Pomiechowski v District Court in Legnica, Poland and another (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burnett |
| Judgment Date | 09 November 2012 |
| Neutral Citation | [2012] EWHC 3161 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2104/2011,CO/2104/2011 |
| Date | 09 November 2012 |
[2012] EWHC 3161 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Burnett
Case No: CO/2104/2011
Mr Ben Watson (instructed by Kaim Todner) for the Claimant
Miss Corine Bramwell (instructed by CPS) for the Defendant
Hearing date: 24 October 2012
The Hon
Introduction
This is an appeal against the order made on 2 March 2011 by the district judge sitting at the City of Westminster Magistrates' Court whereby he ordered the extradition of the appellant to Poland. The appellant had been arrested pursuant to two European Arrest Warrants ["EAW"]. The first was issued on 11 May 2006 by the district Court of Legnica and the second on 23 December 2009 by the District Court for Wroclaw. The first concerns a number of convictions and accusations. The second concerns only an accusation. There is limited information before this court concerning what happened before the district judge. In a statement prepared in these proceedings the appellant states that he was taken to the City of Westminster Magistrates' Court on 25 January 2011. His solicitor sought an adjournment to enable a "passage of time" argument to be run. At the hearing on 2 March 2011 the solicitor apparently suggested that further time was required to prepare the case and sought a further adjournment. That was refused. The hearing went ahead. The appellant did not consent to his extradition but no bars to extradition were raised.
The appellant sought to appeal to the High Court. The question arose whether his appeal was in time. That issue was resolved against the appellant in the Divisional Court: see Pomiechowski v. District Court of Legnica, Poland [2012] 1 WLR 391; but in his favour in the Supreme Court: [2012] 1 WLR 1604. The Supreme Court remitted the appeal to the High Court for determination.
The original grounds were drafted by the appellant himself and have been superseded with permission by amended grounds drafted by Mr Watson. They are:
(i) The EAW issued on 11th of May 2006 is invalid because it fails to satisfy the requirements of section 2 of the Extradition Act 2003 ["the 2003 Act"]. This ground has two components. First, that the warrant fails to provide 'particulars' as required by that provision and is thus invalid. Secondly, that the warrant seeks the extradition of the appellant both in respect of convictions and an accusation, which it is suggested that the structure of the 2003 Act does not permit.
(ii) The extradition of the appellant pursuant to either warrant is barred by the passage of time, within the meaning of the 2003 Act.
The Law
Poland is a Category 1 territory for the purposes of the 2003 Act. Extradition to such territories is governed by Part 1 of the 2003 Act. Section 2 specifies the information which a document must contain for it to be an arrest warrant:
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains –
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that –
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, 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 prosecuted for the offence.
(4) The information is –
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(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 –
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(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.
The focus of Mr Watson's submissions is upon section 2(6)(b) and whether the first EAW contains the necessary particulars of the convictions.
Part 1 of the 2003 Act was enacted to fulfil the obligations imposed upon the United Kingdom by 'Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States'. Article 8 of that Decision specifies the content and form of an EAW in language slightly different from section 2:
"Content and form of the European arrest warrant
1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a) the identity and nationality of the requested person;
(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;
(c) evidence of an enforceable judgement, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in respect of Article 2;
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;
(g) if possible, other consequences of the offence.
2. …."
The annex referred to contains a pro forma, which was used in this case. Box (b) of the pro forma makes provision for details to be provided of both arrest warrants and enforceable judgments.
It is common ground that a document cannot be considered to be an EAW unless it complies with section 2(2) of the 2003 Act. As Lord Hope of Craighead put it in Dabas v. High Court of Justice in Madrid, Spain [2007] 2 AC 31 at paragraph [50],
"I want to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
In Sandi v. The Craiova Court, Romania [2009] EWHC 3079 (Admin) the question was whether a conviction warrant should contain the same particulars required by section 2(4)(c) in respect of an accusation warrant (conduct, time, place of the offence etc). In other words, whether the phrase 'particulars of conviction' in section 2(6)(b) should be read as to require the same specificity as section 2(4)(c). In rejecting the submission on the basis that after a trial and conviction such matters are known to the person concerned, Hickinbottom J, with whom Moses LJ agreed, indicated that the particulars provided must include the court and date of conviction but went on to observe:
"33. The appropriate level of particularity to satisfy section 2(6)(b) will depend upon the circumstances of each case. In relation to how far a warrant has to go in relation to particularity, I echo Dyson LJ's caution in Von der Pahlen (at [22]); it would be unwise to attempt a prescriptive answer to that question, nor do I seek to do so.
34. However, adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for – and to enable him to consider whether any bars to extradition might apply. In the light of that I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted – and some information about when and where the offences were committed, and the requested person's participation in them, although not necessarily in the same level of detail as would be required in an accusation...
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