Kamil Krajewski v Circuit Court of Torun, Poland (First Respondent) Regional Court of Bydgoszvz, Poland (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeney,Lord Justice Jackson |
| Judgment Date | 20 April 2011 |
| Neutral Citation | [2011] EWHC 1068 (QB) |
| Date | 20 April 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/7333/2010 & CO/11922/2010 |
[2011] EWHC 1068 (QB)
IN THE ADMINISTRATIVE COURT
HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Mr Justice Sweeney
Case No: CO/7333/2010 & CO/11922/2010
and
Mr Krajewski appeared in person
Miss Mary Westcott (instructed by Crown Prosecution Service) for the Respondents
Hearing dates: 1 st March 2011
Introduction
The Appellant, who is now aged 35, is a Polish citizen. He first came to this country on 24 July 2005. He appeals, under the provisions of section 26 of the Extradition Act 2003 ("the Act"), against two orders, each made under section 21(3) of the Act in the City of Westminster Magistrates' Court, that he be extradited to Poland (a Category 1 territory), as follows:-
i) An order made by Senior District Judge Workman on 29 June 2010, following an uncontested hearing during which the Appellant was represented by the Duty Solicitor, in connection with an European Arrest Warrant ("EAW") issued by the Circuit Court of Torun on 5 May 2010, and certified by the Serious Organised Crime Agency ("SOCA") on 8 June 2010, in respect of:-
a) An offence of fraud in relation to property of high value alleged to have been committed in Bydgoszcz and Torun in the period from 24 September 2001 to 27 November 2002 – for which the appellant was sought for prosecution.
b) An offence of fraud committed in Grudziadz, Inowroclaw, Plock and Wlocklawek in the period from 8 February 2002 to 27 November 2002 and in respect of which the appellant was convicted and sentenced to 2 years' imprisonment – for which he was sought in order that he serve a remaining balance of 1 year 8 months and 21 days' imprisonment, as ordered by the District Court of Wloclawek on 12 July 2006.
ii) An order made by District Judge Tubbs on 11 November 2010, following a contested hearing on 27 September 2010 during which the Appellant represented himself, in connection with an EAW issued by the Regional Court of Bydgoszcz on 29 July 2009, and certified by SOCA on 6 July 2010, in respect of:-
a) An offence of persistently neglecting his duties concerning the employment legislation and social insurance, alleged to have been committed in the period from June 2003 to August 2004 – for which the appellant was sought for prosecution.
b) An offence of appropriating entrusted property ("swindling"), alleged to have been committed on 19 August 2004 – for which the appellant was also sought for prosecution.
There is a preliminary issue in relation to the appeal against the uncontested order made on 29 June 2010, namely as to whether the Appellant (who now represents himself in both the appeals) complied with the mandatory provisions of section 26(4) of the Act, CPR Part 52.2, and paragraph 22.6A(3)(a) of the Practice Direction to CPR Part 52 by serving a notice of appeal on the Crown Prosecution Service ("CPS"), which has represented the First Respondent throughout, within the seven day period thereby prescribed.
Notwithstanding the preliminary issue, the court heard argument de bene esse in relation to the appeal against the order made on 29 June 2010, as to which the Appellant advanced two grounds of appeal, namely that:-
i) Neither of the offences in the EAW issued on 5 May 2010 were extradition offences as defined in the Act.
ii) He was convicted of the second offence in absentia, and thus should have been discharged under the provisions of s.20(7) of the Act.
As well as the two grounds advanced by the Appellant at the hearing, the papers before the court include six additional grounds of appeal in relation to the order made on 29 June 2010, namely that:-
i) Extradition was barred by reason of the rule against double jeopardy.
ii) Extradition was unjust and/or oppressive via the passage of time.
iii) Extradition was incompatible with the appellant's human rights – in particular those under Articles 3, 6 and 8 of the European Convention.
iv) Extradition was unjust and/or oppressive by reason of the appellant's mental condition.
v) The proceedings constituted an abuse of process.
vi) Article 4 (6) of the Framework Decision applied so as to bar extradition.
As to the appeal against the contested order made on 11 November 2010, the Appellant advanced three grounds of appeal at the hearing, namely that the learned Judge was wrong to conclude that:-
i) The alleged offence of persistently neglecting his duties concerning the employment legislation and social insurance was an extradition offence as defined in the Act.
ii) The Appellant was aware of the allegation of appropriating entrusted property before he left Poland and that thus extradition was not barred by the passage of time.
iii) Article 4(6) of the Framework Decision did not apply.
As well as the three grounds advanced by the Appellant at the hearing, the papers before the court include three additional grounds of appeal against the order made on 11 November 2010, namely that the learned Judge was also wrong to conclude that:-
i) The Appellant would receive a fair trial in Poland
ii) There were no substantial grounds to believe that there was a real risk that the appellant's Article 3 and 6 rights would be breached after his return to Poland.
iii) Extradition was compatible with Article 8
The broad legal background
As Poland is a Category 1 territory, Part 1 of the Act applies.
The aim of the Council Framework Decision that established the EAW system was to create a simpler, quicker, more effective procedure, founded in Member States' confidence in the integrity of each other's legal and judicial systems – see, for example, the speeches of Lord Bingham in The Office of the King's Prosecutor v Armas [2006] 2 AC 1 and Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31.
Section 27 of the Act provides that:
"(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
As to section 27(4)(a) it is, of course, normally incumbent on those involved in litigation in first instance courts or tribunals to advance their whole case at that stage, including all the evidence on which they want or need to rely.
In giving the judgment of the court in The Szombathely City Court & Others v Fenyvesi & Fenyvesi [2009] 4 AER 324, which was concerned with the identically worded s.29(4)(a) of the Act, Sir Anthony May, President said:_
"32. In our judgement, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different, resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.
…
35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the District Judge, and which is tendered to try to repair holes which should have been plugged before the District Judge, simply because it has a human rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."
In Kalniets v District Court of Ogre [2009] EWHC 534 (Admin), which was followed in Sondy v Crown Prosecution Service [2010] EWHC 108 (Admin), this Court ruled that the approach to new evidence enunciated in Fenyvesi should also apply to s.27(4)(a) of the Act. In Sondy the court further ruled that if an appellant criticises those who represented him during the extradition hearing, for example as part of seeking to place new evidence before the court, he must formally waive privilege and invite his former lawyers to deal with the allegations against them. The court pointed out that...
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