Powierza v District Court, Warszawa, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett: |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] EWHC 36 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9035/2012,CO/9035/2012 |
| Date | 17 January 2013 |
[2013] EWHC 36 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/9035/2012
Manjit S. Gill QC and Unnati Bhatt (instructed by Guney Clark Ryan Solicitors) for the Appellant
Ben Isaacs (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 6 th December 2012
Introduction
The Appellant's extradition is sought by the District Court in Warszawa, Poland, on a European Arrest Warrant ('EAW') issued on 3 December 2009 and certified by the Serious Organised Crime Agency ('SOCA') on 7 April 2010.
He is a 37-year old Polish national who has a partner in the UK (also a Polish national) and a child from that relationship. He has two children by another relationship in Poland.
The warrant is a "conviction warrant" and the Appellant's return is requested in order for him to serve 1 year, 11 months and 2 days outstanding on a 2-year sentence for two offences arising out of the same incident on 30 September 2000 when he assaulted a police officer by hitting him in the stomach and used threatening behaviour against the same officer.
The EAW shows that the sentence was imposed by the Regional Court for Warszawa Praga 3rd Criminal Department on 9 September 2004 and suspended for a 5-year probationary period. The file number for the decision was specified in the EAW.
The Appellant left Poland to come to the UK in April 2006.
The EAW indicates that on 8 February 2007 the Regional Court for Warszawa Praga-Pólnoc in Warsaw ordered the "execution of the penalty of 2 (two) years imprisonment" pursuant to the ruling referred to in paragraph 4 above. No further details of the circumstances giving rise to the decision to "execute" the sentence were given.
The Appellant was arrested on 27 May 2012 and on 22 August 2012 District Judge Coleman, at Westminster Magistrates Court, ordered the Appellant's extradition. He appeals against that order.
The principal point taken is that when he was convicted on 9 September 2004 he was convicted by a court of which one member was an "assessor". The Polish Constitutional Court on 24 October 2007 held that a court in which an assessor was involved violated the constitutional principle of the need for an independent judiciary. The background to that ruling is referred to in detail in Henryk Urban and Ryszard Urban v. Poland— 23614/08 [2010] ECHR 1903, [19–24], and is summarised by Collins J in Wisniewski v Regional Court in Elbag, Poland [2012] EWHC 3040 (Admin) at [3–13], a case in which Miss Unnati Bhatt raised a similar argument to that raised in this case, albeit without reference, it seems, to all the authorities to which my attention has been drawn. The focus of the argument she presented was based upon Article 6 considerations whereas the focus, at least initially in the present case, is upon section 2 of the 2003 Act (see paragraph 7 below). I will return to those two particular cases below (see paragraphs 32–40).
Mr Manjit Gill QC and Miss Bhatt argue that the effect of this is that the EAW is not valid since the Appellant has not been convicted by a "court" as required by section 2 of the Extradition Act 2003. In the alternative, it is contended that extradition pursuant to the EAW would result in a breach of the UK's obligations under Article 6 of the ECHR and, to the extent that it is necessary to rely upon it, a breach also of Articles 5 and 13. Finally, if both those arguments fail, it is said that the EAW did not comply with the requirements of section 2 in that it failed to provide any information as to the circumstances leading to the activation of the suspended sentence.
The certified translation of the conviction and sentence hearing by the District Court in Warszawa indicates that the "Chairperson" of the court was an "assessor" who sat with one other "bench judge" (or possibly two other "bench judges").
The Appellant was present and legally represented at that hearing. He took no point about the role of the assessor at the time or at any time subsequently in Poland.
The District Judge was invited not to order the Appellant's extradition on the basis of his and his family's Article 8 rights, but held that the public interest in extradition outweighed those rights. There is no appeal against that decision. The District Judge also rejected each of the grounds advanced before me. He had declined to receive in evidence a report from a Polish lawyer dealing with the issue of "assessors" in Polish courts proffered to him on the day he was due to give his judgment. He did, however, read it and took the view that it would not have taken the case any further. The report (which was before Collins J in Wisniewski) was from Mikolaj Pietrzak and dated 25 October 2012: it indicated that there is no remedy available to the Appellant in Poland to re-open the proceedings which led to his conviction. It was put before me without objection on the part of Mr Ben Isaacs for the Respondent and indeed there is no dispute that there is no remedy in Poland for the matter in respect of which the Appellant now seeks to complain.
I imagine that the view of the District Judge was much along the lines of the view of Collins J in Wisniewski when he said this at [18]:
"There is before me an expert report from a Polish advocate that simply confirms that as a result of the ruling of the Constitutional Court, coupled with the upholding of that ruling by the European Court of Human Rights, there will be no question of the appellant being able to re-open the decisions upon which the arrest warrant is based were he to be returned to Poland. But, in my view, that does not assist him because there can be no conceivable suggestion that, apart from the security of tenure issue, there was any prejudice to the appellant from the fact that it was assessors rather than judges with security of tenure who decided the case against him."
The principal point developed
Section 2 of the Extradition Act 2003 provides that in the case of a conviction warrant the EAW must contain a statement which complies with section 2(5). This (as amended) provides as follows:
"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."
Mr Gill and Miss Bhatt emphasise the words "by a court" and submit that, whatever the EAW may state, the reality is that the Appellant was not convicted by a truly independent and impartial court when judged by English standards of law and due process and, accordingly, the warrant should be treated as invalid. There is, it is contended, no basis for a lawful request to be made to another state under the EAW system under a conviction warrant against such a background.
They rely upon the proposition that the 2003 Act is designed to give effect to the EU Council Framework Decision (the 'EFD') of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA) and draw attention to paragraph 12 of the preamble which reads as follows:
"This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union …, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."
They contend that this means that states may rely on their own legal traditions concerning due process and that, accordingly, the common law should refuse to recognise as valid a decision made by someone who was not an independent judge. Such a decision, it is argued, represents the product of a fundamental collapse of procedure and is a flagrant denial of justice although, it is contended, the domestic law does not require for this purpose, as they put it, "the language of flagrancy". As I understood the argument, this was a secondary (and alternative) approach if the principal argument failed.
They acknowledge, by referring to Office of the King's Prosecutor, Brussels v Cando Armas and another [2006] 2 AC 1, that the strict approach to the construction of domestic legislation is not necessarily applicable to the construction of extradition treaties. They draw attention, however, to the following passage in the speech of Lord Hope of Craighead at [24]:
"In R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947 Lord Bridge of Harwich said that the...
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