Pavel Chmielewski v Regional Court in Radom, Poland
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May |
| Judgment Date | 08 March 2018 |
| Neutral Citation | [2018] EWHC 704 (Admin) |
| Date | 08 March 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4398/2017 |
[2018] EWHC 704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice May
CO/4398/2017
Mr B Seifert appeared on behalf of the Applicant.
Ms S Townshend appeared on behalf of the Respondent.
This is an appeal against the decision of District Judge Baraitser ordering extradition of the claimant, Mr Pavel Chmielewski, made in September last year. Leave was refused on the papers by Mr Justice Jay but allowed in respect of two grounds at the oral renewal hearing before Mr Justice Holman in January this year.
The background
I can take the background facts shortly. The EAW in this case was issued on 6 th April 2016 and certified by the NCA on 15 th February 2017. It is an accusation EAW, giving details of three fraud offences in connection with car hire agreements in which Mr Chmielewski is said to have been involved with two others in 2013. On 11 th April 2017, Mr Chmielewski was arrested and brought before Westminster Magistrates' Court. He was remanded on conditional bail and has remained on bail since. An Article 8 objection was the only one raised at that stage but he returned to court on 25 th May 2017, at which time Mr Chmielewski applied to adjourn in order to make a s.21B application and to provide evidence on a s.12A issue.
The hearing was adjourned to 5 th July, when the case was again adjourned for the s.21B request to be received and sent. There had been no response by the time of the final hearing on 5 th September 2017, but the District Judge then refused an application to adjourn further. The District Judge also declined to admit evidence from Ms Dabrowska, a Polish lawyer providing a statement about the prosecution process in Poland. The hearing went ahead. The District Judge heard evidence from Mr Chmielewski and submissions from counsel after which, on 20 th September, she handed down judgment ordering extradition.
As a preliminary issue, Mr Seifert, for Mr Chmielewski, drew my attention to para.3 of the order of Mr Justice Holman requesting a response from the Regional Court in Radom, Poland to Mr Chmielewski's request that he be interviewed either in Poland or by video link in the UK. Mr Seifert submitted that the recent response from the court in Radom had not addressed the question of whether Mr Chmielewski could be interviewed in Poland by going over there on temporary transfer and that an answer to this question was needed before the appeal could properly be heard.
Ms Townshend submitted that an answer was not required as (a), the question had never been asked by Mr Chmielewski or his representatives prior to the hearing in September last year, and (b), in any event, it must be assumed that the judicial authority had fully considered whether less coercive measures were appropriate before they issued the EAW in this case.
It appeared to me initially that as Mr Justice Holman in giving leave had clearly considered an answer to the question of whether Mr Chmielewski could be interviewed in Poland on temporary transfer relevant to the issues he had in mind for this appeal and since he had gone ahead and ordered it perhaps this appeal ought to wait for an answer. But I then looked more closely at Mr Justice Holman's reasons for including that in his order as appeared from his comments made at the time, as noted in Mr Seifert's very helpful skeleton argument. Those notes show that Mr Justice Holman was clearly under the impression that the question as to whether Mr Chmielewski could be interviewed in Poland under temporary transfer had already been asked and that the DJ was potentially at fault in not having taken that possibility into account in making her decision on proportionality under s.21(a).
I do not at all criticise Mr Seifert for this misapprehension on the part of judge at the renewal hearing but it explains the order that he made at that time. However, since my task at this hearing is to determine whether the DJ's conclusion on proportionality was wrong or not I am concerned only with the position as it stood at that time. The position then was that Mr Chmielewski had only requested information on whether he could be interviewed here in the UK either by police coming over from Poland for the purpose or by setting up a video link. It was that request to which the Radom court had provided no response. There had been no question then asked about the possibility of Mr Chmielewski going to Poland on what is termed ‘an iron letter’. That question was only asked after the renewal hearing before Mr Justice Holman in January, long after the extradition hearing before the District Judge.
Ms Townshend drew my attention in this respect to the provisions of s.21B of the Extradition Act 2003, the relevant parts of which provide as follows:
“ 21B Request for Temporary Transfer etc
“(1) This section applies if–
(a) a Part 1 warrant is issued which contains the statement referred to in s.2(3) (Warrant Issued for Purposes of Prosecution for Offence in Category 1 Territory), and
(b) (b), at any time before or in the extradition hearing the appropriate judge is informed that a request under sub section ( 2) or (3) has been made.”
…
(3) A request under this section is a request by the person in respect of whom the warrant is issued–
(a) to be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person in the case of a request under sub section (2), or the authority by which the warrant is issued, in the case of a request under sub section (3), to consider whether to consent to the request. An adjournment under this sub section must not be for more than 7 days.”
Ms Townshend pointed out that the regime for making requests as to less coercive measures is very strict. Requests must be made before or in the hearing which may as a result be adjourned but for no longer than 7 days. In this case, Mr Chmielewski had made a request for interview by Polish...
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