Damian Paczkowski v Regional Court of Szczecin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 19 June 2023 |
| Neutral Citation | [2023] EWHC 1489 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1490/2022 |
[2023] EWHC 1489 (Admin)
THE HONOURABLE Mr Justice Morris
Case No: CO/1490/2022
IN THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Hill (instructed by Shearman Bowen) for the Appellant
Stefan Hyman (instructed by CPS (Extradition)) for the Respondent
Hearing dates: 18 January 2023 and 9 February 2023
Approved Judgment
This is an appeal against the decision of District Judge Turnock (“the Judge”) dated 21 April 2022 (“the Decision”) to order the extradition of Damian Paczkowski (“the Appellant”) to Poland. Permission to appeal was granted by Hill J on 23 September 2022. The Respondent is the Regional Court in Szczecin, in Poland.
The sole ground of appeal is that the Judge was wrong to conclude that extradition is not barred by reasons of forum under s.19B Extradition Act 2003 (“the 2003 Act”).
In her order, Hill J refused the Respondent's application to adduce fresh evidence dated 7 June 2022. The Respondent has now applied, afresh, for this evidence to be admitted. In this judgment, after setting out the legal and factual background, I consider this application first, before going on to address the substance of the appeal.
The relevant legal background
The forum bar
Section 19B of the 2003 Act is headed “forum” and provides as follows:
“(1) The extradition of a person (“D”) to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge—
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice—
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to—
(i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.
(5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.
(6) In this section “D's relevant activity” means activity which is material to the commission of the extradition offence and is alleged to have been performed by D.”
In relation to section 19B, I have been referred to a number of the leading authorities including Dibden v France [2014] EWHC 3074 (Admin) at §§8, 18, 25, 30, 48; Shaw v USA [2014] EWHC 4654 (Admin) at §48; Atraskevic v Lithuania [2016] 1 WLR 2762 at §39; Love v USA [2018] EWHC 172 (Admin) at §§34 and 35; Ejinyere v USA [2018] EWHC 2841 (Admin); Wyatt v USA [2019] EWHC 2978 (Admin) at §5; Scott v USA [2019] 1 WLR 774 at §§28 to 31; and USA v McDaid [2020] EWHC 1527 (Admin) at §§43 and 44. The following propositions are derived from these authorities:
(1) The purpose of the forum provision is to prevent extradition where the offences can be fairly and effectively tried in the UK.
(2) Where the threshold condition in s.19B(2) is satisfied, the court must go on to consider, and consider only, the six specified matters relating to the interests of justice. The relative importance of each varies from case to case.
(3) Where the majority of the harm is felt in the UK, this is a factor of some weight against extradition.
(4) As regards s.19B(3)(c) and the belief of a UK prosecutor, where no view is expressed, this is a neutral factor: see Scott at §31 (not following Love at §§34 and 35).
(5) As regards s.19B(3)(g), connections cover family ties, employment and studies, property, duration and status of residence and nationality.
The approach on appeal from a district judge
In relation to the approach on appeal with particular reference to a forum bar issue, I have been referred to Celinski v Poland [2015] EWHC 1274 (Admin) citing Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin) as well as to Shaw at §§42–43, Love at §25, Wyatt at §6 and McDaid at §15. The following summary principles emerge. As regards appeals from a district judge, the threshold question is on “what basis can the Court interfere with the judge's value judgment” as to whether it is in the interests of justice that extradition should not take place. The Court can interfere where the judge has misconstrued the statutory wording of one of the specified matters or has failed to have regard to a specified matter or has had regard to other matters or if the overall value judgment is irrational or unreasonable. The question for the Court is whether the judge was wrong; it is not to unpick the reasoning with a view then to inviting the appeal court to make a primary decision.
The Factual Background
The Arrest Warrant
The Respondent seeks the extradition of the Appellant pursuant to an Arrest Warrant (“AW”) issued by the Respondent on 13 September 2021. The AW was certified by the National Crime Agency on 8 November 2021. The AW is underpinned by the Respondent's domestic arrest warrant of 26 July 2021.
The AW seeks the Appellant's return to face trial. The alleged conduct relates to three offences: one against the public order contrary to Article 258 of the Polish Criminal Code and two offences contrary to various provisions of the Prevention of Drug Addiction Act of 29 July 2005. In more detail the three offences founding the AW are as follows:
(i) In the period from the beginning of 2019 to 25 July 2019, on the territory of Poland, Spain and other European Union countries, the Requested Person was a member of an organised criminal group directed by Kamil Szymanski, whose purpose was to import controlled drugs (namely cannabis, cocaine and methamphetamine) into the territory of the European Union. I refer to this as Offence 1. The Requested Person's role in this conspiracy is particularised to have been “the organisation of the transport of drugs, their hiding and their loading as well as passing over the money”. The AW specifies that the maximum sentence for this offence is five years' imprisonment.
(ii) On a day on or before 16 June 2019, the Requested Person conspired with others to import 1171kg of methamphetamine into Spain for the purpose of its further distribution. I refer to this as Offence 2. The AW specifies that the maximum sentence for this offence is fifteen years' imprisonment.
(iii) Between 23 May and 5 June 2019, in Spain, France and other unidentified places, the Requested Person conspired with others to import 391kg of methamphetamine into Great Britain. I refer to this as Offence 3. The drugs in question were intercepted in France on 5 June 2019. The Requested Person's role in this conspiracy is particularised to have been “organising transport and supervising on the territory of Spain the packing of the drugs and their hiding in pallets with door, the delivery of the drugs to the place of loading as well as their loading onto a trailer of a truck.” The AW specifies that the maximum sentence for this offence is twelve years' imprisonment.
The Appellant came to the UK in 1998.
The Appellant was arrested on 11 November 2021. He was initially remanded in custody but released on conditional bail on 18 November 2022. The Respondent forwarded supplementary information on 4 January 2022 (“the General SI”). There was also the Respondent's response dated 28 February 2022 to the Appellant's request to be interviewed in the UK (“the Section 21B response”).
The General SI and the Section 21B response
In terms of the Appellant's role within the organised crime group (“OCG”), the General SI provides (at Answer B) as follows:
“Information gathered in the course of the investigation shows that [the Appellant] took direct action in Germany and Spain. In addition, a number of contacts and arrangements were made via telephone and the internet. As part of the group, [the Appellant] participated in meetings related to the purchase of drugs, was in contact with persons from South America-Colombia (with one of them he was [identified] on 30 June 2019 during a police check in the town of Vigo in Spain), who were probably involved in the delivery of...
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