Polish Judicial Authorities v Adam Celinski and Others
|England & Wales
|Lord Thomas of Cwmgiedd, CJ
|06 May 2015
| EWHC 1274 (Admin)
|Case No: CO/2785/2014, CO/321/2015, CO/5383/2014, CO/6022/2014, CO/5026/2014, CO/5889/2014, CO/5892/2014, CO/2270/2014
|Queen's Bench Division (Administrative Court)
|06 May 2015
 EWHC 1274 (Admin)
The Lord Chief Justice of England and Wales
Lord Justice Ryder
Mr Justice Ouseley
Case No: CO/2785/2014, CO/321/2015, CO/5383/2014, CO/6022/2014, CO/5026/2014, CO/5889/2014, CO/5892/2014, CO/2270/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM WESTMINISTER MAGISTRATES' COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Julian Knowles QC and Adam Payter (instructed by CPS) for the Polish and Slovakian Judicial Authorities
Hugh Southey QC and Kate O'Raghallaigh (instructed by Lansbury Worthington) for Celinski
Nicholas Hearn (instructed by Gordon, Shine & Co) for Pawelec
Alun Jones QC and Natasha Draycott (instructed by Kaim Todner) for Nida
Gavin Irwin (instructed by Edward Hayes) for Ciemiega
Amelia Nice (instructed by Bullivants) for Cambal
Ben Lloyd (instructed by the Secretary of State) in Inglot
Peter Caldwell for the Government of Poland in Inglot
Daniel Jones (instructed by Lansbury Worthington) for Inglot
Hearing date: 3 March 2015
This is the judgment of the court.
It is clear that in the majority of cases in extradition proceedings under Part I of the Extradition Act 2003 (the 2003 Act) defendants now seek to rely on Article 8 of the European Convention on Human Rights to resist their extradition to other states within the European Union. Out of 479 cases in which an extradition hearing was scheduled to take place in the period of 3 months from 17 March 2015, all but 18 of these were requests by judicial authorities of EU Member States. Out of these 461 cases involving EU Member States, reliance was clearly being placed on Article 8 in 280 cases; it was likely that it would be relied on in further cases. It was the best estimate of the Chief Magistrate (who kindly carried out the survey for the court) that Article 8 would be relied on in between 350–400 cases over the following three months. It was the view of the Chief Magistrate, based on his own experience and that of the judges who conduct extradition hearings, that Article 8 was relied on in about 120 cases a month. Appeals are very frequently brought to this court in relation to such decisions. That frequency can be judged by the fact that it is ordinarily necessary each week for a Divisional Court and 1–2 High Court Judges sitting alone to hear appeals under the 2003 Act.
Prior to the decision of the Supreme Court in Article 8: see paragraphs 168–9 of the judgment of Lord Wilson in ., , it was only in a rare case that reliance was placed on In the period of just under three years, as the information set out above indicates, the position in Westminster Magistrates' Court has very significantly changed. This change in the practice is noted in the recent House of Lords Select Committee Report: Extradition UK Law and Practice (HL paper 126, 10 March 2015).
We therefore heard together several appeals under the 2003 Act (either brought by judicial authorities seeking the extradition of defendants or by defendants resisting their extradition) as they raised common issues in relation to Article 8 as applied by the judges at the extradition hearing and on appeal to this court. We also heard an appeal in relation to s.21A of the Extradition Act and a judicial review of a decision under the Extradition Act 1989 to extradite to Poland a Polish national resident in the Isle of Man which raised an issue under Article 8.
Before setting out the facts and our conclusions in relation to the appeals, it is necessary first to consider the approach that should be taken at the extradition hearing by the District Judge and then consider the proper approach on an appeal.
The approach of a court at the extradition hearing
(a) The general principles in relation to Article 8
The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in two decisions of the Supreme Court: , and .
In Article 8 was whether the interference with private and family life of the person whose extradition was sought was outweighed by the public interest in extradition. Baroness Hale summarised the effect of the decision in at paragraph 8; in subparagraphs (3) (4) and (5), she made clear that the question raised under There was a constant and weighty public interest in extradition that those accused of crimes should be brought to trial; that those convicted of crimes should serve their sentences; that the UK should honour its international obligations and the UK should not become a safe haven. That public interest would always carry great weight, but the weight varied according to the nature and seriousness of the crime involved. This was again emphasised by Baroness Hale at paragraph 31, by Lord Judge at paragraph 111 (where he set out a number of passages to this effect from ) and at paragraph 121, Lord Kerr at paragraph 141; Lord Wilson at paragraphs 161–2 and 167.
It is clear from our consideration of these appeals that it is important that the judge in the extradition hearing bears in mind, when applying the principles set out in and , a number of matters.
First, concerned three cases each of which involved the interests of children: see in particular the judgment of Baroness Hale at paragraphs 9–15, 24–25, 33–34, 44–48, 67–79, 82–86; Lord Mance at paragraphs 98–101; Lord Judge at paragraphs 113–117, 123–132; Lord Kerr at paragraphs 144–146; Lord Wilson at paragraphs 153–156 and 170. The judgments must be read in that context.
Second the public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice. We would expect a judge to address these factors expressly in the reasoned judgment.
Third the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect. Part I of the 2003 Act gave effect to the European Framework Decision of 13 June 2002; it replaced the system of requests for extradition by Governments (of which the judicial review before the court in respect of the Polish national is a surviving illustration). The arrangements under Part I of the 2003 Act operate between judicial authorities without any intervention of governments. In applying the principles to requests by judicial authorities within the European Union, it is essential therefore to bear in mind that the procedures under Part I (reflecting the Framework Decision) are based on principles of mutual confidence and respect between the judicial authorities of the Member States of the European Union. As the UK has been subject to the jurisdiction of the CJEU since 1 December 2014, it is important for the courts of England and Wales to have regard to the jurisprudence of that court on the Framework Decision and the importance of mutual confidence and respect.
Fourth, decisions on whether to prosecute an offender in England and Wales are on constitutional principles ordinarily matters for the independent decision of the prosecutor save in circumstances set out in authorities such as , ; challenges to those decisions are generally only permissible in the pre-trial criminal proceedings or the trial itself. The independence of prosecutorial decisions must be borne in mind when considering issues under Article 8.
Fifth, factors that mitigate the gravity of the offence or culpability will ordinarily be matters that the court in the requesting state will take into account; it is therefore important in an accusation EAW for the judge at the extradition hearing to bear that in mind. Although personal factors relating to family life will be factors to be brought into the balance under Article 8, the judge must also take into account that these will also form part of the matters considered by the court in the requesting state in the event of conviction.
Sixth in relation to conviction appeals:
i) The judge at the extradition hearing will seldom have the detailed knowledge of the proceedings or of the background or previous offending history of the offender which the sentencing judge had before him.
ii) Each Member State is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide; currency conversions may tell little of the real monetary value of items stolen or of sums defrauded. For example, if a state has a sentencing regime under which suspended sentences are passed on conditions such as regular reporting and such a regime results in such sentences being passed much more readily than the UK, then a court in the UK should respect the importance to courts in that state of seeking to enforce non-compliance with the terms of a suspended sentence.
iii) It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been. As Lord Hope said in ... at
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