Marcin Tomasz Rogala v The Circuit Court in Lublin, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Nicola Davies LJ |
| Judgment Date | 08 December 2021 |
| Neutral Citation | [2021] EWHC 3324 (Admin) |
| Docket Number | CO/429/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3324 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Nicola Davies
Mr Justice Jay
CO/429/2021
Helen Malcolm QC and Jonathan Swain (instructed by Lawrence & Co Solicitors) for the Appellant
David Perry QC and Julia Farrant (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 17 th November 2021
Approved Judgment
Introduction
Marcin Rogala (“the Appellant”) appeals against the Order of District Judge Snow made on 1 st February 2021 pursuant to s. 21(3) of the Extradition Act 2003 (“the 2003 Act”) to surrender him to Poland. Permission to appeal was granted by Cutts J on the sole ground that the offences specified in the Part 1 warrant were not extradition offences (see s. 10). As was then the practice in all Polish cases, the ground that the European Arrest Warrant (“EAW”) was not issued by a judicial authority (see s. 2) was stayed pending the determination of the issue by this Court in Wozniak and Chlabicz. Judgment in that case was handed down on 23 rd September 2021 ( [2021] EWHC 2557 (Admin)), and the parties agree that we should make the standard order that is being made in all Polish cases pending the determination of the application for permission to appeal to the Supreme Court.
The appeal is brought under s. 26 of the 2003 Act. The combined effect of s. 27(2) and (3) is that an appeal may be allowed if the District Judge ought to have decided a question before him at the extradition hearing differently and, had he decided the question in the way he ought to have done, he would have been required to order the person's discharge. It follows, as Mr David Perry QC pointed out, that if District Judge Snow's decision is defensible on a basis not relied on by him, the appeal must be dismissed.
Essential Factual Background
The EAW in this case was issued on 26 th February 2019 and certified by the National Crime Agency on 15 th September 2020. It is a conviction warrant, based on the decision of the Provincial Court of Lublin made on 2 nd February 2011, which imposed a sentence of one year and four months' custody. The Appellant was not present on the occasion of his conviction although nothing turns on this. What was initially a suspended sentence was later activated. All bar one or two days of the sentence remain to be served.
The sentence was imposed in respect of two offences set out in Box E of the EAW as follows:
“I. In June 2007 in Chelm and in other towns in Poland and Italy, acting with other identified and not identified persons [the Appellant] participated in an organised group having for its purpose the commission of an offence that is passing counterfeit notes. (“the first offence”)
II. In June 2007, dates not exactly established, in Italy, in short time intervals with the prior intention, acting with other identified and not identified persons, within fixed distribution of roles, and repeatedly participating in an organised group [the Appellant] passed not less than 50 counterfeit notes of 100 Euro each.” (“the second offence”)
Under Polish law the first offence was charged as an offence of public order contrary to article 258 para 1 of the Penal Code (on the basis that a conspiracy to perform criminal acts is an offence undermining public order in the widest sense of that term), and the second offence was charged as an offence against the circulation of money and securities contrary to article 310 para 2 of the Penal Code, in connection with article 65 para 1.
In Box E.1 of the EAW, the offence of “forgery of means of payment other than the money” was ticked, whereas under the rubric “full description of offence(s) not covered by section E.1 above”, one sees “as in section E”.
The CPS then sought further information from the Polish Judicial Authority, and on 3 rd December 2020 the following clarification was provided:
“[The Appellant] participated in the organised criminal group, that was acting in the territory of Chelm, other locations in Poland and in Italy and other states of the European Union that dealt with placing into circulation of the counterfeit euro notes.
The proceedings conducted in the case … provided the basis to establish that most of the persons covered by the investigation belonged to a criminal group that organised and controlled distribution of counterfeit cash in the territory of the European Union states. The purpose of acting in the group was committing the offences, both regular as well as depending on available opportunity. Its participants committed the offences in different personal arrangements. The group leaders were: a national of Poland, residing in the territory of Italy and a woman of Romanian nationality, who had a direct access to illegal counterfeit money manufacture … Recruitment of people who were to be engaged in distribution of counterfeit notes was carried out in the territory of Chelm and nearby localities. Persons recruited in such way committed the offences connected with placing into circulation the counterfeit 50 and 100 euro notes in the area of Italy (mainly in cities: Pescara, Aquila, Ancona, Chieti, San Benedetto, Rome, Sylva), where most of the activities of the group had focused, but also in France, Spain and The Netherlands. Efficient placing into circulation of counterfeit 100 euro note, resulted in receiving by a distributor from 30 to 40 euro, whereas placing into circulation of notes at face-value 50 euro – from 20 to 25 euro.
One of the persons recruited was [the Appellant] who in the period from June 2007 in the territory of Italy, had repeatedly placed into circulation not fewer than 50 counterfeit notes at face-value 100 euro, in such a way that he paid with counterfeit notes for products if this value, changing counterfeit money in such way.
The evidence material gathered in the course of proceedings allowed to present the charges to 96 persons. Due to excluding some material to separate proceedings it is not possible to indicate a total value of counterfeit notes. Nevertheless it should be indicated that … 23 persons were accused together with [the Appellant], who had placed into circulation not fewer than 10.505 notes at face-value 100 euro and not fewer than 4830 notes at face value 50 euro.
At the same time I inform that charges included in paragraph I and II refer to conspiracy of the same organised criminal group.” (emphasis supplied)
There is an obvious interrelation between the two offences. The final sentence cited above makes that crystal-clear. It appears that the Polish prosecutor has charged the conspiracy as “count 1” and the substantive offence as “count 2”, whereas the CPS in this jurisdiction would either have charged just one offence – the conspiracy (with the overt acts perpetrated as being in furtherance of it) – or, by way of alternative, would have charged the substantive offence of passing etc. counterfeit notes and coins, contrary to s. 15 of the Forgery and Counterfeiting Act 1981, as “count 2”.
Ms Helen Malcolm QC sensibly focuses on the second offence. It is reasonably clear from the EAW and the further information provided that the Appellant was in Italy when he committed the substantive offences. If she is correct in submitting that the criminal courts in England and Wales would not accept jurisdiction in comparable circumstances (because a defendant in like case to this Appellant was not in this jurisdiction at the material time), that would be sufficient for her purposes and she would not need to assail the first offence. In relation to that offence, the further information is not as clear as it might be although Ms Malcolm accepted in oral argument that she would have difficulty in challenging an interpretation of the further information that what was being alleged, and was subsequently proved, was that the principal conspirators recruited those lower down the chain, including the Appellant, in Poland (see the highlighted passage). In my view, the fact that the Appellant committed the relevant overt acts in Italy in the same month is not inconsistent with his travelling from Poland to Italy, and the fact that one of the principal conspirators was based in Italy does not generate the inference that the Appellant must have been recruited there.
The sentence of one year four months' custody did not differentiate between the two offences. Mr Perry submitted that the sentence would have been the same even had the Appellant not been charged with offence 2. That may be right, but I cannot be sure to the requisite standard that it is so. However, it is at least a further pointer that the Polish authorities were indicting one continuous criminal activity.
The Statutory Framework
Poland is a category 1 territory for the purpose of the 2003 Act and it follows that the Appellant's case is governed by the legislative scheme contained in Part 1 of the Act (ss. 1 to 68A).
S. 10 of the 2003 Act provides that the District Judge must decide whether the offence specified in an EAW is an “extradition offence”. If it is not, he must order the defendant's discharge.
The definition of an extradition offence in the context of a conviction EAW is found in s. 65 of the 2003 Act, which so far as it applies to the Appellant's case (being a pre-Brexit case) provides as follows:
“ 65 Extradition offences: person sentenced for offence
(1) This section sets out whether a person's conduct constitutes an “extradition offence” for the purposes of...
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