Jakub Stopyra v District Court of Lublin, Poland Stopyra

JurisdictionEngland & Wales
JudgePresident of the Queen's Bench Division
Judgment Date28 June 2012
Neutral Citation[2012] EWHC 1787 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date28 June 2012
Docket NumberCase No: CO/8917/2011, CO/2966/2012 & CO/9524/2011

[2012] EWHC 1787 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

President of the Queen's Bench Division

and

Mr Justice Haddon-Cave

Case No: CO/8917/2011, CO/2966/2012 & CO/9524/2011

Between:
Jakub Stopyra
Appellant
and
District Court of Lublin, Poland Stopyra
Respondent
And Between
The Regional Court of Ostoleka, Poland Debreceni
Appellant
and
Hajdu-Bihar County Court, Hungary
Respondent

Hearing dates: 23 March 2012 and 27 April 2012

President of the Queen's Bench Division

This is the judgment of the court.

Introduction

1

These appeals from the City of Westminster Magistrates' Court were heard together because they raised, apart from certain issues specific to the cases themselves, broadly similar issues relating to the delays arising from the way in which legal assistance is provided in European Arrest Warrant (EAW) cases under Part I of the Extradition Act 2003 (the 2003 Act). At the initial hearing of the appeals, it became apparent that the court did not have the necessary evidence as to the reasons for the delays. The court is grateful to the Ministry of Justice and to the Legal Services Commission (LSC) for the evidence they adduced.

2

It is necessary for us first to set out the factual background to each of the cases.

I. The facts in Stopyra

(i) The issue of the first EAW

3

On 15 March 2011 Judge Moralowska of the District Court of Lublin, Poland issued an EAW for the arrest and surrender of the appellant Mr Stopyra to the Polish Judicial Authority as a convicted person to serve four custodial sentences totalling four years and 11 months. The sentences were:

i) One year and two months for burglary and criminal damage of which he was convicted on 12 December 2006;

ii) One year and three months for burglary of which he was convicted on 30 October 2006;

iii) One year and six months for criminal damage, attempted burglary and two counts of theft of which he was convicted on 26 February 2007; and

iv) One year for possession of drugs of which he was convicted on 5 May 2005.

The EAW was duly certified by the Serious and Organised Crime Agency (SOCA). Mr Stopyra was arrested at Southport Police Station on 14 May 2011.

(ii) 11 week delay in granting of legal aid

4

In accordance with the usual procedure, Mr Stopyra was brought to the City of Westminster Magistrates' Court. Although the initial hearing was on 16 May 2011, legal aid was not granted until 11 August 2011. What happened can be summarised as follows:

i) At the initial hearing on 16 May 2011 Mr Stopyra asked that Kaim Todner represent him. As the application was made after 4 pm, it was deemed to have been made on 17 May 2011.

ii) Under what is known as a service level agreement, Her Majesty's Courts and Tribunal Service (HMCTS) administer the initial processing of legal aid for the LSC. The agreement provides that legal aid applications should be processed within a target of six working days from the date of receipt. The HMCTS staff at the City of Westminster Magistrates' Court had a backlog of legal aid applications at the time. This meant that the application was not processed until 24 May 2011 – the sixth working day.

iii) On 24 May 2011 the HMCTS staff carried out a full means assessment. The forms submitted made clear that Mr Stopyra had remained in custody following his arrest. Mr Stopyra had truthfully answered that he earned £300 a week after tax. He was assessed as having a gross annual household income of £33,982 from his employment, his partner's employment and child benefit and tax credit. As he was an individual whose income was above £22,325 he was ineligible for criminal legal aid in the Magistrates' Court. Although his income ceased when remanded into custody, the way in which the system operates is that the LSC assumes that, even though an individual has been remanded into custody, he is still earning an income. The presumption is that employment or self employment continues as the individual may retain his position or be suspended on pay until a verdict is determined; that might be the case if an individual subsequently successfully applies to be remanded on bail conditions. In those circumstances, therefore, and properly following the policies laid down by the LSC, the HMCTS staff at the Magistrates' Court rejected his application.

iv) On 2 June 2011 Mr Stopyra made an application under a LSC scheme known as the "Hardship Review". That review permits those who have failed the means test to ask for legal aid through such a review. The application was submitted and received by the National Courts Team at the LSC's Liverpool office on 7 June 2011.

v) The application was returned to Kaim Todner because the forms applicable to a Hardship Review were incomplete. It was noted that Mr Stopyra should have provided evidence of income; that because he was asking for a change in financial circumstances to be taken into account as he was in custody, a fresh application for legal aid had to be completed as well as the provision of evidence of his income. The LSC also considered that the breakdown given by solicitors of their estimated costs was insufficient in that they had stated the number of hours required without detailing what the work related to. The application was accordingly rejected.

vi) On 23 June 2011 Mr Stopyra completed a fresh application for legal aid and on 27 June 2011 it was sent by Kaim Todner to the HMCTS team at the City of Westminster Magistrates' Court. The Hardship Review application was not included. After checking with the LSC, a member of the HMCTS team at the Magistrates' Court asked Kaim Todner to complete a new form.

vii) On 5 July 2011 Mr Stopyra's application for legal aid was re-submitted with a Hardship Review application. This was sent to the LSC National Courts Team on 8 July 2011.

viii) On 13 July 2011 the LSC wrote to Kaim Todner to explain what additional evidence was required so that the LSC could assess the application. The letter explained that Mr Stopyra should provide a letter from his employers stating the date that he started working for them and he should provide bank statements for the last three months before the original legal aid submission of 16 May 2011. The application was returned to Kaim Todner so that they could re-submit it with the additional evidence. It was the LSC's view that this information was required to verify that Mr Stopyra had lost his job since the time of his original application and that he had only received income for a two week period as indicated in his Hardship Review application.

ix) On 28 July 2011 Kaim Todner sent a letter to the LSC with an e-mail from Mr Stopyra's employer which confirmed when his employment started and how long he had worked. The LSC explained on 2 August 2011 to Kaim Todner that in order for them to act on the information in that letter, the LSC needed the Hardship Review application so that it could carry out the Hardship Review.

x) On 5 August 2011 all of the relevant information and supporting evidence was received by the LSC for a Hardship Review. That application was assessed on 5 August 2011 and a message was sent to the HMCTS team at the City of Westminster Magistrates' Court to issue a backdated representation order.

xi) On 11 August 2011 Kaim Todner received Mr Stopyra's representation order.

5

District Judge Evans (who did not have the benefit of the evidence as to why the delays had occurred which was provided to us) rightly commented that it was:

"deeply depressing that any requested person, particularly one remanded in custody, is not able to have the immediate benefit of legal aid. These delays are extremely expensive and until legal aid is granted no work is done on behalf of the requested person and during that time the UK taxpayer has to pay for his accommodation at HMP Wandsworth. There are costs associated with courts, interpreters and the CPS at each court hearing. The LSC might be protecting its budget (but the administrative costs of processing and then rejecting these applications are not inconsequential) but more importantly it is doing so to the obvious detriment of other budgets. Anyone looking at the issue holistically would immediately see that to grant legal aid in all extradition cases at the first hearing would save tens of thousands of pounds over a year. It is troubling that this requested person had to wait over 11 weeks to obtain his legal representation order."

(iii) The change of representation

6

The judge directed the final hearing should proceed on 15 August 2011, exactly 13 weeks after the initial hearing, but only 2 working days after the grant of legal aid. On that day two sets of lawyers attended the hearing, Mr Katz of Kaim Todner and Miss Bhatt who also appeared before us at the first hearing and led by Mr Mark Summers at the second hearing. She was instructed by Pollecoff, solicitors. She explained that Mr Stopyra wanted to change solicitors, as he claimed to have lost confidence in Kaim Todner. The judge, applying Regulation 16 of the Criminal Defence Service General Regulations 2001 and the guidance given on that in Ashgar Khan and other cases, agreed to the transfer. As the judge explained in his judgment, this was a pragmatic decision.

(iv) The evidence on the extradition hearing for the first EAW

7

the judge understood that Miss Bhatt, on behalf of Mr Stopyra...

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