Kociukow v District Court of Bialystok III Penal Division
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Jack:,Lady Justice Hallett:,Lady Justice Hallett,MR JUSTICE JACK |
| Judgment Date | 27 January 2006 |
| Neutral Citation | [2006] EWHC 56 (Admin) |
| Docket Number | Case No: CO/315/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2006 |
[2006] EWHC 56 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lady Justice Hallett Dbe
The Hon Mr Justice Jack
Case No: CO/315/2006
Mr Sam Robinson (instructed by Clapham & Co) for the Appellant
Mr Mark Weekes (instructed by Crown Prosecution Service) for the Respondent
This is an appeal against an order for extradition made under Part 1 of the Extradition Act 2003 following the issue of a European arrest warrant.
On 6 January 2006 District Judge Evans sitting at the Bow Street Magistrates Court ordered that the appellant, Krysztof Kociukow, should be extradited to Poland. Poland is a category 1 territory for the purposes of Part 1 of the Extradition Act 2003, having been designated by the Secretary of State pursuant to section 1 of the Act. Mr Kociukow appeals against that order as provided by section 26.
The extradition proceedings followed the issue of a European arrest warrant, dated 22 July 2005, by the District Court of Bialystok III, Penal Division, Poland, which was certified by the National Criminal Intelligence Service under section 2 of the Act on 15 December 2005 to be an appropriate judicial authority. The warrant was executed on 25 December. The offences in respect of which the warrant was issued were offences of attempted robbery and robbery alleged to have been committed by the appellant on 18 August 1999 in Bielsk Podlaski in Poland. The circumstances of the attempted robbery set out in the warrant were that the appellant ran into a stall with another person, brandishing a knife, with the intention of robbing a woman, Anna Jakubowska, but was prevented by her husband. Those of the robbery were that with another person the appellant hit a second woman, Teresa Niewinska, in the face with his hands and a knife, making her defenceless, and stole 2000 zlotys. The offences are each punishable with 15 years imprisonment.
Section 11 of the Act, titled 'Bars to extradition', required the judge to consider whether the appellant's extradition was barred by, among other matters, '(c) the passage of time'. Section 14 provides in relation to that:
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."
The judge held that it would not be unjust or oppressive to extradite the appellant by reason of the passage of time. The first ground of the appeal is that he was wrong to do so.
Having ruled against the appellant under section 11 the judge was required by section 21 to decide whether the appellant's 'extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998'. It was alleged on behalf of the appellant that his extradition would infringe his rights in two respects. First, it was alleged that extradition would infringe the appellant's right under Article 6 that the charges against him be heard within a reasonable time. Second, it was alleged that extradition would infringe his right to respect for his private and family life contrary to Article 8, in that he had lived in England for 6 years and had an English fiancée, Ms Sonia Johnson, whom he intended to marry and who was bearing his child. The judge ruled against the appellant on both those points. We were informed that the suggestion that the Ms Johnson was pregnant was based on a misunderstanding and was incorrect. We were however told that she was seriously ill and needed the appellant's support. The evidence as to her illness was somewhat unsatisfactory.
During the course of his submissions to us on behalf of the appellant Mr Sam Robinson accepted that the grounds of appeal based on Articles 6 and 8 could not succeed. He accepted that the 'reasonable time' within which Article 6 entitled an accused person to have a charge heard, began at the point when the person was officially alerted to the likelihood of criminal proceedings being brought against him: Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72. So the earliest date that the appellant could put forward here was 25 December 2005. He accepted that the balancing process which Article 8(2) required between the appellant's rights under Article 8 and, here, the need for the prevention of crime, must be adverse to the appellant: see Launder v United Kingdom (1998) 25 EHRR CD 67. That left the appellant's case in relation to 'the passage of time' under sections 11(c) and 14.
The origin of Part 1 of the Extradition Act 2003 is in part the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA). Two passages from the introduction to the Decision merit quoting in the context of the present case:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures." [From paragraph (5)]
"Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender." [Paragraph 8]
Article 3 of the Decision sets out grounds for mandatory non-execution of a European arrest warrant and Article 4 sets out optional grounds. The passage of time is neither a mandatory nor an optional ground.
The wording of section 14 of the 2003 Act closely follows that of section 11(3)(b) of the Extradition Act 1989, which in turn was derived from section 8(3) of the Fugitive Offenders Act 1967 and section 10 of the Fugitive Offenders...
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