Marcin Rafal Szerffel v Regional Court in Bydgoszcz Poland
| Jurisdiction | England & Wales |
| Judge | Nicol,Mr Justice Nicol |
| Judgment Date | 20 February 2014 |
| Neutral Citation | [2014] EWHC 335 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9006/2013 |
| Date | 20 February 2014 |
[2014] EWHC 335 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: CO/9006/2013
Mr M. Hawkes (instructed by Lansbury Worthington) for the Appellant
Mr D. Sternberg (instructed by CPS Extradition Unit) for the Respondant
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
1. On 6 th July 2013 District Judge Evans ordered the Appellant to be extradited to Poland pursuant to a European Arrest Warrant and Part 1 of the Extradition Act 2003. He has appealed against that decision to this Court.
2. The warrant referred to four offences (the Appellant would say four groups of offences). The first, labelled in the warrant as Offence A, was an accusation matter. I will come back to describe it more fully. Offences B, C and D were conviction matters. Offence B alleges that the Appellant threatened the victim with a knife to recover money for a damaged car. For this offence the remaining sentence is 1 year, 10 months and 28 days. The warrant says Offence B was committed on 16th November 2011, but that would seem to be a typographical error for 16th November 2001 (as is reasonably clear from the year of the offence in the Polish original). Offence C covered two offences, both committed on 1st May 2003. They were damage to property and assault. For these the Appellant was sentenced to 1 year in prison. Offence D is described briefly as ‘fencing’ stolen property on 6th August 2004. For this he received 10 months imprisonment. Again it will be necessary to say more about the description of this offence in the warrant.
3. I return to Offence A. In Box E Part 2 of the warrant, this is described in the following terms:
“in the period between August 2004 and April 21, 2005 in Bydgoszcz, at ul Kseldza Skargi 13/1 and in Modrakowa Street, acting with particular cruelty, he mistreated mentally and physically [the complainant] in such a manner that in the period between August 2004 and September 10, 2004 in an apartment at 13, Kseldza Skargi Str. Apt.1, he was beating and kicking the victim all over her body, he used to throw her against the wall, bringing her to the loss of consciousness, moreover; with the use of knife and on January 27, 2005 in Bydgoszcz at 78, Modrakowa Str, by means of a short text message sms, sent at the mobile phone belonging to Marzena Nejman, he threatened her with the deprivation of her life; moreover, he insulted her with the words generally considered as vulgar, moreover using violence and acting with particular cruelty, he brought her to sexual intercourse and yielded to other sexual activities; in the period between September 2 and 8, 2004 in an apartment in 13, Kseldza Skargi Str. Apt.1, he deprived the victim of liberty, keeping her against her will, moreover he caused the impairment of the organs of the body of the aggrieved for the period under 7 days; moreover on April 21, 2005 in Bydgoszcz at Modrakowa Str, he applied towards the aggrieved party the illegal threat in order to influence her by withdrawing the earlier provided testimony, where the offence was committed after being previously sentenced within the framework of Article 64 section 1 of the Penal Code.”
4. Part 3 of Box E describes the nature and legal classification of what is listed under Offence A as follows:
“the offence of Article 207 section 2 of the Penal Code in conjunction with Article 197 section 4 of the Penal Code in conjunction with Article 189 section 2 of the Penal Code in conjunction with Article 190 section 1 of the Penal Code in conjunction with Article 245 of the Penal Code in conjunction with Article 157 section 2 of the Penal Code in conjunction with Article 11 section 2 of the Penal Code in conjunction with Article 64 section 2 of the Penal Code — mistreatment with particular cruelty, rape with particular cruelty, deprivation of liberty, threatening with deprivation of life, impairment of the body organs functioning for the period under 7 days, threatening to influence the witness, acting in terms of the multiple recidivism.”
5. Box C of the warrant says that the maximum sentence for Offence A will be 15 years imprisonment. In Box E1 the European Framework list is ticked under ‘rape’.
6. Offence D is described thus:
“on August 6, 2004 in Bydgoszcz, at 13, Piotra Skargi Str. in the apartment number 1, he was in possession of the items that were received by means of the forbidden act, i.e. the hair clipper Chromini Moser of the total value of PLN 122.88, the Wahlo hair clipper of the total value of PLN 304.60, originating from the burglary into the wholesale PolWell in Bydgoszcz, at 27, Kosciuszki Str, and moreover the Nikon E-55 camera of the total value of PLN 210, the car computer of Fiat Punto 1.2 MPI make, of the total value of PLN 190, a car computer of Fiat Punto 1.1 make, of the total value of PLN 200, an unidentified car computer of the total value of PLN 50, where Marcin Szerffel committed this offence before the end of 5 years from serving the period between November 26, 1999 and September 26 2001, the total penalty of 1 year and 10 months of custodial sentence, ruled by the total judgment of May 16, 2000 in the matter of the Provincial Court in Bydgoszcz, of the case file number IV K 256/00 for the offences among others of Article 279 section 1 of the Penal Code.”
The grounds of appeal concerning Offence A
7. Mr Hawkes, on behalf of the Appellant argues that the District Judge should have discharged the Appellant in relation to offence A:
i) Because in reality the warrant refers to 7 charges under this heading, but gives a single maximum sentence of 15 years. Accordingly the warrant does not contain, as required by s.2(4)(d), the particulars of the sentence which may be imposed under the law of Poland if the Appellant was to be convicted of it.
ii) Because by reason of the passage of time since he is alleged to have committed this offence, it would be unjust or oppressive to extradite him and the Appellant should be discharged pursuant to s14.
iii) Because it appears that the District Court which issued the EAW is not the District Court before which the Appellant is to be tried for Offence A if he is extradited.
Alleged failure to state the maximum sentence for offence A
8. Mr Sternberg, on behalf of the Judicial Authority, argues that the warrant characterises Offence A as a single offence — see my quotation from Part 3 of Box E above. This is also apparent from the opening words of Box E which says “The warrant relates to in total 5 offences” (presumably 5 rather than 4 because Offence C concerns two offences). The inference is that Offence A is a single offence. On this basis, it is consistent for Box C to specify a single maximum sentence for Offence A.
9. Mr Sternberg argues that, to the extent there is any ambiguity, it is resolved by further information provided by the Judicial Authority in a letter dated 28th November 2013 which says,
“In keeping with Section 11 of the Criminal Code of the Republic of Poland (1) The same act may constitute only one offence. (2) If an act meets the criteria specified in two or more regulations of a criminal law, the Court sentences for one crime, based on all coinciding provisions. (3) In an event specified in (2), the Court imposes a punishment based on the regulation imposing the most severe punishment, without prejudice to imposing other measures provided for in the law under all of the coinciding regulations.
This construction, adopted in the Polish system of criminal law, applies when one prohibited act meets the criteria for types of prohibited acts specified in at least two provisions of a criminal law, and when omitting one of the coinciding regulations would result in failing to adequately render the lawlessness of that act in its legal classification.
Marcin Szerffel has been charged with committing one act which in fact covers several actions meeting the criteria of other offences, that is [the letter then sets out the maximum sentence for each of the coinciding offences that were referred to in the Box E description. These range from 15 years for rape to 2 years for making unlawful threats and also for inflicting injuries]…In conclusion, Marcin Szerffel is wanted for committing all of the above offences with one act, including the rape of [the complainant].”
10. Mr Hawkes submits that it is not open to the Judicial Authority to have recourse to the further information. He refers me to Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 where Lord Hope said at [50] that the District Judge must be satisfied that he is dealing with a Part 1 warrant within the meaning of s.2(2). “A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of s.2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it.”
11. In my judgment, Mr Hawkes' submission does not assist him. Firstly, that is because, I agree with Mr Sternberg that, looking exclusively at the warrant, Offence A is concerned with a single offence. That is plainly how the warrant treats Offence A. It has been frequently said that, when dealing with the operation of the EAW system, English courts and English lawyers must...
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