Kortas v Regional Court in Bydgoszcz (Poland)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Blake |
| Judgment Date | 16 May 2017 |
| Neutral Citation | [2017] EWHC 1356 (Admin) |
| Docket Number | CO/4194/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 May 2017 |
[2017] EWHC 1356 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Burnett
Mr Justice Blake
CO/4194/2016
Mr Hugh Southey QC and Ms Emilie Pottle (instructed by Kaim Todner) appeared on behalf of the Appellant
Mr Mark Summers QC and Ms Florence Iveson (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
The appellant's contention in this extradition appeal is that Poland will not abide by its specialty obligations, with the result that he will serve a longer sentence than appropriate for the single offence for which his extradition has been ordered. There is an ancillary argument, for which permission to appeal was refused, that the appellant's extradition would involve a disproportionate interference with his right to private life guaranteed by Article 8 of the European Convention on Human Rights.
Specialty is the rule which provides that an extradited person will not be prosecuted for, or in a conviction case serve a sentence for, any offence which predated his surrender other than those for which he has been extradited. It is reflected in sections 11 and 17 of the Extradition Act 2003 and article 27 of the Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States 2002/584/JHA.
The question of specialty with respect to Poland was considered by this court in Brodziak v Poland [2013] EWHC 3394 (Admin). Richards LJ, giving the judgment of the court, expressed concerns that the evidence before the court regarding the way in which specialty was protected in Poland was not adequate. Nonetheless, applying the strong presumption that a fellow member of the European Union would abide by its international obligations, the court was unable to conclude that the evidence deployed before it supported the contention that Poland would not abide by those obligations.
The evidence that Poland might not do so was provided by Ewa Draga-Buchta, a Polish advocate. The essence of the argument advanced by Mr Southey QC on behalf of the appellant in this appeal, supported by further evidence from Ms Draga-Buchta, is that events have shown that the Polish authorities have failed to comply with their specialty obligations in at least two identifiable instances. On the appellant's behalf, Mr Southey submits that the position is therefore different from how it appeared in Brodziak, and on that account the appeal should be allowed.
For reasons which I will develop, I am satisfied that there is no substance in this ground of appeal.
The background
The appellant's extradition was requested by the Regional Court in Bydgoszcz, Poland to serve a single 12-month aggregated or merged sentence in respect of two convictions. The first conviction was for an offence of fraud committed in 1999, for which the appellant received a sentence of 10 months' detention. The second conviction was for driving a motorcycle whilst intoxicated in 2001, for which the appellant received a sentence of 8 months' detention. The sentences were merged into the 12-month aggregated sentence, but at first the whole of that sentence was conditionally suspended. The appellant failed to comply with the conditions of suspension. In August 2005, the sentence was activated and the appellant was called to prison in January 2006. He surrendered on that occasion but was released on compassionate health grounds on 23 February 2006. Subsequently, he was required to return to prison in November 2007 but failed to do so. A domestic warrant for his arrest was issued on 7 March 2008. At some time thereafter, the appellant left Poland and the evidence suggests that he arrived in the United Kingdom in 2009. He was, in those circumstances, a fugitive from justice in Poland.
The Polish authorities became aware that the appellant was probably in the United Kingdom in 2010, but obtained concrete evidence of his presence in Birmingham in 2012. On 11 March 2014, the European arrest warrant was issued. There was some delay in this jurisdiction in its certification by the National Crime Agency. That did not occur until 19 April 2016. It was executed on the same day.
The extradition hearing proceeded on 16 August 2016 before District Judge Blake sitting at Westminster Magistrates' Court. The district judge was not satisfied that the driving whilst intoxicated offence was one that attracted dual criminality. In short, that was because he did not have before him any readings indicating the alcohol level, and so was unable to determine whether the levels of alcohol in the appellant's system would have amounted to a crime when driving in the UK. The judicial authority accepted that the appellant should be discharged in respect of that offence. Although further information relating to the level of alcohol has been produced by the judicial authority, there is no appeal before us relating to that.
The district judge rejected the Article 8 argument advanced by the appellant. No specialty point was taken before the district judge. In the result, he ordered the appellant's extradition in respect of the fraud conviction alone.
It is in that way that the specialty argument arises. Unless the merged sentence is disaggregated, following the appellant's return to Poland he would be liable to serve the 12-month sentence rather than the 10-month sentence. It is clear that he will receive appropriate credit for the time he has already served.
Specialty
Section 11(1)(f) and section 11(3) of the 2003 Act provide that a requested person must be discharged if his extradition is barred by specialty, the meaning of which is set out in section 17. It is sufficient to set out a small part of section 17:
"(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.
(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if –
(a) the offence is one falling within subsection (3) …
[…]
(3) The offences are –
(a) the offence in respect of which the person was extradited …"
The United Kingdom has specialty arrangements with Poland through the application of article 27(2) of the Framework Decision, which provides that, subject to exceptions which are not material to this appeal:
"A person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered."
As is well recognised, there is a strong presumption that Member States will act in accordance with their international obligations with respect to specialty, with a concomitant need for strong evidence to displace that presumption: see paragraphs 46 to 49 of Brodziak and the cases there discussed.
Article 607e of the Polish criminal codes provides, in a translation found in Wiercinski v Poland [2008] EWHC 200 (Admin):
"1. A person surrendered in performance of a warrant cannot be prosecuted for offences other than those that formed the base for surrender or enforce the custodial sentence or other means involving deprivation of freedom imposed on that person for such offences.
2. The court that entered the absolute decision in the case can order enforcement of the penalty only for those offences, which formed the base for surrender of the wanted person."
That provision in the criminal code provides the foundation in Polish domestic law for observation of the rule of specialty.
Ms Draga-Buchta provided evidence in the Brodziak case which questioned whether a "merged penalty" would be "dissolved" because it would need "extraordinary proceedings" to achieve that end. It was that evidence, coupled with various responses from the Polish judicial authorities, which led the court to question whether specialty would be observed in the cases before it. It is apparent from the judgment of the court that it considered a number of the answers provided by the Polish authorities to be less than satisfactory.
It is apparent from the evidence of Ms Draga-Buchta herself, as well as communications from the Polish authorities, including a recent letter from the presiding judge of the court in Poland, that a sentence may be disaggregated pursuant to the provisions of article 597 of the Polish criminal code. In her report of 22 December 2016, Ms Draga-Buchta explained that this article is the legal basis for the court to act on its own motion to ensure compliance with specialty; in other words, it is the mechanism which enables it to do that which article 607 obliges it to do. She added that by virtue of articles 597 and 451, the person detained has "a right to submit an application for bringing this person for the hearing".
In her letter of 21 April 2017, the presiding judge says much the same thing:
"As far as article 597 of the code of criminal procedure is concerned […] if upon extradition the condition is imposed concerning the person extradited that formerly imposed penalties will be executed only to the extent of the offences for which the extradition has been granted, the court which has validly decided the case, shall issue in session a judgment, if...
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