevitable” feature of a listed “type of offence” is at the same time an inevitable “exceptional circumstance”. That interpretation would simultaneously give with one hand and take with the other. The reason why this point has no legal merit is that the Judge found a ‘full house’ of exceptional circumstances. The Judge unassailably found: that extradition is being sought for another offence; and that the Appellant has a significant offending history in Poland. Moreover, as to the latter, as the Judge pointed out, the alleged Bank Loan Fraud would have been committed (6.5.11) while awaiting being dealt with for criminal damage and theft (of which the Appellant was convicted on 18.5.11). I would add that the Bank Loan Fraud would also have been committed the same day as a 2 year suspended sentence took effect, for robbery and attempted theft; and the Assault would have been committed during the currency of three suspended sentences. Even if I were to retake the section 21A(1)(b) evaluative exercise, I agree with the Judge as to the outcome. This ground fails.
‘Missed Opportunity’ Extradition
An important feature of the case is what I am going to call ‘missed opportunity’ extradition. The Appellant was extradited to the same requesting state (Poland) in the past. In 2013 he was extradited there from Germany, after German extradition proceedings in the first half of 2013 (the “2013 Extradition”). His extradition surrender was on 1 July 2013. It is common ground that he did not consent to the 2013 Extradition, which is known to have had the following features. It did not relate to the Alleged Index Offences. It related only to certain 2011 convictions, imposed for certain 2010 offences (“the 2010 Offences”), in respect of which suspended sentences imposed in 2011 had been ‘activated’ in early 2012. Those features can all reliably be deduced from the ACRO Document, as can the “beginning of the sanction” (23.4.13) reflecting the start of qualifying remand in Germany. The ACRO Document describes the overall sentence to be served in Germany as having been determined (on 11.3.14) as 3 years 4 months, credit having been given for a period of remand in Poland (20.9.10–28.4.11). After the 2013 Extradition, it is known that the Appellant served his term of imprisonment in Poland until being released (12.1.16) and given 45 days to leave Poland (the “45 Day Notice”). The 2013 Extradition has been characterised by Ms Woods for the Appellant as a ‘missed opportunity’ extradition. That is because charging decisions had been taken in relation to the Alleged Index Offences: on 20 December 2011 (the Assault); and on 13 July 2012 (the Bank Loan Fraud). Moreover, in conjunction with the Alleged Index Offences, a prohibition was issued (20.12.12) on the Appellant leaving Poland (the “December 2012 Prohibition”). Furthermore, the Respondent's position is that by October 2013 the Alleged Index Offences were able to be put at a court hearing in Poland. One way or another, says Ms Woods, the Alleged Index Offences could have been pursued in conjunction with the 2013 Extradition. That opportunity was missed.
The Shielding Safeguard of “Specialty”
Another feature of this case is the specialty (or “speciality”) rule, described as follows by Sir Declan Morgan in Warner v Attorney General of Trinidad and Tobago [2022] UKPC 43 at §65:
Specialty is a rule of extradition law that is intended to ensure that the person extradited is not dealt with in the requesting state for any offence other than that for which he was extradited .
As the Explanatory Notes to the Extradition Act 2003 put it (at §53):
The speciality rule is a long-standing protection in extradition. It prohibits a person from being prosecuted in the requesting territory after his extradition for an offence committed before his extradition. The exceptions to this rule are where the offence is that in respect of which he was extradited, where the consent of the requested state is obtained or the person has had an opportunity to leave the country to which he was extradited but has failed to do so .
This ‘shielding safeguard’ of specialty is seen at Article 27(2) of the EU Framework Decision 2002/584/JHA (to which Article 13(1) makes reference), with exceptions identified at Article 27(3). The provisions of Article 27, references to which will feature heavily throughout this judgment, and Article 13 are set out below. The following observations can be made. (1) The relevance of the 45 Day Notice (§4 above) can be seen from Article 27(3)(a) (and also in s.17(5) of the 2003 Act). (2) An exception based on renunciation accompanying prior consent to extradition, while the requested person is in the executing state (here, Germany in the first half of 2013), is seen at Article 27(3)(e) read with Article 13. (3) An exception based on renunciation after surrender, when the requested person is back on the issuing state (here, Poland after 1.7.13) is seen at Article 27(3)(f) (and reflected in s.17(2)(f) of the 2003 Act). (4) An exception based on consent from the executing state (here, Germany) after the requested person...
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