Pawel Niedzwiecki v Regional Court in Suwalki Poland

Pursuant to section 26 of the Extradition Act 2003 ("the Act") this appellant is challenging the decision of District Judge Snow dated 24 January 2014 to order his extradition to Poland. Extradition was requested by the District Court of Suwalki in Poland pursuant to a European Arrest Warrant ("the warrant") issued on 2 February 2010 and certified on 31 December 2013. It is an accusation warrant which states in relation to the appellant as follows:

"Throughout the period between 5th August 2008 and 7th August 2008 in Suwalki (Poland), violated the regulations of Polish Law, he possessed a stupefacient in the form of amphetamine, of unspecified chemical composition and weight, but not less than enough for one fix."

It is common ground that the maximum sentence for this offence is 3 years' imprisonment.

On 15 July 2009 the District Court issued a judgment requiring the appellant's temporary detention for a term of 14 days. The warrant was then issued on 2 February 2010. Following certification, the appellant was arrested on 1 January 2014.

At the initial hearing at Westminster Magistrates' Court on 2 January no issues were raised under sections 4 or 7 of the Act. The appellant did not consent to his extradition.

At the extradition hearing on 24 January the appellant gave evidence and raised bars to his extradition under section 10 and section 21 relying on his Article 8 rights.

In a skeleton argument dated 7 January 2014 the appellant's representative raised an objection under section 2 of the Act in addition, but that argument was apparently not pursued before the District Judge. The District Judge ordered the appellant's extradition and an agreed and approved note of his ex tempore judgment is now before the court.

I should record the fact that the appellant was released on conditional bail by order of the High Court dated 31 January 2014. As a result of a breach of bail conditions his conditional bail was revoked and a warrant was issued for the appellant's arrest. At present the appellant's whereabouts are unknown.

On behalf of the appellant, Mr Fidler makes essentially the following submissions: (1) that the offence as set out in the warrant is not an extradition offence; (2) that sections 10 and 64 of the Act have not been complied with; and (3) if these submissions are rejected, that it would be disproportionate to extradite this appellant for such a minor offence having regard to the period for which he has already spent time in custody and having regard to his rights under Article 8 of the European Convention on Human Rights.

In relation to the first two grounds, section 10(2) of the Act provides that the judge who is conducting the extradition hearing must decide whether the offence specified in the warrant is an extradition offence. If that question is answered in the negative he must under subsection (3) order the person's discharge.Section 64(3) provides that the conduct of a person constitutes an extradition offence if the following conditions are satisfied:

"(a)the conduct occurs in the category 1 territory;

(b)the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c)the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law)."

The District Judge was clearly satisfied to the criminal standard that the offence was an extradition offence within the meaning of sections 10 and 64(3). Mr Fidler submits that he was in error in so concluding. His contention is that section 64(3) cannot be satisfied on the basis of the information contained in the warrant alone. He submits that the words "of an unspecified chemical composition and weight" render the particulars of this offence unclear and the information in the warrant inconsistent. He submits that the appellant would not fall to be sentenced in this country for this offence charged in these terms.

Rejecting this argument below, the District Judge ruled as follows at paragraph 4 of his judgment:

"The second challenge is that I cannot be satisfied so that I am sure that the offence is an extradition offence within section 10. The words relied upon are also to be found in Box E and read as follows, 'he possessed a stupefacient in the form of amphetamine, of unspecified chemical composition and weight, but not less than enough for one fix'. The Requested Person submits that because the chemical composition of the substance is unspecified, it cannot be said to amount to amphetamine and therefore it is not an extradition offence. Miss Brown has submitted that the unspecified chemical composition goes to purity. She submits that I cannot be sure that the substance is amphetamine as it goes on to read, 'not less than for one fix'. In my judgment the Requested Person is confusing whether there is evidence of an offence, which of course I am not entitled to look at in a Part 1 case, and whether or not an offence is an extradition offence. The warrant is clear that the Requested Person is sought for prosecution for possession of amphetamine. Whether there is evidence that the substances is amphetamine is a matter for the Polish Court and not for me. It is of course an offence for a person to possess amphetamine in this jurisdiction. I am satisfied so that I am sure that the allegation is an extradition offence within the meaning of sections 10 and 64(3)."

I consider that both his reasoning and his conclusions are correct. The conduct occurred in Poland; the conduct would constitute an offence in the United Kingdom, namely the offence of possession of amphetamine contrary to section 5 of the Misuse of Drugs Act 1971; and the offence is punishable in Poland with a maximum sentence of 3 years' imprisonment.Section 10 is therefore satisfied in this case by section 64(3) and the District Judge was right. There is no inconsistency. The words "of unspecified chemical composition and weight", in my judgment, go to the amount and purity of the amphetamine involved rather than to whether or not the relevant substance was or contained amphetamine. This, it seems to me, is clear from the words immediately following the disputed phrase, namely "but not less than enough for one fix".

I accept Miss Brown's submission that the particulars given clearly demonstrate conduct that would constitute an offence in this jurisdiction. It is unnecessary and inappropriate for the court to be required to examine the sufficiency of the available evidence to sustain a successful prosecution. In my judgment, the court needs to find only that the conduct...