Patryk Hartung v The Circuit Court in Szczecin, Poland
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,MR JUSTICE KENNETH PARKER,MR MILNES,MISS TYLER |
| Judgment Date | 03 July 2012 |
| Neutral Citation | [2012] EWHC 1884 (Admin) |
| Date | 03 July 2012 |
| Docket Number | CO/11414/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2012] EWHC 1884 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir John Thomas
President of the Queen's Bench Division
Mr Justice Kenneth Parker
CO/11414/2011
Mr P Milnes (instructed by Direct Access) appeared on behalf of the Appellant
Miss K Tyler (instructed by the CPS) appeared on behalf of the Respondent
There is before the court an appeal from Westminster Magistrates' Court at which the Deputy Senior District Judge decided on 22 November 2011 that the appellant should be extradited to Poland.
The conviction and EAW
The appellant was convicted of an assault on an attendant at a garage and theft of fuel on 3 November 2002, and for theft of fuel and the threat to kill a petrol station worker in July 2002. These were serious offences and would be so treated under the law of any Member State. He was therefore sentenced to a term of 3 years and 6 months' imprisonment. He was then conditionally released. He broke the terms of the condition and has 2 months and 18 days to serve.
A European Arrest Warrant was issued for his arrest on 15 June 2009 by the court in Szczecin and certified by the Serious Organised Crime Agency on 1 October 2009. The appellant was arrested. He was seen by an experienced duty solicitor well versed in extradition law. He did not raise any grounds to contest his extradition before the Deputy Senior District Judge. He was released on bail pending his removal.
The notice of appeal
What then happened is a matter of grave concern to this court. This court has asked for an explanation from those who were involved as to why this court should not refer those concerned to the appropriate regulatory authorities. Pending that clarification, the following, it appears, is what happened.
On 24 November 2011 a notice of appeal was lodged, signed by Marcin Kozik of Malcolm McGuiness Solicitors. We have been told by Mr Milnes, a barrister who appears today on behalf of the appellant, that Mr Kozik is a paralegal, and was at the time working for those solicitors.
Attached to the notice of appeal was a draft skeleton argument. It set out grounds of appeal, to the effect that to extradite the appellant to Poland would be a breach of Article 3 of the Convention because of prison conditions in Poland. It set out a number of authorities, in particular a reference to the decision of the Strasbourg Court in Orchowski v Poland, decided by that court on 22 October 2009.
The notice of appeal then referred in the following terms to some evidence:
"The court is referred to the evidence presented by the Appellant, namely a direct evidence of former prison officer, Ms Jadwiga Siczek (statements given in May 2011 in Slowinski case), Mr Miroslaw Wardzala, a former prisoner, belongs to sexual minority, Mr Przemyslaw Kolbus, (statement coming from Sobczak case in February 2011), and the Appellant himself."
None of these statements were attached. It is wholly unclear to this court, despite enquiries of Mr Milnes, where this document came from. It is obviously a matter of concern to this court that a document should be served by solicitors and appended to the notice of appeal when the document appears on its face to have little relevance to the appeal in question. No grounds other than the breach of Article 3 were relied on.
On 28 November 2012 Ouseley J extended the time for the appeal and directed the appellant lodge the judgment of the District Judge and a copy of the European Arrest Warrant within 21 days. That order was not complied with. A date was fixed for the hearing for today's date.
The work done in June 2012
Nothing appears to have happened between then until 19 June 2012.
On that day Mr Kozik sent an e-mail to the court. It appears that by this time Mr Kozik had moved to work for Mr Mark Smith at Aegis Chambers in Wembley. We were told by Mr Milnes, a barrister at Aegis Chambers and who has appeared before us today on behalf of the appellant, that he was a clerk/research assistant in those chambers. It is therefore to be assumed that in communicating with the court he did so under the authority of that set of chambers.
In an e-mail of 19 June 2012 he said that he had made a mistake in putting the firm of Martin McGuiness as the solicitors in the appeal. He said that the actual representative was Mr Mark Smith. The e-mail explained that Mr Mark Smith was instructed under the Direct Access scheme, and that his clerk, Mr Rejnowicz, had lodged the Notice of Appeal at the court. He added that a skeleton argument would be served the following day.
On the following day (20 June 2012), the appellant's skeleton argument was sent to the court by Mr Kozik. The court was told in the e-mail that enclosed it that a statement would be served relating to the issue that was now to be raised on Article 8. No Article 8 issue had been raised before.
The skeleton argument was unsigned. We have been told by Mr Milnes today that it had been prepared by Mr Kozik. It referred, in support of the issue under Article 3, to three documents to which we shall refer in due course, namely a letter from the Deputy Human Rights Ombudsman in Poland dated 8 June 2011, a letter from the Helsinki Foundation for Human Rights of 11 August 2011, and a letter from the Polish Human Rights Ombudsman to the Minister of Justice in Poland dated 22 February 2012. None of these documents were served. Indeed, it is only this morning that an application was made to put these three documents before the court. No copy of either the skeleton or the documents were sent to counsel for the respondent or the CPS acting on behalf of the respondent. The court, however, did send that skeleton argument to counsel and to the CPS. The three documents to which we have referred were only served upon Miss Tyler, counsel for the respondent this morning as she came into court. The skeleton said nothing about an Article 8 issue.
The court then received from Miss Tyler a skeleton argument on 28 June 2011. It drew attention to the fact that the documents relied on for the Article 3 grounds had been considered by Keith J on 14 March 2012 in the decision Krzyzak v Regional Court of Tarnow [2012] EWHC 810 (Admin).
It is a matter of serious concern to this court that the appellant's skeleton argument sent to the court by Mr Kozik on 20 June 2012 omitted any reference whatsoever to the decision of Keith J, despite the fact that Mr Smith had appeared for the appellants in that case.
It is well-known that it is the duty of counsel to draw to the attention of the court any decision which is relevant to the case, including any that are adverse to the appellant. We have had no explanation as to why that case was not referred to in the appellant's skeleton argument. It is again one of the matters on which an explanation must be given before this court decides whether to refer those concerned to the appropriate regulatory authorities.
The events on the day preceding the hearing of the appeal, 2 July 2012
Nothing then happened until yesterday (Monday, 2 July). The court, having looked at the papers in the course of the day, noted that nothing further had been put in. It sent at 3 o'clock an e-mail to Mr Kozik and to Mr Mark Smith, pointing out a number of concerns including the fact that no documents had been served on the court. It requested an urgent response.
At 16.53 Mr Kozik replied. He first said that there was a mistake, that Malcolm McGuiness were not going to represent Mr Hartung. Secondly, he said that the initial skeleton argument was not going to be relied on. The appeal had been lodged before the Appellant's representative came into possession of the Ombudsman reports and the only relevant skeleton relied upon is the new one. It went on to say that it accepted that the High Court had considered the points:
"If the court however would be prepared to depart from its previous ruling, then putting these documents before the court makes sense."
Then what happened was that at 17.09 Mr Milnes sent the court two documents. The first was a report of 11 April 2011 by the European Commission on the Implementation of the Framework Decision on the European Arrest Warrant. The second was a statement from the appellant. No further documents were sent. The court was then informed, it appears by Mr Kozik, that there were four prison cases in which Mr Mark Smith had been instructed where another report was expected on prison conditions in the...
To continue reading
Request your trial
-
Artur Krolik, Sylwester Kazmierczak, Piotr Zwolinski, Tomasz Lachowski, Tomasz Soltan, Daniel Walachowski v Several Judicial Authorities of Poland
...[2012] EWHC 1311 (Admin) Holman v Poland [2012] Extradition LR 295 Lacki v PolandUNK [2012] EWHC 1747 (Admin) Hartung v Poland [2012] Extradition LR 460 In addition to those cases there have been decisions in Scotland: Poland v Machon (Sheriff Court (Lothian and Borders) Edinburgh) [2010] E......
-
Krolik and Others v Several Judicial Authorities of Poland
... [2012] EWHC 1311 (Admin) Holman v Poland [2012] EWHC 1503 (Admin) Lacki v Poland [2012] EWHC 1747 (Admin) Hartung v Poland [2012] EWHC 1884 (Admin) In addition to those cases there have been decisions in Scotland. Poland v Machon Sheriff Court (Lothian and Borders) Edinburgh, 09 July 20......
-
Guzeloglu v Government of the Republic of Turkey
...(see the words of the President of the Queen's Bench Division at paragraph 30 of Hartung v the Circuit Court of Szczecin Poland [2012] EWHC 1884 (Admin)). 17 Subject to the views of my Lord, I would direct that the appellant must serve any further evidence on which he relies on the responde......
-
R Wozniak v Circuit Court in Lublin
...ground for appealing against removal. 4 The latest decision is that of the Divisional Court in Hartung v Circuit Court in Szczecin [2012] EWHC 1884 Admin , a decision of the court consisting of Sir John Thomas PQBD and Mr Justice Kenneth Parker. Essentially that decided, following a succes......