Jacek Litwinczuk v The Circuit Court in Szczecin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 18 October 2019 |
| Neutral Citation | [2019] EWHC 2745 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/778/2019 |
| Date | 18 October 2019 |
[2019] EWHC 2745 (Admin)
Mr Justice Julian Knowles
Case No: CO/778/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Williams (instructed by Kaim Todner) for the Appellant
Tom Hoskins (instructed by CPS) for the Respondent
Hearing dates: 3 October 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
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The Honourable
Introduction
This is an appeal by the Appellant, Jacek Litwinczuk, against the order for his extradition to Poland made pursuant to s 21A(5) of Extradition Act 2003 ( EA 2003) by Deputy Senior District Judge Ikram on 20 January 2019.
The European arrest warrant (EAW) is an accusation warrant. It was issued on 26 February 2018. The offence described is an attempt to defraud Sebastian Jarzab of 53,220 zlotys by sending false emails.
Extradition was resisted below on a number of grounds, but only two are now relevant:
a. Firstly, the Appellant appeals with the permission of Sir Wyn Williams sitting as a High Court judge against the judge's decision that his extradition is not barred under s 12A (absence of decision to charge and try).
b. Second, he renews his application for permission to appeal against the judge's decision that extradition is not barred under s 21A of the EA 2003 read with Article 6. It is said that there is a risk of political interference with the judiciary at the court which will try the Appellant if he is extradited: cf Lis v Regional Court in Warsaw [2018] EWHC 2848 (Admin).
Before considering the parties' rival submissions it is convenient first to set out the statutory framework.
The legal framework
Section 12A
Section 12A of the EA 2003 is entitled ‘Absence of prosecution decision’ and provides:
“(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—
(a) it appears to the appropriate judge that there are reasonable grounds for believing that—
(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii) the person's absence from the category 1 territory is not the sole reason for that failure,
and
(b) those representing the category 1 territory do not prove that —
(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.
(2) In this section “to charge” and “to try”, in relation to a person and an extradition offence, mean—
(a) to charge the person with the offence in the category 1 territory, and
(b) to try the person for the offence in the category 1 territory.”
This section is not wholly straightforward. It has been considered in a number of cases including, most extensively, in Kandola v Generalstaatwaltschaft Frankfurt, Germany [2015] 1 WLR 5097, Puceviciene v Lithuanian Judicial Authority [2016] 1 WLR 4937, and Doci v The Court of Brescia, Italy [2016] EWHC 2100 (Admin). The case law can be summarised as follows:
a. In Carpenter v Pre-Trial Investigation Court Milan, Italy [2019] EWHC 211 (Admin), [1, 8] the Divisional Court (Hickinbottom LJ and Popplewell J) said that s 12A is concerned with the necessity for requesting judicial authorities from Category 1 territory EU member states to have made sufficient progress in prosecution of an ‘accused’ person before that person may be extradited under an EAW; its purpose is to ensure that individuals are tried expeditiously following their surrender.
b. The application of s 12A involves two distinct stages. At the first stage, which involves both subsection 1(a)(i) and (ii), the judge is concerned with whether there are reasonable grounds for believing that one or both of the two decisions, the decision to charge or the decision to try, has not been taken, and if so whether the person's absence from the foreign territory is not the sole reason for that failure. If there are such reasonable grounds for belief and the decision not to charge or try has not been made for the sole reason that the requested party is absent from the territory concerned, the judge must move to the second stage required by subsection 1(b). It is then for the issuing judicial authority to prove to the criminal standard that a decision has been made to charge and to try, or if not that the sole reason why not is the requested person's absence from the relevant territory: see Kandola, supra, [28] and [29].
c. At the first stage the default position is that the two decisions have been taken. It is only if the defendant raises a challenge that there has been no relevant decision that the question arises, and it must be based on something more than mere assertion. It does not involve proof on a balance of probabilities but cannot be based on simple assertion or a fanciful view or ‘feeling’: Ibid, [30].
d. If it is appropriate to embark upon the first stage, it may be clear from the warrant itself, read as a whole, that the appropriate authorities have taken or have not taken the two decisions. If the matter is clear from the terms of the warrant as a whole that the decisions have been taken, the district judge should look no further in relation to that point ([31]). That guidance was reiterated in Puceviciene, supra, [51].
e. However, if a defendant makes a challenge under s 12A and it is unclear from the warrant itself whether decisions have been taken to charge and try, the district judge is entitled to consider extraneous evidence. It is up to the requested person to advance sufficiently cogent evidence to raise a case to the standard indicated above. However, evidence should not be permitted to throw doubt on a clear statement in the warrant that the two decisions have, in fact, been made. Furthermore, elaborate expert evidence on what, under the relevant domestic law, might constitute a ‘decision to charge’ or a ‘decision to try’ is not to be encouraged. At the first stage (ie, the ‘reasonable grounds’ stage), it is neither appropriate nor necessary for the district judge to make or direct inquiries of the judicial authority as to whether decisions to charge or try the requested person have been made. That is because it is for the requested person to satisfy the district judge that there are ‘reasonable grounds for believing’ that at least one of the two decisions has not been made. Likewise, it is not appropriate or necessary for the district judge at the ‘reasonable grounds for believing’ stage to cause any inquiry to be made of the judicial authority as to the reason for the absence of either such decision. That is because, at this first stage, it is also for the requested person to show that there are reasonable grounds for believing that the failure to take whichever decision is missing is not solely due to the requested person's absence from the category 1 territory: Kandola, supra, [32].
Further helpful guidance on the application of s 12A is to be found in the judgment of Hamblen LJ in Fox v Public Prosecutor's Office of Frankfurt am Main, Germany [2017] EWHC 3396 (Admin), [12]–[17].
“12. The purpose for which section 12A was introduced was addressed by the Divisional Court in the leading case of Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862, [2016] 1 WLR 4937 in the judgment of Lord Thomas CJ at [73]:
‘73. … The mischief at which the section is directed is the possibility of a person being surrendered and then languishing in custody whilst the alleged crime continued to be the subject of lengthy investigation without decision to charge and try having been made. It was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction. The application of the provisions of section 12A secures that the requesting judicial authority will be in a position to get on immediately with the next step in its prosecution process as soon as the requested person is surrendered. The purpose of section 12A is served by confining it to the issues it actually raises.’
13. The general approach to the interpretation of section 12A was considered in Puceviciene at [11] by reference to the decision of the Divisional Court in Kandola v Generalstaatwaltschaft Frankfurt, Germany, Droma v State Prosecutor Nurnburg-Furth, Bavaria, Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097, it being stated as follows:
‘11. The background to section 12A is helpfully set out in paras 17–25. The Explanatory Memorandum to the Act which inserted section 12A is quoted to show that the concepts of “decision to charge” and “decision to try” in section 12A need a “cosmopolitan” interpretation, that is to say one which accommodates and reflects the criminal procedures of other countries, rather than those in the UK. Such an interpretation would avoid emplacing significant but unintended barriers to extradition on a speedy basis, while still respecting the purpose of section 12A, to
‘ensure that a case is sufficiently advanced in the issuing state (that is, there is a clear intention to bring the person to trial) before extradition can occur, so that people do not spend potentially long periods in pre-trials detention following their extradition, whilst the issuing state continues to investigate the case.’
14. In K...
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