Marek Jakubowski v Regional Court in Bialystok III Criminal Division, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 24 March 2022 |
| Neutral Citation | [2022] EWHC 660 (Admin) |
| Docket Number | Case No: CO/959/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/959/2020
Graeme Hall (instructed by Cheesemans Solicitors) for the Appellant
Jonathan Swain (instructed by CPS) for the Respondent
Hearing date: 24 February 2022
Approved Judgment
A. Introduction
This is an appeal against an extradition order made on 3 March 2020. The order rested on a European Arrest Warrant (“EAW”) issued on 15 January 2015 and certified by the National Crime Agency on 16 February 2015.
The warrant is a conviction warrant which rests on four convictions.
(a) The first (Case III K 274/96) occurred on 27 August 1997 and was a conviction for criminal damage committed in July 1996. The EAW states that Mr Jakubowski was present at the trial. He was sentenced to serve 1 year in prison. The sentenced was suspended for 3 years, but on the 20 December 2000 was activated by reason of further offending.
(b) The second conviction (Case III K 603/00) occurred on 8 June 2000. Mr Jakubowski was convicted of driving when disqualified. That offence occurred in September 1999. Mr Jakubowski was sentenced to 4 months in prison, and the sentence was “adjourned” on grounds of Mr Jakubowski's health. But in October 2006 the sentence was activated. The EAW states that Mr Jakubowski was present at trial when he was convicted and sentenced.
(c) The third conviction (Case III K 2131/01) was on 27 January 2003. The offence had been committed in February 2001 and is described as an offence of theft aggravated by threats to the shopkeeper with a razor. Mr Jakubowski was sentenced to serve 1 year in prison. The sentenced was “adjourned” to June 2004 by reason of Mr Jakubowski's health. The EAW explains that Mr Jakubowski failed to collect the summons that subsequently required him to surrender to serve the sentence. In respect of this offence too, the EAW states that Mr Jakubowski was present at trial.
(d) The fourth conviction (Case III K 1793/05) resulted in a sentence of 2 years 2 months in prison. This too was an offence of theft aggravated by threats made to the shopkeeper, this time using a knife. One year and 330 days of that sentence remains to be served. The EAW again states that on this occasion Mr Jakubowski was present at his trial.
The present EAW is the second warrant issued in respect of these matters. The first warrant was issued on the 14 September 2007 and was certified by the National Crime Agency on 6 December 2010. Mr Jakubowski was arrested pursuant to that warrant on the 4 August 2014. However, that warrant was then withdrawn because it did not comply with amendments made to the Framework Decision that had come into force between the date the warrant was issued and the date it was certified.
At the extradition hearing Mr Jakubowski contested extradition on two grounds: first that his extradition was barred by section 20 of the Extradition Act 2003 (“the 2003 Act”); second, that extradition would be a disproportionate interference with his ECHR article 8 rights. The judge found against Mr Jakubowski on both issues. Both are now pursued on this appeal.
B. The section 20 ground of appeal
(1) General points
Section 20 of the 2003 Act aims to ensure that a convicted person will not be surrendered to serve a sentence of imprisonment passed in circumstances that breached the requested person's right to be present at trial and defend himself. Section 20 poses a series of questions. The first is whether the requested person was present when convicted. If he was not, the court must then decide if the requested person deliberately absented himself from the trial. If he was absent but did not deliberately absent himself, the court must decide whether the requested person would on surrender, be entitled to a retrial or some form of equivalent review.
It is well established that section 20 of the 2003 Act is intended to give effect to article 4a of the Council Framework Decision of 13 June 2002 (2002/584/JHA, “the Framework Decision”), and that article 4a of the Framework Decision is to ensure protection of ECHR article 6 rights. This point was made by Irwin LJ in his judgment in Szatkowski v Regional Court in Opole, Poland [2019] 1 WLR 4528
“30. Section 20 of the Act represents the domestic legislature's reflection of Article 4a(1). That said, it is plain that the terms of section 20, and in particular the terms of section 20(5) and (7) of the Act are not congruent with the terms of Article 4a(1). That brings into play the principle of conforming interpretation. It is therefore the obligation of the English Court, to interpret section 20 so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues.
31. In our judgment the result that is pursued by Article 4a(1) is self-evident: it is to make provision to ensure that the Article 6 rights of a person who is potentially subject to extradition because of a trial at which he was not present are protected. This is replicated to a substantial extent by the terms of section 20. The first question under both the Article and the Act is whether the appellant was present at his trial. If he was not, there are potential Article 6 concerns. Those concerns are met if he was deliberately absent and the procedure then follows that laid down by section 21. If he was not deliberately absent then there are potential Article 6 concerns unless there has been or will be provision for a retrial. Article 4a(1)(c) deals expressly with the position where there was past provision for an effective retrial; Article 4a(1)(d) separately makes express provision for a future effective retrial. S. 20 does not expressly distinguish or discriminate between past and future effective retrials: in other words, it does not expressly replicate the separate provisions of Article 4a(1)(c) and (d).”
On the facts of that case, the court interpreted section 20 as not providing a bar to extradition in circumstances where the requested person had been convicted in absentia and would not be entitled to a retrial on surrender but had already, after being served with the trial decision, failed to exercise a right to retrial or appeal. At paragraphs 33 and 34 Irwin LJ stated as follows:
“33. The clear intent section 20 of the Act is to give proper protection to the appellant's Article 6 rights. That intent cannot reasonably be said to be “contradicted” by an interpretation which allows a person to be extradited, when the only reason that he will not have the opportunity of a retrial on his return is that he had such an opportunity previously and chose not to take it. Nor is any guidance on this point to be gained from the fact that Parliament has not seen fit to amend section 20 in the light of Article 4a. On the basis that our conforming interpretation is correct, there was no need for amendment and it would be idle and irrelevant to investigate whether and if so why a decision not to amend was taken. In our judgment, for the reasons we have set out, the intent of Article 4a and Section 20 are essentially the same, so that an interpretation which leads to extradition on the facts of the present case goes with the grain of the legislation and does not contradict it. Indeed, the contrary reading would involve the absurd proposition that a potential extraditee can be returned if he has a right of appeal which he might waive, but cannot be returned if he has already waived it.
34. We recognise that our proposed interpretation involves departure from the strict, literal or narrow interpretation of the words that the legislature has elected to use; and that it involves the implication of words necessary to comply with Community law obligations. But these are not impediments to conforming interpretation, as Vodafone 2 makes clear … The necessary sense can be achieved economically, as Ms O'Raghallaigh herself recognised in her written submissions, so that the subsection can be taken by implication to read “…whether the person was or would be entitled to a retrial …””
The reference to the Vodafone case is to the judgment of the Court of Appeal [2009] EWCA Civ 446 at paragraph 37.
(2) The facts so far as they concern this part of the appeal, and the decision of the District Judge
The section 20 submission in this appeal concerns only the third conviction (Case III K 2131/01, of 27 January 2003). Mr Jakubowski was present at the trial when he was convicted and sentenced. That was in January 2003. He then appealed. He was present at the appeal hearing. No date has been provided for that hearing, but there is no dispute either that the appeal took place or that Mr Jakubowski was present when it did. The appeal failed. On both these occasions Mr Jakubowski was represented by court-appointed lawyers.
Those lawyers then made an application on his behalf to the Polish Supreme Court in its capacity as a cassation court (“the cassation appeal”). Very little information indeed has been provided about those proceedings. Neither I nor the District Judge was provided with a copy of the cassation appeal documents. Further information provided by the Requesting Judicial Authority (dated 29 April 2020) states that the appeal was rejected by the Supreme Court “ without the participation of the parties” pursuant to Article 535 of the Polish Code of Criminal Procedure (“the PCCP”). The gist of the information seems to be that under the PCCP such applications were, as at 2005, considered first on the papers and that it was open to the court to reject an appeal at that stage if it considered the appeal to be “evidently groundless”. If an...
To continue reading
Request your trial
-
Zygmunt Niziol v Regional Court in Warsaw (A Polish Judicial Authority)
...where that would mean a breach of their human rights ( Jakubowski v Regional Court in Bialystok III, Criminal Division, Poland [2022] EWHC 660 (Admin), para 17, per Swift J). Grounds 1 and 4 68 It is convenient to take Grounds 1 and 4 together, which was the approach adopted by both partie......