Pelka v Judge Radomir Boguszewski Regional Court in Gdansk Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 29 November 2012 |
| Neutral Citation | [2012] EWHC 3989 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9690/2012 |
| Date | 29 November 2012 |
[2012] EWHC 3989 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/9690/2012
Ms R Kapila (instructed by Kaim Todner) appeared on behalf of the Claimant
Ms R Scott (instructed by CPS) appeared on behalf of the Defendant
This is an appeal against the decision of District Judge Snow, given on 10 September 2012, ordering the appellant's removal to Poland to face seven offences. Six of them alleged money laundering, the money in question being the proceeds derived from the smuggling of cannabis from Holland to the United Kingdom. One of the charges, number 6, alleged the direct involvement in the smuggling of some 9 1/2 kilograms of cannabis from Holland to the United Kingdom.
The ground upon which the appeal is brought is that the arrest warrant does not comply with section 2(4)(c) of the 2003 Act. This requires that the information contained in the warrant provides particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence, and any provision of the law of this Category 1 Territory under which the conduct is alleged to constitute an offence.
Section 2(4)(c) is an implementation of Article 8 of the framework decision. Paragraph 1 of Article 8 provides as follows:
"The European Arrest Warrant should contain the following information set out in accordance with the form contained in the annexe:
(a) The identity and nationality of the requested person;
(b) The name address and telephone fax numbers and e-mail address of the issuing judicial authority,
(…)
(e) The description of circumstances in which the offence was committed including the time, place and degree of participation in the offence by the requesting person".
The words "the conduct alleged to constitute the offence" are the transcription of the degree of participation. The approach that is to be adopted by the Court in considering 2(4)(c) has been set out by Cranston J in Ektor v National Public Prosecutor of Holland [2007] EWHC 2316 (Admin). His words have been applied and accepted as the correct approach subject to one small proviso which I will deal with in most subsequent cases. What Cranston J said so far as material is this:
"(…) The Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."
The small reservation is one that comes from observations of Calvert-Smith J in Kopycki v Provisional Court of Lodz Poland [2012] EWHC 722 Admin, where he says:
"9. The phrase from the passage I have just quoted 'and what involvement the person named in the warrant had' might be thought to be overstating the position slightly. A person charged as a principal to a particular offence will no doubt know in this jurisdiction that he is facing an accusation involving an incident on a particular day or between particular dates, but it may be that the evidence in the possession of the prosecution may point to a number of possible conclusions as to the degree of his involvement.
10. If one takes an incident in which a number of people are involved in an attack on another in the street in which both stab wounds and blunt weapon injuries are caused, there may be differences between the witnesses as to who did what (…)."
All he is indicating there is that the precise nature of the involvement may not be needed; indeed, it is not needed. What Cranston J was intending to cover by the use of the words "what involvement the person named had" was, no doubt, what is contained in Article 8, that is to say the degree of participation and what section 2(4)(c) provides itself, namely the conduct alleged to constitute the offence.
Certainly, where involvement in a conspiracy is alleged, it is not necessary to include any great detail as to the precise acts committed in furtherance of the conspiracy. But, as a general proposition, it seems to me that a warrant ought to indicate, at least in brief terms, what is alleged to have constituted the involvement or the participation of the individual in question. It seems to me that, prima facie, simply to say there was a conspiracy and he conspired with others is to do whatever the end result of the offence is, is likely not to be sufficient. Indeed, if one looks at the case of Kopycki itself, one sees that that approach is likely to have appealed to Calvert-Smith J.
In that case, there were in fact two offences alleged. The first was between October 2004 and March 2005 in a place in Poland, and other locations in Poland and other countries, the appellant took part in an organised criminal group led by a named person, together with known and unknown persons. The group committed offences by smuggling considerable quantities of narcotic drugs in the form of cocaine in the territory of the European Union.
The second was between the same dates in Poland, Spain and other countries, he took part in trading in narcotic drugs in the form of cocaine. The quantity of cocaine was at least 3 kilogrammes. The suspect acted for his financial profit in the conditions of an organised criminal group. It was accepted in that case that both those charges ought to be read together. Indeed, it is common ground that in approaching a warrant which sets out a number of offences, in particular, the warrant as a whole must be taken...
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