Jaroslaw Borowski v Regional Court in Wloclawek Poland
| Jurisdiction | England & Wales |
| Judge | Sir John Thomas,Mr Justice Mitting |
| Judgment Date | 28 November 2012 |
| Neutral Citation | [2012] EWHC 3692 (Admin),[2012] EWHC 3568 (Admin) |
| Date | 28 November 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2655/2012,CO/3006/2012 |
[2012] EWHC 3568 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/3006/2012
Ms C Bramwell (instructed by Kaim Todner) appeared on behalf of the Appellant
Mr N Hearn (instructed by CPS) appeared on behalf of the Respondent
I refuse the application to adjourn. There are two warrants here. Of course, the conduct described in them is similar. Whether or not it overlaps is not a matter with which I am at present concerned but it seems to me that if it is possible to dispose of an appeal against one warrant then I should do so unless that causes irremediable prejudice to either the requesting state or the requested person, and I am satisfied that it does not.
(Further submissions by counsel)
An accusation warrant was issued against the appellant by a judge in the Regional Court in Wloclawek on 11 July 2011. It was certified by the Serious and Organised Crime Agency on 1 December 2011. The appellant was arrested the next day and brought before the Westminster Magistrates' Court. The final hearing of his extradition case took place on 16 February 2012. District Judge Arbuthnot issued her written judgment on 15 March 2012 and ordered the extradition of the appellant. He appealed in time to this court. The only issue in the notice of appeal was whether or not the second of three offences set out in the warrant was an extradition offence. It would have been recognised readily in England, and more readily in Northern Ireland, as a red diesel fraud and could have been charged in the United Kingdom either as conspiracy to defraud or as cheating the public revenue. It clearly was an extradition offence even though not in the Framework list.
Ms Bramwell, who appears for the appellant today, has abandoned that ground of appeal. She has sought leave to amend her notice of appeal, which I have granted, to contend that the warrant is nevertheless not valid because as a result of developments that have occurred since the hearing before District Judge Arbuthnot it is now clear that there is no intention to prosecute and, furthermore, that there is an abuse of process because the requesting authority seeks the extradition of the appellant in circumstances where another judicial authority in Poland, the Regional Court in Bielsko-Biala, has also requested the extradition of the appellant for offences that overlap those alleged in this warrant. The facts that give rise to that argument have arisen since the hearing before District Judge Arbuthnot. Accordingly, applying the well-known principle in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin) this is new evidence, it is a new argument and it is open to be raised on this appeal. It arises out of a second warrant issued by a judge in the District Court in Bielsko-Biala on 6 March 2012. That warrant was certified by the Serious and Organised Crime Agency on 31 April 2012, the appellant was arrested on it on 29 April 2012 and brought before the City of Westminster Magistrates' Court. A full hearing took place before District Judge Coleman, who handed down his decision on 19 November 2012, ordering the extradition of the appellant.
In broad terms, the appellant is wanted on both warrants for what would be identified in England as red diesel fraud; that is to say selling diesel that is fiscally favoured at a price and for a purpose where the beneficial fiscal regime does not apply: selling untaxed or lowly taxed diesel at a price as if it were fully taxed and for a purpose for which its use was not permitted. In Poland, that is said to be an offence not merely of fraud and perhaps of cheating but also participation in a criminal gang and money laundering. The stance of both Polish judicial authorities is that the conduct charged in the two warrants though similar is not in fact identical. In the first and second of the two charges alleged in both warrants it is contended by the requesting authorities that there is no overlap. It is conceded that in the third charges on both warrants there is an overlap. The appellant contends that the two charges are in fact identical so that the appellant's extradition is being sought on two warrants for the same offence.
Ms Bramwell makes her submissions on the basis of a decision of Keith J in Voros v The District Courts of Sopron, Gyor and Zalaegerszeg, Hungary [2012] EWHC 518 (Admin) and [2012] EWHC 1079 (Admin). In that case, Keith J was faced with warrants which it was accepted charged the same offence in relation to exactly the same conduct. His solution, faced with that problem, was to dismiss the appeal in respect of those charges which were not identical and allowed the appeal against one, but only one, of the parts of the warrants in respect of which the offences charged were identical. Accordingly, Keith J ordered the extradition of the appellant on the eight underlying charges which he actually faced and not the dozen or so contained in the four warrants. In that way he ensured that he was only extradited for the eight offences of which he actually stood charged.
That problem may or may not arise here. If the contention of the judicial authority is right then it will not arise in relation to the first and second charges on both warrants. It may or may not arise in relation to the third. That, however, is for the future. I have to determine whether or not Ms Bramwell's submission that the subsequent events demonstrate that there is no intention to prosecute the appellant on the charges on this European Arrest Warrant, or, alternatively, that it is an abuse of process to seek his extradition on both warrants.
Ms Bramwell's first submission, is, in effect, that the warrant must demonstrate an intention that the requesting judicial authority within the State from which the request is made must be the one who conducts the prosecution. Anything less will not do. She draws my attention to the response of the judge in the Wloclawek Court to requests from the CPS concerning the second warrant. The judge said this:
"1. It has been agreed between the Regional Prosecutor's Office in Wloclawek and the regional prosecutor's Office in Bielsko-Biala that the proceedings against [the appellant] will be combined.
2. After the proceedings are combined, the Regional Prosecutor's Office in Bielsko-Biala will have responsibility for the case.
3. In the case against [the appellant], one substantive decision will be made by the Regional Prosecutor's Office in Bielsko-Biala, their proceedings having a broader material scope.
4. [The appellant] is...
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