R Przemyslaw Ciesielski v District Court in Kalisz, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lloyd Jones |
| Judgment Date | 20 May 2011 |
| Neutral Citation | [2011] EWHC 1503 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/841/2011,Case No. CO/841/2011,CO/12114/2010 |
| Date | 20 May 2011 |
[2011] EWHC 1503 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lloyd Jones
Case No. CO/841/2011
Mr Martin Henley (instructed by Messrs Pollecoff Solicitors) appeared on behalf of the Claimant
Ms Amelia Nice (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
This is an appeal by Mr Przemyslaw Ciesielski pursuant to section 26 of the Extradition Act 2003 against the decision of District Judge Riddle made on 25th January 2011 to order his extradition to Poland.
The surrender of the appellant is sought by the Polish judicial authority pursuant to two European Arrest Warrants pursuant to Part 1 of the Extradition Act 2003. Warrants were issued on 28th May 2010 and certified on 16th June 2010.
The first warrant relates to six offences. The appellant is sought for the purposes of executing sentences of imprisonment in relation to four offences, for which a total sentence of 22 months remains to be served. The appellant is further sought for the purpose of conducting a criminal prosecution in respect of two offences of fraud. If convicted, the maximum sentence for the two further offences are terms of five and eight years' imprisonment respectively. The offences are said to have been committed between 2000 and 2002. That summary is without prejudice to the consideration of the issues which have arisen at the hearing today.
The second arrest warrant relates to three offences and the appellant is sought for the purpose of conducting a criminal prosecution in respect of one offence of theft and two offences of fraud. If convicted, the maximum sentences for the offences are terms of five years and eight years' imprisonment respectively. Those offences are alleged to have been committed in 2004.
The appellant was arrested on 11th October 2010 at St Ives in Cornwall and produced for an initial hearing in the City of Westminster Court on 13th October. He was represented at the hearing. The defence sought the appellant's discharge under section 4(3) of the Act but that application was unsuccessful.
Issues were raised concerning section 20 in relation to the first warrant and section 14 in relation to the second warrant. On 3rd November, the defence applied to adjourn the hearing for legal representation, maintaining those arguments. On 24th November, the matter was again adjourned, pending legal representation. The issues remained section 20 and section 14. On 22nd December 2010, the appellant appeared unrepresented and he applied to adjourn the hearing to allow him to obtain legal representation. The adjournment was granted, but the District Judge noted that the matter must proceed on the next occasion. On 25th January 2011, the appellant again appeared unrepresented and again applied to adjourn the hearing to obtain legal representation. That application for an adjournment was refused.
The District Judge noted that the appellant had had ample opportunity to resolve his legal aid position. The matter then proceeded to the extradition hearing. The appellant gave evidence. His case was essentially that he should not be extradited because he had a young family to support in this country and a business here which he had worked hard to develop. At the end of the hearing, the judge ordered the appellant's extradition.
At the hearing below, it appears from a note of the hearing, the appellant explained that he had been living in the United Kingdom for the past seven years. He had worked and paid taxes. He lived with his family and he explained that he regretted everything which had happened in the past. His daughter had been born in the United Kingdom. He was fighting hard to keep his business going. He said that he wanted to time to organise his life and promised to return voluntarily to Poland to serve the sentence in due course. He said that if he was not allowed further time he would go bankrupt and his business would not survive. He knew he had to serve his sentence and he would do that but he wanted time to save his business.
In his ruling, District Judge Riddle said that he accepted as factually correct everything which the appellant had told him. He referred to a potential argument which had been raised at the hearing in relation to passage of time. He considered that matter and concluded that it would be neither unjust nor oppressive to return the appellant to Poland. The other matter which had been canvassed at the hearing was a right to a retrial. The judge considered that, as Poland is a signatory for the European Convention on Human Rights, it was required to comply with Article 6 and, if Mr Ciesielski could demonstrate on his return that his absence from the hearing was not voluntary, then he would have a right to a retrial.
The judge found that there were no bars to extradition and that the appellant's extradition was compatible with his rights under the European Convention on Human Rights. Accordingly he ordered his extradition.
The original grounds of appeal were drafted by the appellant himself and relate essentially to his Article 8 ground that his extradition to Poland would be a disproportionate interference with his right to family life. He explains that he had met and married his wife in this country, and that they had a daughter who was born in 2005. They started to run their own business together, a restaurant, in July 2010. In order to do that, they had taken a bank loan of over £20,000. He explains that if he were extradited his wife would have to close the business and she would have no other means to support herself and their daughter. He says that if he were extradited there would be nobody else to look after them. Therefore, he says, his extradition would be disproportionate to the private and family life which he has established in the United Kingdom and would be a breach of Article 8.
Yesterday Mr Henley, who now appears on behalf of the appellant, served his skeleton in which he seeks to advance further grounds of appeal. In addition to the Article 8 point, he makes a number of submissions and they have been developed to a certain extent this morning before me. These further grounds, which all relate to the first warrant, are, first, that it is not possible to include within the same European Arrest Warrant both accusation cases and conviction cases. He points to the distinction between the two categories of case within the structure of the Extradition Act 2003 and submits that the first warrant is defective because it appears to relate to matters in respect of which the defendant has been convicted and also to matters in respect of which he is now accused and in respect of which his return is sought so that he can stand trial. Secondly, he submits that it is not possible on the face of the warrant to identify which of the six charges are said to be conviction matters and which are said to be accusation matters. In addition to that he submits that it is not possible to relate each of the six charges to a specific decision made by the judicial authority.
A further ground which he seeks to advance now for the first time can be dealt with at this point briefly. He submits that offence four in the first warrant is not an extradition offence. The sentence imposed was one of two months and therefore the case does not fall within section 65 of the Extradition Act 2003.
Ms Nice, who appears on behalf of the judicial authority, accepts that that is correct, and does not resist the appeal on that ground in relation to charge 4 on warrant one only. Accordingly in due course I propose to allow the appeal to that extent.
So far as the other new grounds are concerned, I am entirely satisfied that it is appropriate for this court to consider those matters which bear directly on the decision made by the judge below and the lawfulness of the return of this appellant.
I turn then to Mr Henley's submission that the first warrant is defective because it includes both accusation and conviction matters. Mr Henley, in making this submission, starts with a concession that the Framework Decision does not draw a distinction between accusation and conviction matters in the same way that the 2003 Act does. Accordingly he accepts that under the Framework Decision it is perfectly permissible to include in a single warrant both conviction matters and accusation matters. However, he says that the court must proceed by reference to the statute and the statute goes beyond the requirements of the Framework Decision. In particular, he draws attention to section 2(2):
"(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)."
He points to the fact that there is then a dichotomy between conviction matters and accusation matters and in the subsections which follow different requirements are imposed in relation to the information which is to be included in the warrant depending on whether the matter is an accusation matter or a conviction matter.
The lynchpin of his argument is the word "or" in section 2(2). He says that the warrant must contain either the statement referred to in subsection (3) or the...
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