Marek Polkowski v District Court in Kalisz, Poland (A Polish Judicial Authority)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NICOL |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWHC 3649 (Admin) |
| Date | 20 December 2011 |
| Docket Number | CO/4609/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 3649 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Nicol
CO/4609/2011
Mr J Robottom (instructed by Kaim Todner Solicitors) appeared on behalf of the Appellant
Miss H Pye (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
This is an appeal under section 26 of the Extradition Act 2003 against an order made at the City of Westminster Magistrates' Court on 13th May 2011 that the appellant be returned to Poland pursuant to a European arrest warrant.
The warrant is a conviction warrant which called for the return of the appellant to serve the remaining two years and two months-odd of a three year sentence passed for various offences relating to fraud.
The extradition hearing before the district judge was brief. The appellant was represented by duty solicitor and, while not conceding that the order should be made, no positive argument was advanced as to why it should not and no bars to extradition were relied upon.
On the appeal the appellant seeks leave to introduce fresh evidence, which is a statement from him explaining how he began to serve his sentence, that after about one year he was allowed leave from prison to travel to Ukraine to marry his girlfriend, and that he thought the remainder of his sentence had in some way been cancelled, although from the European arrest warrant it appears that that belief was mistaken. Mr Robottom, on his behalf, describes a sentence of this kind as "suspended". Terminology of that kind does not translate well; perhaps the term "interrupted" might be more accurate.
The appellant seeks to argue that whether this new evidence is taken into account or not, the warrant in this case was deficient. It does not, it is submitted, fulfill the requirements of a European arrest warrant and the district judge was not therefore entitled to proceed as he did under Part 1 of the Extradition Act 2003.
A Part 1 warrant is defined in section 2 of the Act. It is described as:
"… an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains …
(b) the statement referred to in subsection (5) and the information referred to in subsection (6)."
Section 2(5) then says this:
"The statement is one that …
(a) the person in respect of whom the Part 1 warrant is issued [has been convicted] of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
Section 2 then continues in subsection (6) as follows:
"The information is …
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence …
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
Mr Robottom says that the particulars of the warrants and sentence in this case were not adequately given.
The European arrest warrant said this:
"B. Verdict justifying the issue of the arrest warrant —
1. Types of verdict:—
Final and binding sentence by the Circuit Court in Krotoszyn from 7 January 2002 amended by the sentence by the District Court in Kalisz from 22 May 2002 —
Ruling by the District Court in Kalisz from 24 May 2005 ordering a warrant-based search —
Ruling by the Circuit Court in Krotoszyn from 22 April 2009 ordering a warrant-based search …
C. Information about penalty duration …
2. Adjudicated imprisonment or detention: 3 years' imprisonment.
3. Sentence left to be served: 2 years 2 months and 18 days' imprisonment."
The appellant argues that the sentence was passed in 2002 for a three year term. Two years remained unserved. From the details in the warrant therefore the appellant submits that he cannot tell that the remainder of the sentence has been reactivated. He submits that it is the reactivation which would trigger the European arrest warrant and particulars of that should have been, but have not been, given.
The appellant recognises that this court has said in the past that it is not necessary for the European arrest warrant in the case of a suspended sentence to specify that the sentence was suspended or to give anything other than the date on which the suspended sentence was passed as opposed to when it was activated: see Kuchta v District Court of Czestochowa, Poland [2010] EWHC 432 (Admin), Jeriorowski v Regional Court of Torun [2010] EWHC 3620 (Admin) and Florescu v Lasi High Court of Romania [2010] EWHC 2781 (Admin). But Mr Robottom submits that none of these authorities examined whether the requirements of section 2 had been met in their respective cases.
The appellant continues that where there is a conviction warrant, it is an implicit requirement that the person concerned be unlawfully at large and the requested state should be able to see from the European arrest warrant whether this is alleged to be so.
As originally enacted, section 2(5)(a) of the 2003 Act expressly included a requirement that the EAW state that the defendant was unlawfully at large. In Office of the King's Prosecutor Brussels V Candos Armas [2006] AC 1 at paragraph 43, Lord Hope observed that there was no equivalent requirement in article 8 of the Framework Decision on which Part 1 of the 2003 Act is based. Even when the Extradition Act was in the form that the House of Lords was considering it, their Lordships concluded that it was sufficient if the information that the defendant was considered to be unlawfully at large could be gleaned from the European arrest warrant and the documents to which it referred when taken as a whole.
The requirement under section 2(5) to say expressly that the defendant was unlawfully at large was removed by the Police and Justice Act 2006, schedule 13(1) paragraph 1(1) with effect from 15th January 2007. The appellant argues that nonetheless it is implicit in a scheme of return in a conviction case that the defendant should be said to be unlawfully at large and this should be apparent from the warrant, but in this case it is not.
The appellant also observes that in order to be an extradition offence for the purposes of Part 1, the statute provides a definition in section 65. Section 65(1) (a) says:
"This section applies in relation to conduct of a person if -
(a) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct, and
(b) he has been sentenced for the offence."
That retention of the phrase "unlawfully at large" in section 65, which applies for the purposes of Part 1 of the Extradition Act, is, Mr Robottom submits, significant.
The appellant submits that in order to provide adequate particulars as required by section 2(6) it would be necessary for the defendant and the court considering the warrant to be able to see that he is alleged to be unlawfully at large. That would require the court to be apprised of the triggering decision. In the case of a suspended or interrupted sentence, that would be the decision which re-imposes the duty on the defendant to return to custody. Mr Robottom submits that would also have the important protection for the appellant of allowing him to consider what defences he might have to the European arrest warrant. He argues that to have such an obligation is not an onerous requirement and fits the general scheme of the EAW.
The appellant takes a discrete point as to the terms in which the EAW referred to the conviction. It said this:
"On 16 September 1999 in Krotoszyn, Province of Wielkopolska, he made Agnieszka Dziak, unfavourably dispose of her property in that he sold her an Audi 80 [registration number is given] for PLN10,000.00 misleading her about being the owner of that vehicle while he was not. Furthermore, he committed the crime in question within 5 years of serving a penalty exceeding 6 months' imprisonment for a similar intentional crime."
Mr Robottom submits that the reference to "a similar intentional crime" alludes to another offence which is not sufficiently particularised in the EAW. He argues that the absence of particulars in this case is analogous to that which was considered by the court in the case of Echimov v Court of Babadag Romania [2011] EWHC 864 (Admin).
On behalf of the respondent, Miss Pye takes the initial point that the notice of appeal was deficient. It simply said: "Grounds of appeal to follow". Section 26(4) of the Act requires notice of appeal to be given within seven days of the district judge's decision. ...
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