Piotr Tadeusz Korcala v Polish Judicial Authority

JurisdictionEngland & Wales
JudgeMr Justice Nicol,Lord Justice Beatson
Judgment Date07 February 2017
Neutral Citation[2017] EWHC 167 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date07 February 2017
Docket NumberCase No: CO/3475/2016

[2017] EWHC 167 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Beatson

Mr Justice Nicol

Case No: CO/3475/2016

Between:
Piotr Tadeusz Korcala
Appellant
and
Polish Judicial Authority
Respondent

Alun Jones QC and Martin Henley (instructed by Lewis Nedas) for the Appellant

Ben Lloyd (instructed by CPS Extradition Unit) for the Respondent

Hearing dates: 20 th January 2017

Approved Judgment

Mr Justice Nicol
1

This extradition appeal involves essentially two questions:

i) If a person has been found incapable of committing a criminal offence in the country in which he was tried because of mental illness, but has been ordered to be detained indefinitely in a mental hospital, has he been 'convicted' for the purposes of Part 1 of the Extradition Act 2003 (' EA')?

ii) If that person then flees the mental hospital and is wanted for a prosecution for that offence, would there be an equivalent offence if the events had taken place in England so that the double criminality requirement is satisfied and the offence qualifies as an 'extradition offence'?

2

By an application to amend the Notice of Appeal, the Appellant, Piotr Tadevsz Korcala, also wishes to argue that it would be contrary to his rights under Article 8 of the European Convention on Human Rights to extradite him given the length of time that he has spent on remand pending the determination of Poland's requests for his extradition.

3

The appeal is against the decision of District Judge Zani who, on 6 th July 2016 ordered the Appellant to be extradited to Poland on two European Arrest Warrants ('EAWs'). EAW1 was an accusation warrant. It alleged that on 19 th December 2015 the Appellant had fled the closed psychiatric ward of a mental hospital by climbing through a toilet window. EAW2 was a conviction warrant and alleged that the Appellant had been ordered by the Krakow District Court to be detained indefinitely in a secure mental hospital on 24 th March 2009. He had faced charges of murder (on 21 st May 2006), robbery (on 20 th February 2006) and damage to an ambulance (on 28 th May 2006), but, following the presentation of reports as to the Appellant's mental illness (schizophrenia and cross-addictions to narcotics and alcohol), the criminal proceedings had been discontinued and his detention in a mental hospital had been ordered instead.

4

In considering the arguments dealt with by the District Judge, it is sufficient for me to refer exclusively to the matters which are pursued on the present appeal.

5

EAW1 (the accusation warrant) required the District Judge to consider whether the offence for which Poland wished to prosecute the Appellant was an 'extradition offence' – see EA s.10. For an accusation EAW, this expression is defined in EA s.64 and, relevant to the present case, particularly s.64(3)(b), namely,

'the conduct would constitute an offence under the relevant part of the United Kingdom if it occurred in that part of the United Kingdom'.

6

In this case the Judicial Authority argued that, if the same events as occurred on 19 th December 2015 had occurred in England, the Appellant would have committed the common law offence of escape. The District Judge accepted this argument. Having dismissed other objections to EAW1, the District Judge, as I have said, ordered the Appellant's extradition on that warrant.

7

EAW2 (the conviction warrant) required the District Judge to consider whether the warrant satisfied the requirements of EA s.2. So far as is relevant to this case, s.2 provides,

'(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains…

(b) the statement referred to in subsection (5) and the information referred to in subsection (6)….

(5) The statement is one that —

(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is —

(b) particulars of the conviction…

(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.'

8

Here the District Judge found that the order made by the Polish Court in 2009 had been 'another form of detention' within s. 2(5)(b) which was sufficient for EAW2 to be a warrant which satisfied EA s.2. Again, after considering other matters which are not relevant to the present appeal, the District Judge ordered the Appellant to be extradited on this warrant as well.

Would the allegations in EAW1 amount to an extradition offence?

9

In answering this question it was common ground that the court's task was to consider the essence of the alleged acts and the substance of the criminality charged, ignoring the adventitious circumstances connected with the alleged conduct – see Norris v Government of the USA [2008] 1 AC 920.

10

In the present case, as I have said, the Respondent argued that, if the events had taken place in England, the common law offence of escape would have been committed.

11

In E v DPP [2002] EWHC 433 (Admin) the Divisional Court (Kennedy LJ and Forbes J.) adopted and approved a passage from the then current edition of Archbold Criminal Pleading, Evidence and Practice 2002 and said at [9],

'In order to establish the offence, it is necessary for the prosecution to prove the following three elements: (1) that at the material time the defendant was in custody; (2) that the custody was lawful; and (3) that the defendant escaped from that lawful custody.'

12

Later in his judgment Forbes J. turned to the question of what amounted to 'custody'. He said,

'19. I agree with Mr Spackman [counsel for the Appellant]'s submission that whether a person can be said to be in custody at any particular time is a question of fact to be decided by reference to the circumstances of each individual case. "Custody" is an ordinary English word, which should be given its natural and ordinary meaning, subject, of course, to any special meaning given to it by statute. In the Shorter Oxford English Dictionary the word "custody" is defined in the following terms, amongst others: "confinement, imprisonment, durance."

20. As it seems to me, for a person to be in custody, his liberty must be subject to such constraint or restriction that he can be said to be confined by another in the sense that the person's immediate freedom of movement is under the direct control of another. Whether that is so in any particular case will depend on the facts of that case.'

13

Paragraph 19 was quoted by David Steel J. in the Court of Appeal Criminal Division case of R v Dhillon [2006] 1 WLR 1535 at [16].

14

Mr Alun Jones QC for the Appellant argues that the common law offence applies only where the defendant is in custody pursuant to criminal proceedings or a criminal sentence. That was the immediate context of E v DPP and Dhillon. He argues that it would be wrong to extend the meaning of custody to other contexts. He refers us to what Lord Bingham said in R v Rimmington [2006] 1 AC 459 in the context of the common law offence of public nuisance. At [33] Lord Bingham said,

'There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done. If the ambit of a common law offence is to be enlarged, it "must be done step by step on a case by case basis and not with one large leap": R v Clark (Mark) [2003 2 Cr App R 363 [13].'

15

He argues that people subject to compulsory detention in mental health hospitals must have absconded frequently in the past and yet there is no recorded instance of a prosecution for the common law offence of escape. That suggests that the common law offence is not so broad as to cover such a situation and to enlarge it now would be an example of the large leap which Lord Bingham condemned.

16

Mr Jones also submitted that, in this country, the Mental Health Act 1983 drew a distinction between compulsory detention, on the one hand, and 'custody' on the other. He comments that a person may be 'sectioned' (i.e. compulsorily admitted to a mental hospital under s.2 of the 1983 Act) without a court order. A hospital order may be made by a Crown Court under s.37 of the Act and an Interim Hospital Order could be made by the Crown Court under s.38. Both provide for the detention of the person concerned – see s.37( 1), s.38(4) and the effect of such orders is to authorise the managers of the hospital to admit and detain him — see s.40(1)(b).

17

Mr Jones drew attention to s.137 of the Mental Health Act 1983 which says,

'(1) Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under s.42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.

(2) A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as a constable.'

Mr Jones submitted that this...

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1 cases
  • Adrian Walaszczyk v Regional Court of Law in Czestochowa, Poland
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 8 April 2020
    ...of liberty’, as the principled benchmark for “imprisonment or … form of detention”: cf. Korcala v Polish Judicial Authority [2017] EWHC 167 (Admin) at paras 37–38, 51. Ms Townshend also draws to my attention the abuse of process analysis of the Supreme Court in Zakrzewski v Regional Court ......

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