Haladus v Regional Court of Law in Czestochowa (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 18 January 2017 |
| Neutral Citation | [2017] EWHC 311 (Admin) |
| Date | 18 January 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4125/2015, CO/1538/2016 |
[2017] EWHC 311 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Garnham
CO/4125/2015, CO/1538/2016
Mr Graeme L Hall (instructed by McMillan Williams Solicitors in Haladus and Armstrong Solicitors in Minorczyk) appeared on behalf of the Appellant
Ms Saoirse Townshend (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
(Approved))
Introduction:
The common issue in these two linked cases, the cases of Minorczyk and Haladus, is whether it is a breach of the rule against double jeopardy and/or an abuse of process to order a requested person to surrender to serve an aggregate sentence for offences for which they have already been finally convicted, in circumstances where the aggregate sentence covers at least one sentence which the requested person has already served.
The case of Minorczyk, which also raises an Article 8 issue, was listed for hearing alongside that of Haladus, and I heard argument on the two together earlier today. In each case, the appellant was represented by Mr Graham Hall and the respondent by Ms Saoirse Townshend. I am grateful for their helpful submissions, written and oral. I give this judgment ex tempore shortly after the conclusion of the arguments.
The facts in Minorczyk :
Mr Minorczyk is the subject of a conviction European Arrest Warrant, or "EAW", issued by the Provincial Court in Lublin in Poland on 23 May 2006 and certified by the NCA on 3 June 2015. The EAW relates to the appellant's conviction on 24 September 2004 for a series of burglaries committed on various dates in 1998, described in the EAW as offences 1 to 7. The appellant was sentenced to 5 years' imprisonment, of which 1 year 11 months remains to be served.
Further information was provided on 14 January 2016 which confirms that the offences arise from two cases. Case one, which has the reference number 80/99, concerns offence number 7 in the EAW and related to the burglary of a summer cottage in April 1998. For that offence the appellant was sentenced on 21 May 1999 to two years' imprisonment. He served that sentence and was subsequently released. Following release he was prosecuted for the second case, which had reference number 344/00, which concerned all the other offences in the EAW. In September 2002 he was sentenced for those offences to two years and three months' imprisonment.
The further information goes on to indicate that because the offences under both cases were committed before judgment was pronounced in the first, there were grounds to issue an "aggregate order". Further proceedings were commenced on 24 September 2004 and an aggregate order was issued. That order was made final on 5 October 2004. That judgment:
"… combined two sentences: the sentence of 2 years under case reference 80/99 and the aggregate penalty of 4 years and 3 months under 344/00 … by means of the hearing above aggregate sentence [the Appellant] was sentenced to a total of 5 years imprisonment and an aggregate fine."
It is on that aggregate order that the EAW is based.
The extradition hearing in Mr Minorczyk's case took place on 16 February 2016 before District Judge Brennan at Westminster. In a judgment dated 14 March 2016 the district judge dismissed the appellant's challenge and ordered surrender. On 22 October 2016 Holroyde J granted permission to appeal on the grounds of Article 8 ECHR and section 21, and abuse of process. Accordingly, the appellant advances two grounds of appeal before me.
First, he says that the district judge was wrong to find that the outstanding sentence applies only to offences 2 to 6. The outstanding sentence, he says, applies to offence 7 as well. He argues that since the appellant has already served the sentence for that offence, his extradition is an abuse of process or falls foul of the rule against double jeopardy. The second ground of appeal is advanced under section 21 of the 2003 Act. Mr Hall says that the district judge was wrong to conclude that the appellant's extradition would not be a disproportionate interference with his and his family's private and family life. I will turn to address the Article 8 issue towards the conclusion of this judgment.
The facts of Mr Haladus's case:
The extradition of Mr Haladus is sought by a judge of the Regional Court of Law in Czestochowa, pursuant to an EAW issued on 22 January 2015 and certified by the NCA on 18 April 2015. The EAW explains that the appellant's extradition is sought for him to serve an aggregate sentence imposed on 26 March 2013 of nine years' imprisonment. Of that sentence, two years six months one day remains to be served.
As set out in box E of the EAW, the aggregate sentence arises from three different judgments. The first judgment concerns an allegation of robbery on 27 July 2000. The second judgment dated 28 December 2005 relates to two offences, one that the appellant took part in drug trafficking as part of an organised criminal group, the second alleging that the appellant was involved in a group which sold amphetamines. The third judgment is dated 21 June 2010 and concerns an allegation that the appellant was involved in putting counterfeit currency into circulation.
Further information in relation to this EAW was provided in a letter from the regional court. From that document it emerges that in relation to the first judgment, the robbery in 2000, the appellant was sentenced to five years' imprisonment. Pursuant to the second judgment he was sentenced to 18 months' imprisonment for the first drugs offence and 2 years' imprisonment for the second. In relation to the third judgment, the counterfeiting which occurred from 1998 onwards, he was sentenced to two years six months' imprisonment. It is to be noted that the total of all those sentences was eleven years.
The further information also deals with the aggregation hearing which took place on 26 March 2013. It is to be noted that the appellant was represented by counsel on that occasion, and that counsel appealed the original aggregated sentence of nine years without success. I shall return to that further information later in this judgment.
The extradition hearing in Mr Haladus's case took place on 12 August 2015 before District Judge Zani. Judgment was given 12 days later. At the hearing, the appellant challenged the request on the grounds of a failure to comply with section 14 of the Extradition Act (passage of time) and section 21 (Article 8 ECHR). The judge rejected both grounds.
An appeal was launched on 28 August 2015. Permission was originally sought on the two grounds advanced before the district judge, but additional grounds were added in the perfected grounds of appeal. Those grounds included an allegation of abuse of process. Permission was refused on the papers by Supperstone J on 28 September 2016. A renewal notice was considered by Collins J on 4 November 2016. Granting permission, Collins J said this:
"The argument in this case is that the appellant has served two of the sentences imposed for the offences and the Polish system is such that there has been an aggregation which has reduced the totality from 10 1/2 to 9 years. The argument is that this is an abuse of process as the appellant will be serving what is left of the aggregate sentence and therefore will be serving in part a sentence he has already served. That is a hopeless argument. The Polish system is to aggregate. The result is a benefit to the Requested Person. There is therefore no abuse of process. The argument that there is a breach of art 3(2) of the Framework decision because there has been a final sentence and service of the sentence I do not accept. One has to look at the total sentence. I would not have granted permission. But Holroyde J. in Minorczyk v Poland CO/1538/2016 has granted permission on this point. Mr Hall submits it would be unfair to the appellant if he were in a worse position. For that reason alone I grant permission."
The statutory scheme:
It is convenient here to set out the relevant provisions of statute and the conventions. Section 12 of the 2003 Act provides as follows:
"A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption —
(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;
(b) that the person were charged with the extradition offence in that part of the United Kingdom."
Article 3(2) of the Framework Decision provides that:
"The judicial authority of the Member State of execution […] shall refuse to execute the European arrest warrant in the following cases:
…
2. If the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of same acts provided that, where there has been sentence, the sentence has been served or may no longer be executed under the law of the sentencing Member State."
Article 50 of the Charter of Fundamental Rights provides:
"No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted...
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