Poland v Machon

JurisdictionScotland
Judgment Date09 July 2010
Docket Number2B145/10
Date09 July 2010
CourtSheriff Court

Neutral Citation: [2010] ScotSC 119

Scottish Sheriff Court

2B145/10

Poland
and
Machon

Appearances: K Nicol (Crown Office International Unit for the District Court in Lublin, Poland) for Poland; Sheldon (Capital Defence Lawyers, Edinburgh) for Machon.

Issue: Whether extradition would breach M's Art 3 rights, having regard to the state of prisons in Poland.

Facts: M was arrested by the Polish authorities in December 1994 and remained in custody until May 1996. M reached an agreement with the Polish prosecutor that he would plead guilty to certain charges in exchange for a lesser sentence. The case was concluded in 1997 or 1998 and he was sentenced to 2 years, 8 months' imprisonment. M had served 1 year, 3 months and 8 days of his sentence.

M came to the UK in January 2006. An EAW was issued by the District Court in Lublin on 5 February 2008 when it became apparent that M was abroad.

On 3 February 2010, the case was first called at Edinburgh Sheriff Court. Extradition was opposed on the basis of the poor conditions in Polish prisons. There were various hearings and delays between 11 February and 9 July, during which M remained in custody.

In April 2010, M received a letter from his previous cell-mate stating that the poor conditions in Polish prisons had not changed and that prisons in Scotland were like a hotel in comparison.

On 6 May 2010, it was submitted that the refusal of legal aid to conduct enquiries into current and likely future Polish prison conditions and the limited general information available on prison overcrowding rates resulted in an inequality of arms. The Judge considered that M had had sufficient time to seek legal aid funding and that a Devolution Minute would only delay proceedings; and that his rights were adequately protected by s21. The Judge concluded that, in view of the EAW Framework arrangements and the assurances given by the Requesting State, M did not face a real risk of his Art 3 rights being violated if extradited to Poland. M appealed that decision.

Judgment:
Introduction

1. This case arises out of an EAW which was issued by the District Court in Lublin, Poland in respect of the accused. The EAW was granted on 5 February 2008 and concerned a charge of stealing Mercedes cars. Extradition was opposed on the basis that Polish prisons remained poor and if returned to Poland to serve the sentence of imprisonment which had been imposed the accused's Art 3 rights would be violated. The warrant alleged that the accused had been sentenced to 2 years 8 months' imprisonment and there was a sentence of 1 year, 3 months and 8 days outstanding.

Procedural History

2. The case first called at Edinburgh Sheriff Court on 3 February 2010. The accused accepted that he was the person named in the warrant but did not consent to extradition and preliminary and full hearings were fixed. Bail was refused as the accused was considered to be a flight risk.

3. At the Preliminary Hearing on 11 February a motion to adjourn the Full Hearing set for 19 February was refused. A further Preliminary Hearing was assigned for 16 February to allow parties to make further enquiries. A motion for bail was again refused.

4. On 16 February Mr Sheldon appeared for the first time and moved to discharge the Full Hearing fixed for 19 February. The motion was opposed but granted and a fresh diet fixed for 4 March 2010. Bail was again applied for but refused.

5. At the Full Hearing on 4 March a defence motion to adjourn was not opposed and new dates for the case were fixed. This was to allow time to carry out further investigations. The accused was remanded in custody there being no application for bail.

6. At the next calling of the case on 18 March I presided for the first time. The hearing was continued to 30 March and there was no application for bail. On 30 March I was advised by counsel that further enquiries were ongoing into the areas of dispute and sanction was being sought from SLAB. I adjourned the hearing until 14 April and after hearing parties refused bail.

7. On 14 April the Full Hearing was again adjourned to 6 May and bail was refused. I again presided on 6 May when I refused to admit a Devolution minute and proceeded to deal with the case in terms of s10 of the Extradition Act 2003. The accused began to give evidence in relation to s21 of the 2003 Act. The Hearing was adjourned before his evidence in chief was completed due to lack of court time and the need to produce documents which were in his possession at prison. The case was continued to 25 May and the accused was remanded in custody there being no application for bail.

8. On 25 May 2010 the Lord Advocate objected to the production of letters which the accused wished to speak to in evidence which he claimed were received from friends who were currently incarcerated in Polish prisons. After hearing parties I allowed the letters to be admitted in evidence and continued the case to 25 June to allow the Lord Advocate to consider her position and make further enquiries. I considered a renewed request for bail but refused to admit the accused to bail and he was remanded in custody until 25 June.

9. At the Hearing on 25 June 2010 the accused concluded his evidence in chief and was cross examined. After hearing lengthy submissions from parties I made avizandum and continued the case until 9 July. I again considered a request for bail at this time but refused to admit the accused to bail and he was remanded in custody.

Issues raised at the Extradition Hearing

10. At the Hearing on 6 May 2010 Counsel for the accused sought to lodge Devolution Minute in light of the decisions of the Appeal Court issued on 4 May in the cases of Kropiwnicki v HM Advocate[2010] Extradition LR 307 and Engler v HM Advocate[2010] Extradition LR 304. This motion was opposed by the Lord Advocate. The Minute narrated that sanction for legal aid, to investigate the conditions of specific prisons in Poland that the accused might be sent to if extradited, had been refused. Efforts to secure up-to date evidence by other means in Poland had been unsuccessful. It appeared that an appeal against the refusal of legal aid had been unsuccessful on 12 April. Counsel could not explain satisfactorily why a Devolution Minute had not been lodged when the case called previously on 14 April. Counsel accepted that it had been open to seek a judicial review of SLAB's decision but had chosen not to follow this course as other avenues for securing evidence had been attempted. Contacts with Polish solicitors had ceased abruptly presumably when it became clear funding for work in this context was not available.

11. Counsel's submission was that the refusal of legal aid to conduct enquiries into current and likely future Polish prison conditions and the limited general information available on prison overcrowding rates there meant that there was an inequality of arms.

12. Ms Nicol argued that the Devolution Minute should not be admitted as there was no good reason for it to be received at this time which would involve further adjourning the proceedings. I was referred to McAllister & Ors v HM Advocate Appeal Court, 11 December 2009. Paragraph 7 confirms the test to be applied is that set out in Transo Plc v HM AdvocateSC[2004] SC(J) 29, Lord Hamilton at para 44. To succeed on this point the accused would need to show that proceedings would necessarily bring about a breach of Convention rights, or would inevitably result in the proceedings as a whole being unfair. The accused would have to demonstrate this is one of those rare and isolated cases. Reference was also made to para 9 where the Court stated there was no general entitlement to further or additional assistance to satisfy the principle of equality of arms.

13. I was then referred to Baranauskas v Ministry of Justice of the Republic of Lithuania[2010] Extradition LR 35. In para 11 Silber J noted that the appellant in that case had made t2wo unsuccessful applications for legal aid funding and concluded there was no basis for believing that another application would succeed. Ms. Nicol submitted the circumstances were identical to the present case.

14. I took the view that the accused had had sufficient time to seek legal aid funding and I considered allowing a Devolution Minute to be received at this stage would only delay proceedings. I considered the accused's rights were adequately protected by s21 and since the Hearing could not be concluded on 6 May there was further time to prepare the case. It was clear from other cases that a Devolution Minute could be submitted at a later stage on another basis if necessary.

15. Accordingly I refused to admit the Devolution Minute in terms of Rule 40.5 of the Act of Adjournal and ordered the Hearing to proceed. I was reminded by Ms Nicol that the accused had accepted at the initial hearing on 3 February that he was the person named in the warrant however he did not consent to extradition. Accordingly I required to consider the terms of s10 of the 2003 Act.

16. The EAW was in respect of a single charge of contravening Art 291, 294 and 12 of the Polish Penal Code by acting with others between August 1993 and January 1994 in Lublin and...

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