Mateusz Konrad Zakrewski v Regional Court in Warsaw, Poland (Respondant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] EWHC 3393 (Admin) |
| Docket Number | Case Nos: CO/144/2015 and CO/3459/2015 |
| Court | Queen's Bench Division (Administrative Court) |
[2015] EWHC 3393 (Admin)
Mr Justice Irwin
Case Nos: CO/144/2015 and CO/3459/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Gledhill (instructed by HP Gower Solicitors) for the Appellant
Julia Farrant (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 21 October 2015
In this case I must decide two statutory appeals for extradition of the Appellant, pursuant to Section 26 of the Extradition Act 2003. These appeals are from DJ Bayne on 7 January 2015 and the decision of DJ Goldspring on 17 July 2015. The procedural history is a little complex.
The first European arrest warrant ["EAW 1"] was issued by the regional court in Warsaw, Poland on 4 March 2011. This is a conviction warrant. The relevant offence is that on 28 June 2007 the Appellant:
"… infringed non-intentionally the safety regulations in road traffic … in such a way that … he did not take up due precautions … lost control over the vehicle he was driving and then he hit a fence, a gate and an entrance gate causing unintentionally body injuries of the passenger – such as a multi organ injury with the brake (sic) of right limb and L1 vertebra."
The warrant goes on to recite that the Appellant was convicted and sentenced to one year imprisonment with a conditional suspension for a probation period of three years. On 11 August 2009 he was ordered to serve the sentence. On the Appellant's own account, this was because he was stopped on suspicion of drink driving.
Because of the death of his father and his mother's poor health, the Appellant applied to the Polish court to defer the beginning of the custodial sentence for a period of "five or six months". After this deferment he acknowledges that in February 2010 he was ordered by the authorities to report to prison, but he failed to do so. He had already travelled to the United Kingdom and in his witness statement accepts that he was a fugitive from justice. On his account, after arriving in the United Kingdom he sent a further letter to the court in Poland asking for a further deferral, but got no reply.
The warrant recites that a "wanted notice" was issued by the district court on 21 January 2011 ordering the detention of the Appellant. He was, of course, already in Britain. On 4 March 2011, Judge Radominska signed the EAW. The Appellant was arrested in relation to EAW1 on 15 September 2014 at Birmingham airport. As indicated, DJ Bayne reached her decision on 7 January 2015. The Appellant then sought an appeal. This was an appeal as of right, the requirement for permission not yet having been introduced. The only issue raised is the submission that DJ Bayne was wrong to reject the Appellant's arguments that extradition was disproportionate and an infringement of his right to private and family life under Article 8 of the European Convention of Human Rights.
The appeal from DJ Bayne was listed in the Administrative Court on 4 March 201However, on the day before, the Appellant was arrested in connection with the second European Arrest Warrant ["EAW2"]. Sensibly, this development was brought to the attention of Sir Stephen Silber, sitting as a Judge of the High Court. He ordered that the appeal in relation to EAW1 was to be adjourned until after the determination of proceedings at the Westminster Magistrates' Court on the second warrant, further ordering that if there was an appeal from such a second decision, the appeals should be heard together.
The second warrant (EAW2) is an accusation warrant issued by the regional court in Warsaw on 21 April 2011. The warrant relates to two offences. Firstly, the Appellant is accused that on 16 April 2007 he committed the burglary of a pharmacy in Warsaw by breaking open the entrance door and breaking into three cash registers, causing considering losses and proceeding to the theft on 300 Zloty. In addition he is accused of purchasing a Samsung Syne Master 710 monitor as stolen property. In the body of the warrant there are recited "other important circumstances". The key points are that the Appellant "did not appear at the court duly summoned and he was not staying at the given residence address". A national warrant was issued for his arrest and detention on 1 February 2011. Additional information was provided by email of April 2015 from Judge Soltys of the district court of Warsaw Zoliborz. She gives some background about the delay in the case in the following terms:
"It is true that, the length of time that has elapsed since the date of the alleged offence is quite big. Mateusz Zakrzewski had alleged offence in 2007 year. The problem is that, when the case was send (sic) to district court of Warsaw Zoliborz it was 2010. Before this date, the case was in two different courts, which decided that the case should not be judged in their district. District court of Warsaw Zoliborz on 1 February 2011 decided to arrest Mateusz Zakrzewski because he did not come to court to hearing him several times. The Polish police informed court, that he left Poland.
…
The EAW was issued in the date 21 of April 2011 and between the period of passing a decision connected with arresting Mateusz Zakrzewski and the EAW was only one year, during this time the police was looking for the defendant in Poland. The police checked the place where Mateusz Zakrzewski lived then they started to look for him in whole Poland.
During this time Mateusz Zakrzewski did not contact with court. He was instructed during the investigation that he has obligation to inform police, prosecutor and than court of any changing of the address and place of living."
EAW2 having been issued on 21 April 2011, it was certified by the NCA on 22 September 2014. The Appellant was arrested on 3 March 2015 (as set out above). He was released on conditional bail and the full hearing of his extradition before the district judge took place on 22 June 2015. The Appellant was legally represented and had the benefit of an interpreter before DJ Goldspring. Two issues only were raised before the district judge, those being proportionality and the Article 8 ECHR pursuant to Section 21 of the Extradition Act 2003 and proportionality and human rights pursuant to Section 21A of the Act. The district judge decided in favour of extradition and the Appellant sought to appeal.
By now the Appellant required permission to appeal, since by then the relevant provisions for the Criminal Procedure Rules Part 17 were in force.
The Appellant's application for permission was filed on 23 July 2015. Despite the Order of Sir Stephen Silber, it appears that the Administrative Court did not effectively link the two cases. The EAW2 case came before Collins J on paper on 4 September 2015. There is no indication that he was aware of the other case. He gave permission to appeal, citing the following reasons:
"A combination of the delay of nearly 4 years before the requesting court issued a warrant and a non-domestic burglary (albeit of a pharmacy, but cash not drugs were taken) persuade me that a judge might consider, particularly having regard to the Article 8 circumstances, that the DJ's decision was wrong."
The Appellant's appeal in respect of EAW2 made no reference whatsoever to the existence of EAW1, the decision by DJ Bayne, or the pending and adjourned appeal in the high court.
Confirmation that the two cases had not been effectively linked arose: each case was separately listed before the High Court, but in difference courts, on 21 October 2015. The Appellant's counsel, Mr Simon Gledhill, very properly made the court aware of the link between the two cases when he realised what had happened. The appeal in respect of EAW1 was then transferred to join the other appeal before me. I should point out that Mr Gledhill had not settled the notice of appeal in respect of EAW2.
Procedural Matters
Before looking at the substance of the appeals, it is necessary to underline one or two procedural points for the attention of the profession. If there is more than one set of extradition proceedings, whether in the magistrates' courts or on appeal, then it is incumbent on those representing the Appellant to ensure that every court knows the full circumstances. Counsel did so when the appeal in respect of EAW1 came before Sir Stephen Silber and when both matters were listed in October. Mr Gledhill told me that his information is that his instructing solicitors informed DJ Goldspring at the extradition hearing in July. Ms Farrant, who was present at the hearing before DJ Goldspring, has confirmed that it would be her usual practice to give a full procedural history. In this case, that would normally include the history of EAW1. However, there appears to be no specific reference in Counsel's note, taken in shorthand, confirming that the earlier warrant was brought to the attention of the Court by either party. The judgment makes absolutely no mention of the previous extradition proceedings.
Moreover, the notice of appeal in respect of EAW2 makes no mention of the earlier proceedings. This should not have happened. The staff in the Administrative Court office will always seek to link cases effectively, however it is all too easy for an error of this kind to arise if an application for permission to appeal is lodged with no mention of the earlier linked case.
The Approach to Two Cases Heard Together on Appeal
There are potential bars to extradition which must be considered separately, even when two appeals are heard together. Mr Gledhill's submission, both orally and in written submissions made at my request following the hearing, is that separate consideration should be the approach in all cases and in...
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