Maciej Brodziak v Circuit Court in Warsaw, Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 11 November 2013 |
| Neutral Citation | [2013] EWHC 3394 (Admin) |
| Docket Number | Case No: CO/1470/2013, CO/5424/2013, CO/6384/2013 and CO/6556/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 November 2013 |
[2013] EWHC 3394 (Admin)
Lord Justice Richards
and
Mr Justice Silber
Case No: CO/1470/2013, CO/5424/2013, CO/6384/2013 and CO/6556/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Clayton QC and Wojciech M Andrew Zalewski (instructed by Guney Clark & Ryan Solicitors) for Brodziak
Paul Garlick QC and James Stansfeld (instructed by Kaim Todner Solicitors) for Madej
Malcolm Hawkes (instructed by Imran Khan & Partners) for Marczuk
Joel Smith (instructed by Tuckers Solicitors) for Dunec
Peter Caldwell, Nicholas HearnandAdam Payter (instructed by Crown Prosecution Service) for the Respondent Judicial Authorities
Approved Judgment
Hearing date: 8 October 2013
This is the judgment of the Court.
The court has before it four linked appeals, all involving persons whose extradition is sought pursuant to European arrest warrants ("EAWs") issued by judicial authorities in Poland. The cases are all governed by Part 1 of the Extradition Act 2003. Extradition is sought in each case for the purpose of serving a sentence following conviction. The sentence in question is in each case a single sentence (sometimes referred to as a composite, collective or aggregate sentence) imposed in respect of two or more offences, including one or more extradition offences but also including, at least arguably, one or more non-extradition offences. A number of issues arise as to the lawfulness of extradition in such circumstances, including the question whether the requested persons, if extradited, would be required to serve sentences relating in part to a non-extradition offence, thereby infringing the rules on specialty.
We propose to look first at the circumstances of each of the four appeals and to deal with some of the specific issues to which they give rise, before going on to examine the more general issues and to set out our conclusions in relation to each appeal.
The individual appeals
Brodziak
The extradition of Brodziak is sought pursuant to an EAW to serve a sentence imposed following conviction of three offences, namely (i) concealment of documents in the form of a driving licence; (ii) possession of a quantity of heroin; and (iii) supply of a quantity of heroin. A single sentence of 1 year 6 months' imprisonment was imposed for the three offences. The sentence was originally suspended for a period of four years but it was subsequently activated and became final and enforceable on 30 December 2003.
The extradition hearing took place before District Judge Zani at Westminster Magistrates' Court on 6 February 2013. It was agreed between the parties that offence (i) was not an extradition offence but that offences (ii) and (iii) were, and the District Judge gave effect to that by ordering Brodziak's extradition in respect of offences (ii) and (iii) alone.
An appeal against that order came before King J on 17 April 2013. At that stage three grounds of appeal were advanced: (1) the District Judge erred in finding that there were effective specialty arrangements in place between the UK and Poland; (2) he erred in finding that the warrant was valid within the meaning of section 2(6)(e) of the 2003 Act; and (3) extradition would be in breach of article 6 ECHR because the Polish court was not an independent and impartial tribunal.
The evidence for the appellant before King J included an expert opinion by a Polish attorney, Ewa Draga-Buchta, on matters relevant in particular to the specialty issue. The judge took the view that before any final decision was taken the requesting judicial authority should be asked to respond to the opinion. He therefore adjourned the case part-heard.
Pursuant to the judge's request, the CPS sought "clarification" from the requesting authority, which replied by letter dated 3 June 2013. The letter indicated that the custodial sentences for the individual offences had been 3 months in respect of offence (i), 6 months in respect of offence (ii), and 1 year in respect of offence (iii), and that the court "cumulated the individual custodial sentences and imposed on the convict a cumulative 1 year and 6 months custodial sentence", pursuant to articles 85 and 86 of the Polish Penal Code. The letter went on to refer to the consequences of that approach in the event of the appellant's extradition. I will deal with that when considering the specialty issue later in this judgment.
The appeal was subsequently released by King J and was directed to be heard by a Divisional Court together with the other appeals with which this judgment is concerned. At the hearing before us, Brodziak was represented by Mr Richard Clatyon QC, who came into the case at a very late stage and without the benefit of a representation order. He pursued the first two grounds (specialty and section 2(6)(e)) but not the third ground (breach of article 6). We will consider both those grounds below in the course of our discussion of the general issues.
Madej
The extradition of Madej is sought pursuant to three EAWs. We are concerned, however, only with one of those warrants since no appeal is maintained in respect of the other two. The relevant warrant seeks Madej's extradition to serve a 2 year sentence of imprisonment imposed following his conviction for two offences.
The first offence was an offence of assisting in the retention of stolen goods, in that "on 27th September 1998, in Piaseczno, he helped to hide a passenger car … which he acquired from unknown persons knowing that this vehicle had been possessed by a forbidden action to the detriment of Leszek Czerwosz".
The second offence is described in the warrant in these terms (we will use a translation, to which no objection is taken, which is later and better than the translation placed before the magistrates' court):
"In the period 1–9 June 1999 in Piaseczno, acting with premeditated intent, he acquired from unidentified persons the following belongings obtained as a result of a prohibited act: 5 decorative garden trees, a ceramic garden snail and a water hose worth in total: 187PLN to the detriment of Leszek Karewicz, as well as a beer cooler with two cylinders worth in total: 2,210PLN to the detriment of Dariusz Rutkowski."
The warrant states that the sentence for the first offence was 1 year 6 months' imprisonment, and for the second offence was 1 year's imprisonment, but that a collective penalty of 2 years' imprisonment was imposed.
Extradition was ordered on 1 May 2013 by a district judge sitting at Westminster Magistrates' Court. Madej was unrepresented at the hearing before the judge and does not appear to have challenged the proposition that both of the offences referred to in the warrant are extradition offences.
A single ground of appeal is now pursued before us (and we grant permission for the grounds of appeal to be amended for the purpose). In substance, it is that the district judge ought to have found that the second offence is not an extradition offence within section 65(3) of the 2003 Act, in that the requirement of dual criminality is not satisfied. If that ground succeeds, various consequential issues are raised: whether the court should order the appellant's discharge pursuant to section 10(3) in respect of the second offence; whether the court should then obtain information about the possibility of disaggregation of the sentence to ensure that the remaining offence is an extradition offence; and the consequences of not being in a position to disaggregate. Those issues go beyond the specific ground of appeal, but Mr Paul Garlick QC, who presented the case on behalf of Madej, was granted a representation order for leading counsel on the basis that he would cover the issues common to all the appeals, and the court is grateful to him for the assistance he gave on them.
The contention that the second offence is not an extradition offence is founded on the requirement in section 65(3)(b) of the 2003 Act that "the conduct would also constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom". The relevant offence under the law of England and Wales is that of handling stolen goods, contrary to section 22 of the Theft Act 1968. That offence requires four elements to be satisfied: (a) the goods were stolen, (b) the defendant handled the goods, (c) the handling was dishonest, and (d) the defendant, at the material time, knew or believed the goods to be stolen. It is accepted that elements (a) and (b) are disclosed by the warrant, but it is submitted that elements (c) and (d) are not: there is no allegation on the face of the warrant that the appellant was acting dishonestly or that he knew or believed the goods to be stolen. Whilst inferences can be drawn as to mens rea, the facts must be such as to impel that inference (see the judgment of the Divisional Court in Assange v Swedish Prosecutor [2011] EWHC 2849 (Admin), at para 57); and it is submitted that there is nothing within the particulars in the warrant which impels the inference that the appellant possessed the necessary mens rea in this case.
The CPS requested further information from the respondent judicial authority as to whether Madej knew or...
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