Pisarek v Regional Court in Elblag
| Jurisdiction | England & Wales |
| Judge | Griffith Williams J,Toulson LJ |
| Judgment Date | 23 March 2010 |
| Neutral Citation | [2010] EWHC 877 (Admin) |
| Date | 23 March 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/832/2010 |
[2010] EWHC 877 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Toulson
Mr Justice Griffith Williams
CO/832/2010
MR J ATLEE (instructed by ATLEE CHUNG) appeared on behalf of the Claimant
MISS L RAFTER (instructed by THE CROWN PROSECUTION SERVICE) appeared on behalf of the Defendant
MR JUSTICE GRIFFITH WILLIAMS: Following his conviction of two offences of assault and drug offences, the appellant, who was on bail, was sentenced in his absence on 18 August 2006 at the Regional Court in Elblag 11, Criminal Division, Poland, to 18 months’ imprisonment, of which 1 year, 1 month and 17 days remain to be served.
He came to this country in October 2006. On 18 November 2007, a Domestic Arrest Warrant was issued. On 14 January 2008, a European Arrest Warrant was issued. This was certified by the Serious Organised Crime Agency on 23 March 2009. The appellant was arrested on 6 January 2010, and on 15 January 2010, in the City of Westminster Magistrates’ Court, District Judge Caroline Tubbs ordered his extradition to Poland.
He appeals against that order on the following grounds: first, that, as he was not legally represented at the hearing on 15 January 2010, he was deprived of his Article 6 rights; secondly, that his extradition would be incompatible with his Article 3 rights, and so barred by section 21 of the Extradition Act 2003 —although a ground of appeal was that his extradition would be incompatible with his Article 8 rights, that ground of appeal has been abandoned; thirdly, that the European Arrest Warrant did not satisfy the requirements of section 2 of the Act; and fourthly, that a copy of the warrant was not given to him as soon as practicable after his arrest, in breach of the provisions of section 4(2), of the Act.
As the lawfulness of the European Arrest Warrant is a condition precedent to any extradition proceedings, I shall consider that ground of appeal first. Section 2(5) and section 2(6) of the Act, and in particular paragraph (e) of section 2(6) of the Act, provide that, in the case of someone who is unlawfully at large, the European Arrest Warrant must contain particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence. The submission made is that the warrant specifies only the aggregate sentence for all of the offences, and does not specify the sentences for the individual offences and so one or more of the sentences may be for less than 4 months (see section 65(3) of the Act), and so not qualify as an extradition offence. For the reasons given by Lord Hope of Craighead in his opinion in Pilecki v the Circuit Court of Legnica Poland [2008] UKHL 7, there is nothing in that submission; in short, section 2(6)(e) must be read with the modifications specified in the Schedule to the Multiple Offences Order 2003, and to sections 10 and 65 of the Act.
Mr Atlee submitted that, notwithstanding that decision, the warrant is nonetheless defective, and so unlawful, because there are inconsistencies as to the offences in respect of which the appellant was sentenced. The point, taken shortly, is that the certificate issued by the Serious Organised Crime Agency specifies offences different to those specified in the warrant.
It is necessary to consider the terms of the warrant, which can be done quite briefly, because, on my reading of the warrant, the point made by Mr Atlee has, in fact, no substance. His submission is that, on the reading of the warrant, there are six offences but on reading the warrant, it is perfectly clear that there are two offences of assault, both committed on the night of 11 March 2006 and 12 March 2006 in a park in Ilawa, Poland, the first against an identified complainant who sustained an undisplaced nasal fracture, the second against an identified complainant who sustained bruising. The confusion seems to have arisen because both offences were expressed to have been committed within 5 years of the commission of an earlier offence of violence. The drug offences are identified in the warrant as one series of offences, and it is clear that the drug offences related to the possession of and the supply of amphetamine to others.
For those reasons, there is, in my judgment, no substance in the argument as to the form of the warrant, and, in my judgment, it complies with the provisions of section 2 of the Act.
The second point taken about the warrant is the failure to provide the appellant, as soon as reasonably practicable, with a copy of that warrant, as required by section 4(4) of the Act. There is no issue that the appellant was not provided with the warrant, and the attendance note of the solicitor who acted for the appellant on 7 January is agreed. That records that a submission was made that the appellant should be discharged because of non-service of the warrant, and the district judge said:
“I find the warrant was not served, but this is a post-conviction warrant, no prejudice. I use my discretion not to discharge”.
There is an issue as to further findings of fact made by the District Judge, which I consider it unnecessary to detail. In my judgment, it must be a matter of inference that the appellant knew full well of the proceedings in Poland; knew that he was due to be sentenced; knew that he had been sentenced; and it was for that reason that he left the jurisdiction of the Polish courts. In my judgment, the decision of the District Judge, one for the exercise of his discretion, cannot be criticised. It was a decision which, on the same facts, I would have reached myself.
The appellant was brought before the Magistrates’ Court on 7 January, as I indicated earlier. The solicitor's attendance note records that the appellant did not consent to extradition and raised Article 3 and Article 8 issues as bars to extradition. Bail was refused and the hearing adjourned to 15 January. The submission made is that, on 15 January, the appellant was informed by the District Judge that he had not been granted a Legal Representation Order, and so, contrary to his expectations, he had no legal representation. It is submitted that, in the absence of that legal representation, and the time to prepare his case, he was not equipped properly to identify the issues and represent himself. It was submitted that his case needed careful preparation, and it follows that there was inequality of arms at the extradition hearing. These are matters, it is submitted, which amounted to unfairness in breach of Article (2) of the Framework Decision of 13 June 2002, and so constituted an abuse of process.
Reliance is placed upon that part of the judgment of the Lord Chief Justice, Lord Phillips, in R (Governor of the United States of America) v Bow Street Magistrates’ Court [2007] 1 WLR at 1157, at paragraph 84, where the Lord Chief Justice set out the four stage procedure which is required to be taken when an abuse of process is alleged. As part of that four stage procedure, the judge is required to consider whether the conduct, if established, is capable of amounting to an abuse of process. The note of...
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