Marcin Podlas v Koszalin District Court Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,or |
| Judgment Date | 31 March 2015 |
| Neutral Citation | [2015] EWHC 908 (Admin) |
| Docket Number | Case No: CO/4311/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 March 2015 |
[2015] EWHC 908 (Admin)
Lord Justice Aikens
Mr Justice Cranston
Case No: CO/4311/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Unnati Bhatt (instructed by Guney, Clark and Ryan) for the Appellant
Nicholas Hearn (instructed by CPS) for the Respondent
Hearing dates: 20/01/2015
This is the judgment of the court.
Synopsis
The extradition of Marcin Podlas ("the appellant") is sought in respect of two European Arrest Warrants ("EAWs") by a Polish Judicial Authority, the District Court of Koszalin ("the JA"). Poland is, of course, a category 1 territory for the purposes of the Extradition Act 2003 ("the EA") so that Part 1 of the EA applies to this case and this appeal. The two EAWs are what are commonly called "conviction" EAWs, that is to say the appellant's return is requested in order that he may serve outstanding prison sentences. The total period of imprisonment, taking the two EAWs together, is four years six months.
The first EAW ("EAW 1") was issued on 14 July 2009 and was certified by the Serious Organised Crime Agency ("SOCA") on 18 September 2009. It relates to three offences: the first is of driving with excess alcohol. The particulars of that offence, as set out in box (E) of the EAW state that the appellant drove a car "under the influence of alcohol – 1,04 mg/l of alcohol in the exhaled air" and made a reference to a provision in the Polish Criminal Code. That description was the basis for a challenge before the DJ (and this court) that that offence is not an extradition offence pursuant to section 10 of the EA. The second offence was of obstructing a constable in the execution of his duty. The request for extradition in respect of the third offence was withdrawn and is not relevant. The period of imprisonment imposed in respect of each of the two relevant offences was one year.
The second EAW ("EAW 2") was issued on 1 October 2013 and was certified by the National Crime Agency ("NCA") on 24 October 2013. EAW 2 seeks the extradition of the appellant to serve a sentence of two years six months in respect of a tax fraud.
The appellant was arrested under EAW 1 on 19 August 2013 and arrested under EAW 2 on 19 November 2013. The appellant made two initial challenges to the EAWs: first, as to their validity under section 2 of the EA and secondly, as to whether the offences identified were extradition offences, under section 10 of the EA. District Judge Ikram ("the DJ") rejected both of those challenges on 27 June 2014. Further challenges to the two EAWs were then made on the grounds that: (1) EAW 2 did not give sufficient particulars of the alleged VAT fraud in respect of the amount of benefit obtained or how it was calculated, so that EAW 2 was invalid; (2) in relation to both EAWs it would be oppressive by reason of the passage of time to order the appellant's extradition, by virtue of section 14 of the EA; (3) in relation to EAW 2, the JA could not prove, to the criminal standard, that the appellant had deliberately absented himself from his trial, so that, because it was accepted that the appellant would not have the right of a retrial if surrendered to Poland in respect of that offence, his extradition was barred by virtue of section 20(7) of the EA; and (4) the extradition of the appellant would be a disproportionate interference with his rights to a private and family life under Article 8 of the European Convention on Human Rights ("ECHR"), so that his extradition was barred by virtue of section 21 of the EA.
At the main extradition hearing on 29 August 2014 the DJ heard oral evidence from the appellant, his partner (Ms AC), and Dr Tom Grange, who had prepared a psychological report on the effect of the extradition of the appellant on his family, especially the two minor children. The DJ had before him various statements from the appellant and his partner and other documents. The DJ reserved his Reasons for his Ruling, which he handed down on 11 September 2014. The DJ rejected all of the challenges to the extradition under the two EAWs and so ordered the appellant's extradition in accordance with section 21 of the EA.
On this appeal, the extradition order is challenged by Ms Bhatt on behalf of the appellant on four grounds. These are: (1) in respect of EAW 1, the first offence (drink driving) is not an extradition offence because it is not clear on the face of the EAW that the conduct therein alleged would constitute an offence under the law of England and Wales if it had taken place within the jurisdiction, because of the reference to "1,04 mg/l of alcohol in the exhaled air". The DJ was wrong to make a calculation to "convert" that figure into the measurement that would be used under English law, for the purposes of section 65(3)(b) of the EA. (2) In respect of both EAWs, the DJ was wrong to conclude that the appellant was a "fugitive", so that he was not entitled to argue that his extradition would be "oppressive by reason of the passage of time" under section 14 of the EA; (3) in relation to EAW 2, the DJ was wrong to conclude that the appellant had deliberately absented himself from the trial for the purposes of section 20(3) of the EA, so that, as it was accepted that the appellant would have no right of retrial if returned to Poland, the DJ should have discharged him in respect of EAW 2 pursuant to section 20(7); (4) the DJ erred in concluding that, in relation to both EAWs, the appellant's extradition would be disproportionate to the interference with the appellant's rights to private and family life under Article 8. Ms Bhatt informed the court that she was not pursuing the argument that EAW 1 did not contain sufficient particulars of the first and second offences, so as to make it an invalid EAW.
First ground: is the "drink driving" offence identified in EAW 1 one that discloses conduct that would constitute an offence under English law?
Ms Bhatt's argument concentrates on the following statement of the DJ in his Ruling of 27 June 2014:
"The first offence in EAW 1 relates to an allegation of excess alcohol and a simple calculation (as the Polish figures are clear in their units) shows that his breath reading when driving was the equivalent of 104 micrograms of alcohol in 100 ml of breath, the limit in England being 35 micrograms".
Ms Bhatt relies upon the decision of Ouseley J in R(Rozakmens) v Judicial Authority of Latvia [2010] EWHC 3500 Admin. In that case the requested person was accused of driving while being under the influence of alcoholic beverages in Latvia, where it was alleged that "the amount of alcohol in his breath when checked with portable device for alcohol checking Lion SD-400, during first check was 0.71 per mile, but during second check, 0.75 per mile". Ouseley J rejected an argument that there was dual criminality by reference to the offence of driving or being in charge when under the influence of drink or drugs, which is an offence under section 4(1) of the Road Traffic Act 1988, which replaced similar provisions in earlier enactments. Ouseley J referred to section 5 of the 1988 Act which creates an offence of driving with alcohol in the breath being above a prescribed limit. However, section 5 had not been relied on as the equivalent English offence before the DJ in that case. At [8] of his judgment Ouseley J commented that the court would need to be clear "that the Latvian measurements could be translated into an English measurement satisfactorily enough" for a judgment to be made to see whether the facts constituted an offence under section 4. Ms Bhatt submitted that the comments of Ouseley J represented a proposition of law that the English court will not attempt to do any calculation, however simple, from units used by the requesting country in its legislation to those used in the UK statute which is relied upon as the basis for showing that the conduct alleged would constitute an offence under the relevant UK law if it had occurred in the UK.
We accept that a degree of caution is needed if the appropriate judge (or this court) has to compare measurements used in a requesting state's statute to see if the offence in the requesting state would also constitute an offence under the relevant UK law if it had occurred in the UK. However, in our view there are no difficulties in this case whatsoever. The judge's statement of the figures, as set out above, is obviously correct, so that the offence committed by the appellant would have been an offence under section 5 of the 1988 Act if committed in the UK.
We reject this ground of appeal.
Second Ground: in respect of EAW 2, was the DJ wrong to conclude that the appellant was a "fugitive", so that he was not entitled to argue that his extradition would be "oppressive by reason of the passage of time" under section 14 of the EA?
Ms Bhatt advanced no argument in relation to EAW 1. However, in respect of EAW 2, she accepted that the appellant could not rely on section 14 as a bar to extradition if it was established that the appellant was a fugitive. She submitted that the DJ erred in his finding that the appellant was a fugitive. She also submitted that the DJ erred because he effectively shifted the burden of proof onto the appellant to demonstrate that he was not a fugitive, so that the DJ's conclusion of fact cannot stand.
The DJ analysed the evidence of the appellant in relation to the sequence of events concerning EAW 2. The DJ accepted the statement of the JA that the...
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