Harazin v HM Advocate

JurisdictionScotland
JudgeLords Kingarth,Bonomy,Emslie
Judgment Date24 June 2010
Docket NumberAppeal No: XC225/10
CourtHigh Court of Justiciary
Date24 June 2010

Neutral Citation: [2010] Scot HC HCJAC 65

Scottish High Court of Justiciary

Judges: Lords Kingarth, Bonomy and Emslie

Appeal No: XC225/10

Harazin
and
HM Advocate

Appearances: Govier (instructed by Adams Whyte) for H; Poole (instructed by the Crown Agent) for HM Advocate.

Issue: Whether the EAW contained all of the relevant information, including a reference to all warrants and judicial proceedings and the identification of extradition offences.

Facts: On 18 November 2008, the District Court at Kielsa, Poland issued an EAW for H to attend trial for charges of theft, embezzlement and/or fraud. The EAW was implemented on 29 January 2010 by the sheriff at Edinburgh. On 4 March 2010, H lodged a Note of Appeal challenging the sheriff's determination on 3 grounds: the warrant did not contain particulars of ‘any other warrant’ issued in Poland for his arrest; failed to specify conduct that constituted an offence under Scottish law; and that extradition would not be compatible with H's Convention rights.

Judgment:

Lord Bonomy (for the Court):

1. On 29 January 2010 the sheriff at Edinburgh ordered the extradition of the appellant to the Republic of Poland. He did so in implementation of a European Arrest Warrant (EAW) issued on 18 November 2008 by a judge at the District Court at Kielsa, Poland.

2. On 4 March 2010 the appellant lodged a Note of Appeal in terms of s26(1) of the Extradition Act 2003 (Act). He challenged the sheriff's determination on 3 grounds: (a) the warrant failed to conform with the requirements of subs (2) and (6) of s2 of the Act in that it did not contain particulars of ‘any other warrant’ issued in Poland for the appellant's arrest; (b) the warrant failed to conform to requirements of s65(3) of the Act in that it failed to specify in respect of each of 7 offences of which the appellant was convicted conduct that constituted an offence under the law of Scotland; and (c) extradition would not be compatible with the appellant's Convention rights in terms of s21(1) of the Act in that he would face a real risk of being subjected while imprisoned in Poland to treatment contrary to the terms of Art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In making findings to the contrary of each of these propositions the sheriff had erred; had the sheriff decided these matters as he ought to have, he would have been bound to discharge the appellant; the court should accordingly allow the appeal and order the appellant's discharge in accordance with s27 of the Act. In effect success on any 1 of the 3 grounds would result in the appellant being discharged relative to each affected offence.

3. The background to the case is set out by the sheriff in para 9 of his report as follows:

Before dealing with the charges individually, I should set out the general background which the Appellant described in evidence. In summary he indicated that in 1997 he had leased a farm on a 15 year lease. According to him there was then in existence a government scheme whereby farmland which had been unused for a period of time was leased at an advantageous rate to young farmers. Cheap loans were also available in relation to stocking and equipping these farms. In terms of the Appellant's evidence, the law changed in 2001 or 2002, and the previous owner of the farm was able to reclaim it as part of the reprivatisation of the land. According to the Appellant, some time in 2003 he was put off the farm, and he had to leave everything behind. The Appellant also testified that in terms of the original scheme, a tenant could buy a farm after 1 year had elapsed, although the period was later changed to 3 years. According to the Appellant, an initial request which he had made to purchase the farm which he tenanted was caught out by this change in the law. After 3 years, he had made a second request to purchase the farm, but was told that he wasn't able to buy the whole farm, certain parts of it were not for sale any more. In relation to this background, the charges themselves, in particular charges III.1 and V, support the suggestion that the Appellant did acquire the tenancy of a farm, possibly along with another individual, Marek Zieleznik, and no doubt for whatever reason that tenancy did not end well.

4. In relation to the third ground of appeal Mr Govier, counsel for the appellant, acknowledged that, in light of the decisions of this Court in Engler v The Lord Advocate[2010] Extradition LR 304 and Kropiwnicki v The Lord Advocate[2010] Extradition LR 307, it was not open to the appellant to invite this Court as composed on this occasion to allow the appeal on this ground. He also made no motion to remit the case to a full bench of the Court. His understanding was that special leave was to be sought from the Supreme Court in relation to a similar ground of appeal in the case of Kropiwnicki. He therefore maintained, rather than abandoned, that ground in case Kropiwnicki should appeal successfully. We noted his position and heard no further argument on that ground.

5. The arguments advanced by Mr Govier involved consideration of the detailed terms of the EAW. The EAW bore to be a Part 1 warrant, that is a warrant to which Part I of the Act applies; in this instance the Republic of Poland is the designated category 1 territory, to which s2 of the Act applies. The provisions of s2 so far as relevant to this case are as follows:

(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 subs (3) and the information referred to in subs (4), or

(b) the statement referred to in subs (5) and the information referred to in subs (6). …

(5) The statement is one that —

(a) the person in respect of whom the Part 1 warrant is issued [has been convicted] Words substituted by the Police and Justice Act 2006 c.48 Sch. 13(1) para 1(1) (January 15, 2007) of an offence specified in a warrant by a court in a 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...

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