R Soltysiak v Judicial Authority of Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bean |
| Judgment Date | 23 March 2011 |
| Neutral Citation | [2011] EWHC 1338 (Admin) |
| Date | 23 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13005/2010 |
[2011] EWHC 1338 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR. Justice Bean
Case No: CO/13005/2010
Mr Jones appeared on behalf of the Claimant
Mr Sternberg (instructed by CPS Extradition Unit) appeared on behalf of the Defendant
On 14 December 2010 District Judge Grant, sitting at the Westminster Magistrates' Court, ordered the appellant's extradition to Poland pursuant to Part 1 of the Extradition Act 2003. He was to be returned to serve a sentence of 1 year that had been imposed by the Polish District Court on 14 June 2005 for two offences of violence and also a sentence of 1 year 6 months imposed by the same court on 26 May 2006 for two offences of being in possession of material that had been created in breach of Polish copyright law. No issue was raised before the District Judge as to whether the copyright offences were extradition offences as defined by the Act. That is, however, the subject of the appeal. There is no appeal against the District Judge's decision to order extradition in respect of the offences of violence.
The first question I have to decide is whether the extradition offence issue can be raised for the first time on appeal. The appellant was represented before the District Judge by a duty solicitor who, in a frank and helpful witness statement has said, and I accept, that she did not spot the point which is sought to be raised before me. Nor did the District Judge. It involves a fairly detailed examination of copyright law and is not an area with which one would expect even the district judges authorised to hear extradition requests or the duty solicitors attending the City of Westminster Magistrates' Court to be aware.
For the Polish authorities, Mr Sternberg resisted the application to raise the extradition offence issue for the first time on appeal. He referred to the decision of the Divisional Court in Szombatheley District Court and Others v Roland and Kalman Fenyvesi [2009] EWHC 231 (Admin) in which the President, Sir Anthony May, emphasised the importance of litigants producing all their evidence and advancing their whole case at first instance. That was a case concerning fresh evidence and the meaning of the phrase found in sections 27 and 104 of the Act:
"Evidence… that was not available at the extradition hearing."
This court applied the principles of the doctrine in Henderson v Henderson to applications to call fresh evidence on appeal in an extradition case, but that is not the issue here.
In Hoholm v Norway [2009] EWHC 1513 (Admin) the Divisional Court, Stanley Burnton LJ and Wilkie J, had to decide exactly the question which is raised before me. The fugitive in that case had appeared before a Senior District Judge at Westminster Magistrates' Court, who ordered her extradition to Norway. There was no argument before him that the requirement of double criminality was not satisfied. In the Divisional Court the requesting government argued that it was too late for the matter to be raised for the first time on appeal and referred to the Fenyvesi case and the subsequent decision in Kalniets v Latvia [2009] EWHC 534. Stanley Burnton LJ said that the procedural issue, as he described it, did not appear to have been decided before. After referring to Fenyvesi and noting that it was a fresh evidence case rather than a case about a fresh point of law, he went on, at paragraphs 18 and 19:
"In the present case the appellant does not seek to adduce any new evidence. Her case has been made by reference to the documents before the District Judge. Her appeal is therefore not affected by the requirement that new evidence should not have been available at the extradition hearing. If, contrary to my view, the double criminality issue was 'raised' before the District Judge, she was entitled to argue before this court that that requirement was not satisfied. Section 104 does not in terms compel the court to allow an appellant to raise an issue that was not raised at the extradition hearing.
Its provision is negative, precluding the court from allowing an appeal if the applicable statutory conditions are not satisfied. However, it seems to me to be significant that section 104 distinguishes between a new issue and new evidence. I would therefore hold that where an issue is available to be raised by an appellant on the evidence adduced at the extradition hearing, she is in general, if not always, entitled to raise that issue on appeal to this court even though the issue was not raised at that hearing.
In any event, I see no good reason why the appellant should not be permitted to argue the issue before this court. Extradition is an infringement of liberty, and while the court is concerned to ensure that those who are the subject of conforming requests for extradition are lawfully extradited, the legal requirements for extradition are safeguards that must be observed."
The conclusion of the Divisional Court in that case is that the issue raised on behalf of the appellant on her appeal was:
"…one that would have resulted in the District Judge deciding the question of whether the offence specified in the request for her extradition was an extradition offence differently, and if he had so decided that question, he would have ordered her discharge."
Her appeal was therefore allowed.
I observe that in that case the decision to allow the new point to be raised on appeal was part of the ratio of the case, because had the court not so decided they could not have allowed the appeal.
In contrast is the case of Mehtab Khan v the United States of America [2010] EWHC 127 (Admin), again a decision of the Divisional Court, on which Mr Sternberg relied. In that case, the fugitive had the good fortune to be represented by leading counsel at the hearing before the District Judge. A point had been available to be argued. Leading counsel took a deliberate decision not to argue the point, since he was of the view it would not succeed. He argued other points. The District Judge, however, ordered extradition. On appeal, Mr Khan instructed a different and equally distinguished QC who raised the point before the Divisional Court. They held that the point was a bad one, but before doing so Griffith Williams J (with whom Thomas Lj agreed) had referred to the Hoholm issue in these terms:
"39. As it is a pre-condition for the admission of fresh evidence that it either did not exist at the time of the extradition hearing or was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained, it follows that the party seeking to rely upon it must satisfy the court that there is a good reason or excuse for not calling that evidence at that extradition hearing. (See Miklis v Lithuania). For my part I would have considered that a similar pre-condition will apply when an issue is raised that was not raised at the extradition hearing. [He then cited paragraph 19 of the judgment in Hoholm, which I have already read out]."
Griffith Williams J said that he found the distinction which Stanley Burnton LJ had drawn between a new issue and new evidence difficult to follow. He went on at paragraphs 42 to 44 to say this:
"42. Section 104 provides the conditions which must be satisfied before an appeal may be allowed; it provides...
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