Kozlowski v District Court of Torun, Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] EWHC 1706 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 May 2012 |
| Docket Number | CO/6540/2011 |
[2012] EWHC 1706 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/6540/2011
Mr P Kiss-Wilson (instructed by Stephen Fidler & Co) appeared on behalf of the Claimant
Mr J Stansfield and Mr B Isaacs (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
The appellant is a Polish national who was arrested pursuant to an EAW in July 2011 and appeared before the City of Westminster Magistrates' Court on 5 July 2011. Following an uncontested hearing, the District Judge ordered the appellant's extradition. A notice of appeal, if it can be called that, was put in within time, but its validity is challenged on the grounds that it did not contain sufficient by way of grounds of appeal to constitute a notice. That issue is currently before the Supreme Court in a variety of cases.
The sole point now pursued in the appeal is that the extradition would fall foul of section 25 of the 2003 Act because the physical or mental condition of the person in respect of whom the Part I warrant is issued is such that it would be unjust or oppressive to extradite him. No such issue was raised before the District Judge.
The warrants seek the extradition of the appellant to face trial for an offence of robbery committed in April 2006 and for the serving of two now activated prison sentences: one for a term of 1 year for an attempted robbery committed in April 2002, the sentence in respect of which was activated in October 2007; and the second for driving whilst under the influence of alcohol, where the 6-month prison sentence was activated on the same occasion in 2007.
The appellant was represented before the District Judge by a solicitor who did refer to one aspect of the appellant's physical condition which was rightly regarded as no bar to his extradition.
The matter has something of a history before this court. It was first listed on 2 September 2011, then again before this court on 8 December 2011, where an adjournment was granted on the basis of concerns about the appellant's health. It was apparently on that day that the first incident of self-harm, to which I shall come, occurred. There was a second incident in January of this year. Documentation was served in March. There was a hearing in March which was adjourned until today. There has been a psychiatric report from a psychiatrist, Dr Martin Lock, dated 29 February 2012, and answers to questions raised by counsel for the CPS, provided as an addendum report on 18 April 2012. The conclusions in it are supported by a psychotherapist's report, dated 6 March 2012. It might therefore have been reasonably anticipated that the issues on the appeal would be, firstly, whether the evidence was admissible at all pursuant to the principles governing the admission of evidence for the first time on appeal as set out in Fenyvesi and, if admissible, with what effect upon section 25.
However, there has been an intervening issue which I propose now to deal with. It appears that the appellant has made an application for asylum on 9 May 2012. It is impossible to ascertain from any material before the court whether in fact such a claim has been made and has been made in the appropriate form or to the appropriate place to constitute the making of an asylum claim. There is no indication as to what the basis for that claim might be. I say that, bearing in mind that neither before the District Judge nor yet now is any ground raised, including under section 13 of the 2003 Act whereby extradition is barred, if a warrant is issued for the purpose of prosecuting or punishing someone on account of race, religion, nationality, gender, sexual orientation or political opinions or in respect to someone who might be prejudiced or punished at his trial on such grounds. Likewise, save to the extent that there is scope for an overlap between section 25 and section 21 which deals with human rights, there has been no assertion that the extradition of the appellant would breach his human rights. There is nothing in the material deployed before the court in terms of psychiatric reports which give a clue as to what the asylum point might be either.
On such a foundation, however, Mr Kiss-Wilson for the appellant, sought, and Mr Stansfield for the CPS, agreed to, an adjournment of these proceedings. This was in order to await the final determination of such asylum application as might have been made. The advocates found the court resistant to their submissions. First, it is in my judgment an inadequate basis for making such an application simply to say that an application has been made. There has to be evidence in some form or other as to how and why the claim has been made. There might be circumstances, albeit difficult to envisage in a European Union case in which a party would be unwilling to reveal to the requesting state what the point of concern is. More important is the question of whether adjournments should generally be granted where an application for asylum is made. The grounds on which the adjournment application was made were entirely general and raised no point particular to any problems which could be faced in the extradition hearing were the asylum claim to be heard after the extradition appeal or before it.
The relevant statutory provisions are these. Section 39 provides that where an asylum claim is made in the period starting with the issue of the section 2 certificate in respect of the warrant, (in this country, the certificate is given by SOCA) and ending when the person is extradited in pursuance of the warrant, by section 39(3):
"The person must not be extradited in pursuance of the warrant before the asylum claim is finally determined; and sections 35, 36, 47 and 49 have effect subject to this".
I emphasis the words that follow the semicolon. They are critical and the submissions of neither advocate addressed them.
By section 39(4), and in converting language, subsection 3 is subject to the provisions of section 40. Section 40 applies where the Secretary of State certifies that the requesting state has accepted that it is the responsible state for determining the asylum claim or that the person could not be refouled from the requesting state to a country where he would be persecuted. Statutory conditiosn apply additionally.
I emphasis the language of section 39(3). A person cannot be extradited before the asylum claim is finally determined and certain other important provisions of the Act have effect subject to that point. The claim is finally determined under section 39 when the Secretary of State allows the claim, if he allows it, or if he rejects it, when he makes his decision and there is no right of appeal or when the period for appealing ends and there is no appeal, or if the appeal is finally determined, withdrawn or abandoned.
Section 36 is the provision which deals with what happens after an extradition order has been made and there is an appeal to this court. If the decision of the court is that the person is to be extradited, by subsection 36(2) the person must be extradited before the end of the required period. By subsection (3) that required period is either the period of 10 days starting with the day on which the decision of this court becomes final or proceedings on the appeal are discontinued or, if the relevant court or the issuing authority agree a later date, 10 days starting with that later date. Section 37 deals with the position where a person is serving a sentence in the United Kingdom. Sections 47 and 49 deal with the position where there is consent to extradition and an order by consent is made under section 46 which brings different time limits for removal into play and section 49 deals with orders made under section 48 where a further Part I warrant is issued.
It is, in my judgment, perfectly clear that the statutory scheme prevents removal until the asylum claim has been finally determined and goes on to provide for the consequences of that delay in extradition for the operation of the specific statutory timetable which follows the dismissal of an extradition appeal and other like circumstances. Mr Stansfield suggested that there would be problems if an extradition appeal were not adjourned because the state might not know whether it could remove somebody: it might not know whether the required period had begun, it might have to make an application for an extension of time under section 36(3) without necessarily knowing when the asylum claim had been finally determined. These were all factors, urged Mr Stansfield, that showed that there was an advantage in adjourning extradition appeals so that there would be no hiccup to the smooth operation of the extradition appellant system after the final determination. He was concerned about whether a person might apply to a judge for discharge unless reasonable cause was shown for delay in removal. Mr Kiss-Wilson submitted that there would be concern about whether somebody whose extradition appeal had failed being removed before the final determination of his asylum claim. This could lead to the need for last-minute injunctions. These were practical reasons, it was said, why the extradition appeal should generally be adjourned to await the outcome of the asylum claim.
This sort of issue has been considered in a number of cases. Often cited, though not directly in point, is the decision of the Divisional Court in the District Court of Ostroleka v Dytlow [2009]...
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