Poland V. Marcin Osinski
| Jurisdiction | Scotland |
| Judge | Sheriff F.R. Crowe |
| Court | Sheriff Court |
| Date | 23 February 2010 |
| Published date | 24 February 2010 |
Court reference 2B1379/09
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003
POLAND v MARCIN OSINSKI (date of birth 22/11/85 ) Prisoner in HM Prison Saughton, Edinburgh
Act Mr. V Lunny Crown Office International Unit for the Regional Court of Piotrkow Tybunalski, Poland
Alt Mr. Govier Advocate instructed by Mr. Good of Messrs. Good + Stewart, Solicitors, Edinburgh
Edinburgh 23rd February 2010
The Sheriff having resumed consideration of the request made under the provisions of the Extradition Act 2003 by the Republic of Poland for the extradition of Marcin Osinski, Prisoner in HM Prison Saughton, Edinburgh answers in the AFFIRMATIVE the question in section 21(1) of said Act, finds that the Lord Advocate is not acting in a manner incompatible with said Marcin Osinski's Convention rights under Article 3, refuses the Devolution Minute and orders in terms of section 21(3) of the said Act, that the said Marcin Osinski be extradited to Poland conform to the warrant of even date.
NOTE
Introduction
[1] This case involves a European Arrest Warrant which was issued by the Polish authorities in respect of the accused. The EAW was issued on 10th August 2009 and concerned a charge of opening lockfast places with intent to steal. Extradition was opposed on the basis that overcrowding was systemic in Polish prisons and if returned to Poland to serve the sentence of imprisonment which had been imposed the accused's Article 3 rights would be violated. A Devolution Minute was lodged in similar terms.
Procedural History
[2] The case first called at Edinburgh Sheriff Court on 23 November 2009. A Notional Hearing was fixed for 2 December to allow time for further investigation into Scottish criminal matters which might be pending involving the accused and bail was refused. On 2 December a Preliminary Hearing was assigned for 9 December and a Full Hearing was fixed for 15 December and the accused was admitted to bail. On 9 December the case was duly continued to 15 December but on that date the accused failed to appear and a warrant was granted for the arrest of the accused. The accused however re-appeared on 18 December 2009 and new Preliminary and Full Hearing dates were fixed for 12 January and 10 February 2010 respectively and the accused's bail order was continued.
[3] On 12 January 2010 the accused again failed to appear and the case was continued until 18 January for the accused to appear personally. A request for an arrest warrant made by the Prosecutor was continued meantime. On 18 January the accused appeared and was granted bail to his current address at 18/4 Wester Hailes Park, Edinburgh and a further Preliminary Hearing was fixed for 8 February.
[4] On 8 February the case was continued to the Full Hearing previously fixed for 10 February on joint motion and following the Prosecutor's motion the accused's bail was withdrawn by me and he was remanded in custody as it appeared he had been charged with a criminal offence in Scotland while on bail for these proceedings. A Devolution Minute was lodged with the court on 9 February. No appearance was entered by the Advocate General.
[5] On 10 February 2010 a request from the accused for a further adjournment was refused and the Full Hearing commenced. Evidence was heard from the accused in connection with section 11 of the Extradition Act 2003. Due to the lateness of the hour the case was adjourned until 12 February at 2pm for the Full Hearing to conclude. Parties were heard in respect of section 21 of the 2003 Act and the case was adjourned at 6pm on that date until 23 February in order that I might consider my decision. Bail which had been withdrawn on 8 February continued to be refused and the accused was remanded in custody.
Procedure at the Extradition Hearing
[6] At the initial calling of the case on 23 November 2009, the accused confirmed that he was the person named in the warrant and having read the contents of the warrant did not consent to extradition. The question posed at section 7(2) of the 2003 Act was answered in the affirmative and accordingly the hearing commenced at a consideration of section 10 of the 2003 Act.
[7] The European Arrest Warrant was in respect of a charge of contravening section 278§1 of the Polish Penal Code said to have been committed on 25 April 2004 at Belchatów, Poland. Although the charge is not one listed as a framework offence, it is punishable by a maximum of three years' imprisonment in Poland and the accused had apparently been sentenced to one years' imprisonment by the District Court at Belchatów on 20 September 2004. The offence was committed in Poland and the crime charged is also an offence in Scotland which would be libelled as opening lockfast places with intent to steal therefrom. Accordingly it was submitted that section 65(3) of the 2003 Act applied. There was agreement that the offence was indeed an extradition offence and so I answered the question posed in section 10(2) of the 2003 Act in the affirmative.
Was there any bar to extradition?
[8] I proceeded in terms of section 10(4) to section 11 of the 2003 Act to consider whether there were any bars to extradition. The accused's position was that the terms of the EAW were incorrect in that the sentence of one year's imprisonment said to have been imposed on 20 Septembe r 2004 had in fact been a sentence of two years' imprisonment suspended for five years. The accused had tried through relatives to obtain a copy of the relevant court record but had been unable to do so and sought further time for this purpose. I refused this motion in light of the history of the case and the numerous adjournments that had been granted previously. It appeared that the accused had raised the matter with his solicitors only on 22 January 2010.
[9] The Prosecutor relied on the terms of the EAW and in addition in terms of section 202(2) and (5) of the 2003 Act produced an e mail dated 10 February which he had obtained from his Polish EUROJUST colleague confirming that in respect of the EAW offence, court reference II K 392/04, the accused was sentenced to one year's imprisonment which initially was suspended but the court ordered the prison sentence to be served on 13 September 2005. In response the accused was called by the defence to give evidence on this point which was maintained amounted to a bar to extradition on the ground of speciality in terms of section 11(f) of the 2003 Act.
[10] The accused's evidence was that when he was living in Poland in 2004 he was charged by the police with the offence contained in the EAW of breaking into a pizzeria and stealing or attempting to steal garden furniture. Earlier in June 2003 he had been convicted of a charge of theft by shoplifting and had received a sentence of one year's imprisonment suspended for four years. His understanding was that he received a sentence of two years' imprisonment suspended for five years for the present offence after pleading guilty.
[11] Mr. Osinski said that he had read the EAW only briefly when he was arrested in November 2009 and it was only in January this year when seen by his solicitors that he read its terms more closely and saw the sentence specified in the warrant was incorrect. In cross examination Mr. Osinski said that he had been convicted of a third offence in Poland in October 2005 but could not remember what sentence he received. He left Poland shortly afterwards and came to live in the United Kingdom in November 2005.
[12] Mr. Osinski said that occasionally he had been in trouble in Poland as a result of binge drinking with friends. When he came to the United Kingdom his drink problem became more serious but none the less he had a clear recollection of the present case and was sure he had been sentenced to a two year suspended sentence rather than a sentence of one year's imprisonment.
[13] I found the accused's evidence unreliable. While it is difficult to remember certain dates and facts after a period of years it was clear on his own testimony that he had breached the terms of any suspended sentence that had initially been imposed for the EAW offence. (This position was confirmed by the e mail produced by the Prosecutor). On the accused's own testimony he might be at risk of facing a two year sentence of imprisonment in light of the further conviction he admitted to. The terms of the EAW were clear that a one year sentence fell to be served for the offence. The accused's position changed between examination in chief and cross examination and I did not consider it raised a reasonable doubt in the face of the information contained in the EAW and supporting e mail. I might have hesitated had the position been reversed and the accused was maintaining a lesser sentence stood to be served. It was clear on his testimony after cross examination that the present sentence had initially been suspended and the subsequent conviction had rendered it live. It seemed clear the accused had then left Poland to escape being imprisoned for the first time.
[14] Accordingly I did not consider that the accused's extradition was barred by reason of speciality. The present EAW was the only proceedings before me and although in terms of the accused's evidence, if reliable, there might be other warrants outstanding in Poland the only request made by the Polish authorities was the one contained in the EAW and there seemed no reason why, if any other such warrant was outstanding it could not have been contained in the EAW or made the subject of a separate EAW for consideration at the same time. If the accused's extradition was to be ordered it could only be in respect of the EAW offence before this court. I therefore answered the question posed in section 11(1) of the 2003 Act in the negative and in terms of subsection 11(4) moved on to section 20 of the 2003 Act.
[15] It was a matter of agreement that the accused had been present in court when the EAW offence had...
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