Mateusz Koziel v District Court in Kielce, Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WYN WILLIAMS |
| Judgment Date | 22 November 2011 |
| Neutral Citation | [2011] EWHC 3781 (Admin) |
| Docket Number | CO/6224/2011 |
| Date | 22 November 2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 3781 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
President of the Queen's Bench Division
(Sir John Thomas)
and
Mr Justice Wyn Williams
CO/6224/2011
Mr Ben Keith (instructed by Dalton, Holmes, Gray Solicitors) appeared on behalf of the Appellant
Ms Hannah Pye (instructed by CPS) appeared on behalf of the Respondent
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: There is before the court an appeal under the Extradition Act 2003. On 8 May 2008 the District Court in Kielce, Poland issued a European Arrest Warrant ("the EAW") for the arrest of the appellant. The EAW stated that he was wanted for the purpose of conducting a criminal proceeding against him arising out of an offence of robbery committed on 6/7 May 2005 in Kielce, where it was alleged that, in company with others, he used violence, tugging at clothes and hitting with a vodka bottle, and that he robbed the victim of a pizza thermal bag.
The arrest warrant stated the following:
C1 "Maximum length of the custodial sentence or detention order which may be imposed for the offence(s):
for offence maximum custodial sentence 12 years of detention."
E "Offence(s)
1. This warrant relates in total to one offence."
3 "Nature and legal classification of the offence(s):
offence against property - pursuant to article 280 clause 1 of the Penal Code; offence against life and health - pursuant to article 187 clause 2 of the Penal Code in connection with article 11 clause 2 of the Penal Code."
It is not necessary to set out any more parts of the warrant.
The appellant's appearance at the City of Westminster Magistrates' Court
On 19 March 2011 the Serious and Organised Crime Agency certified the warrant under section 2 of the Act. On 26 June 2011 the appellant was arrested. He was brought to the City of Westminster Magistrates' Court. There he was advised by the duty solicitor. It is not suggested in this case that the duty solicitor did not have time to consider the warrant properly, and it is not contended that if there had been a request for an adjournment, one could not have been asked for or granted.
The duty solicitor gave advice to the appellant, and the appellant then appeared before District Judge Tubbs. At that hearing before the District Judge, the appellant did not contest the matter, but did not consent to be extradited. As no basis for contesting the surrender was put before the District Judge and as the EAW appeared, after scrutiny by the District Judge, to be compliant, the District Judge ordered his extradition on 27 June 2011.
The appeal
The appellant then consulted another solicitor. We are told, and accept, that that other solicitor had only a very short time to look at the matter as the time specified in the Act for appealing expired the same day. The solicitor put in what is headed "Grounds of appeal". At paragraphs 3 and 4 it states:
"3. This appeal is lodged in order to comply with the time limits set down in the Act and to avoid any issues of injustice or jurisdiction as outlined in Mucelli v Government of Albania and Mulai v Deputy Prosecutor in Creteil, France [2009] UKHL 2 and R(Gary Mann) v City of Westminster Magistrates' Court [2010] EWHC 48 (Admin).
4. Solicitor and Counsel will see the Appellant in conference to take place on 18 July 2011. It is to be hoped that funding will be granted by then, which will allow instructions to be taken from the Appellant and advice to be given as to the merits of his appeal. Counsel and solicitors will file and serve a skeleton argument by 22 July 2011 if there is merit in the appeal."
Bearing in mind that the appellant came at that stage, with the time expiring on 1 July, there can be no possible criticism of the solicitors, Dalton Holmes, or of counsel in respect of their attempt to protect the appellant in this way.
At the end of July 2011, outside the limit indicated, Mr Keith submitted a skeleton argument where one point was taken. That point, briefly, was as follows. Section 2(4) of the 2003 Act specifies the information that is to be set out in the EAW. Paragraph (d) provides that it must include particulars of the sentence which may be imposed under the law of the requesting state in respect of the offence if the person is convicted of it.
The issue in relation to the Polish Penal Code
The point taken is that, as the warrant refers to two provisions of the Polish Penal Code, the EAW is invalid because it does not specify the sentence in respect of each of those two provisions of the Penal Code. Reliance is placed on the well-known dictum of Lord Hope in Dabas [2007] UKHL 6 at paragraph 50, and on the decision of Scott Baker LJ in Thompson v Public Prosecutor of Boulogne Sur Mer [2008] EWHC 2787. It is submitted that it is not possible to cure the defect in the EAW by the submission of extraneous evidence.
However, there is some extraneous material from the Polish prosecuting authorities. Part of that information was annexed to the EAW, which was given, as I understand it, to the appellant at the time the EAW was served on him. That information is dated 8 September 2008, and sets out a description of Polish law in the following terms:
"E3 Section of the document in question which describes the nature and legal classification of the offence indicates that the wrongdoing imputed to [the appellant] is an offence against property and an offence against life and health. It must be cleared up here that in line with the provisions of Article 11 Subarticle 2 of the Polish Criminal Code if a wrongdoing falls within the...
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