Piotr Lagocki and Another v Regional Court in Szczecin, Poland and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Mr. Justice Coulson |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3641 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: Lagocki: CO/3854/2015 (APPEAL); CO/4937/2015 (JR) |
| Date | 17 December 2015 |
[2015] EWHC 3641 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd Jones
and
Mr. Justice Coulson
Case No: Lagocki: CO/3854/2015 (APPEAL); CO/4937/2015 (JR)
Case No: Tarabanovs: CO/3741/2015 (APPEAL); CO/4965/2015 (JR)
Regina on the application of
Mark Summers QC and Amelia Nice (instructed by Lawrence & Co.) for Lagocki
Mark Summers QC and David Williams (instructed by Saunders Solicitors Ltd.) for Tarabanovs
Gemma Lindfield (instructed by CPS Extradition Unit) for the Regional Court in Szczecin, Poland and for the Prosecutor General's Office, Republic of Lithuania
Clair Dobbin (instructed by the Government Legal Service) for the Westminster Magistrates' Court
Hearing date: 10 December 2015
There are before the court two appeals pursuant to section 26 of the Extradition Act 2003 and two applications for permission to apply for judicial review.
The extradition proceedings
Lagocki.
The extradition of Piotr Lagocki is sought by Poland pursuant to two conviction European Arrest Warrants ("EAWs").
The first EAW ("EAW1") concerns convictions for offences of kidnap (2001), possession of a firearm (2001) and obtaining property by deception (2004). The EAW states that Mr. Lagocki was present at his trials. He was sentenced respectively to one year, four months and one year, six months imprisonment. The remaining sentences to be served are one year, six months (kidnap) and six months (possession of a firearm). EAW1 was issued on 3 November 2014 and certified under section 2(7) of the 2003 Act on 4 November 2014. The Applicant was arrested on EAW1 on 14 November 2014. The extradition proceedings were however adjourned pending the outcome of domestic charges pursuant to section 22 of the 2003 Act.
The second EAW ("EAW2") concerns convictions for attempted robbery (1999) and controlling prostitutes for gain (1998–1999). Mr. Lagocki was convicted in his presence and sentenced to three years, six months imprisonment, a decision which became final on 17 October 2003. EAW2 was issued on 1 April 2015 and certified under section 2(7) of the 2003 Act on 5 April 2015. The Applicant was arrested on EAW2 on 24 April 2015 and proceedings under both EAWs were consolidated.
Before the Westminster Magistrates' Court, Mr. Lagocki resisted extradition under Articles 3 and 8 ECHR. The extradition hearing in respect of both EAWs was set down for 28 July 2015. On 28 July 2015 the extradition hearing went ahead in his absence and an order for his extradition was made.
Mr. Lagocki learned of the extradition order on 13 August 2015. On 14 August 2015 an application for permission to appeal against the extradition order under section 26 was lodged with the court. On 24 August 2015 Cranston J. refused permission to appeal. On 28 August 2015 Mr. Lagocki lodged an application to renew.
On 30 September 2015 the Applicant's case was joined to that of Vjaceslavs Tarabanovs.
In addition, by an application issued on 13 October 2015 Mr. Lagocki seeks permission to issue proceedings for judicial review against the Westminster Magistrates' Court seeking an order quashing the order for extradition and an order for a rehearing on the ground that the extradition hearing took place in his absence and is therefore a nullity.
Tarabanovs.
The extradition of Vjaceslavs Tarabanovs is sought by Lithuania pursuant to three accusation EAWs.
The first EAW ("EAW1") concerns allegations of racketeering and extortion (2011). EAW1 was issued in 10 October 2014 and certified under section 2(7) of the 2003 Act on 17 December 2014. The second EAW ("EAW2") concerns an allegation of theft (2011). EAW2 was issued on 18 December 2014 and certified under section 2(7) of the 2003 Act on 30 December 2014.
Mr. Tarabanovs was arrested on EAWs 1 and 2 on 5 January 2015.
Before the extradition hearing took place, Lithuania issued a third EAW ("EAW3") concerning an allegation of robbery (2012). EAW3 was issued on 13 January 2015 and certified under section 2(7) of the 2003 Act on 21 January 2015.
Mr. Tarabanovs was arrested on EAW3 on 29 January 2015. The proceedings on EAW3 were then joined to those on the other two warrants.
Mr. Tarabanovs resisted extradition under Articles 3 and 8 ECHR. The extradition hearing in respect of all three EAWs was initially set down for 7 April 2015 but eventually heard on 3 August 2015 before Westminster Magistrates' Court. The hearing took place in Mr. Tarabanovs' absence and an order was made for his extradition.
Mr. Tarabanovs learned later of the extradition order. On 7 August 2015 an application for permission to appeal against the extradition order under section 26 was lodged with the court. On 30 September 2015 his case was joined to that of Mr. Lagocki.
In addition, by an application issued on 14 October 2015 Mr. Tarabanovs seeks permission to issue proceedings for judicial review against the City of Westminster Magistrates' Court seeking an order quashing the order for extradition and an order for a rehearing on the ground that the extradition hearing took place in his absence and is therefore a nullity.
The legal framework
The purposes of the Council Framework Decision of 13 June 2002 (2002/584/JHA) include the following:
(1) The abolition of extradition between Member States and the introduction of a new simplified system of surrender which would make it possible to remove the complexity and potential for delay inherent in previous extradition procedures.
(2) Maintaining respect for fundamental rights and observing the principles recognised by Article 6 of the Treaty on European Union ("TEU") and reflected in the Charter of Fundamental Rights of the European Union ("the Charter") in particular Chapter VI.
Article 1(3) of the Framework Decision provides:
"This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."
Article 6(2) TEU provides that the European Union shall respect fundamental rights as guaranteed by the European Convention on Human Rights and as they result from constitutional traditions of Member States, as general principles of Union law.
Article 14 of the Framework Decision provides:
"Article 14
Hearing of the requested person
Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing Judicial authority, in accordance with the law of the executing Member State."
Effect is given to Article 14 of the Framework Decision by section 9, Extradition Act 2003 which provides in relevant part:
"9. Judge's powers at extradition hearing
(1) In England and Wales, at the extradition hearing the appropriate Judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person in respect of whom the Part 1 warrant was issued."
Section 11, Magistrates' Courts Act 1980 ("MCA 1980") provides in relevant part:
"11. Non-appearance of accused: general provisions.
(1) Subject to the provisions of this Act, where at the time and place appointed for the trial or adjourned trial of an information the prosecutor appears but the accused does not,
…
(b) if the accused has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so.
This is subject to sub-sections (2), (2A), (3) and (4).
(2) Where a summons has been issued, the court shall not begin to try the information in the absence of the accused unless either it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the summons was served on the accused within what appears to the court to be a reasonable time before the trial or adjourned trial or the accused has appeared on a previous occasion to answer to the information.
(2A) The court shall not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear.
…
(6) Nothing in this section requires the court to enquire into the reasons for the accused's failure to appear before deciding whether to proceed in his absence."
Accordingly, under the MCA 1980 there exists a statutory power to order extradition in a person's absence. Indeed in the case of a person over 18 years of age the court is required to proceed in the defendant's absence unless it appears to the court that it would be contrary to the interests of justice to do so. However, the court must not proceed in the absence of the accused if it considers that there is an acceptable reason for his failure to appear. Furthermore, nothing in section 11 MCA imposes an obligation on the court to enquire into the reasons for the accused's failure to appear before deciding whether to proceed in his absence.
Rule 17 of the Criminal Procedure Rules 2014, in force at the time of the decisions in these cases, dealt specifically with extradition and provided in relevant part:
"Exercise of magistrates' court's powers
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