Radoslaw Korzynski v Regional Court of Bialystok (Poland)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 17 February 2022 |
| Neutral Citation | [2022] EWHC 350 (Admin) |
| Docket Number | Case No: CO/2448/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 350 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/2448/2021
Rebecca Hill (instructed by Lawrence & Co Solicitors) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 17/2/22
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This is an in-person hearing of a renewed application for permission to appeal in an extradition case. The Appellant is aged 28 and is wanted for extradition to Poland. That is in conjunction with a mixed extradition arrest warrant (“ExAW”) issued on 10 September 2020, on which he was arrested on 10 March 2021, and to which the new post-Brexit arrangements apply. The ExAW relates to a series of crimes or alleged crimes for which his extradition to serve sentence or face trial is sought. That index offending is a series of similar frauds. Extradition was ordered by SDJ Goldspring (“the Judge”) on 9 July 2021 after an oral hearing on 15 June 2021. Permission to appeal was refused on the papers on 15 November 2021 by Sir Ross Cranston. A stay on the section 2 point of principle in the Wozniak case was granted but that ground has fallen away in light of the Divisional Court's final determination in that case.
Section 20 and a substituted sentence
There is a single point on which permission to appeal is sought. It relates to one of the criminal matters constituting the index offending. It would not therefore result in discharge of the ExAW but, rather, discharge of the Appellant in relation to one of the constituent elements of the ExAW. The relevant element were frauds which were said to have been committed at the end of November 2015. The Appellant was convicted and sentenced, in his absence, on 13 July 2016. He had been summoned on 1 July 2016, and he had agreed in writing to the sentence which was subsequently imposed. It was described as a “restriction of liberty” and it is clear from the papers, as Ms Hill submits, that it was a 12 month community sentence with conditions. At a subsequent hearing on 13 January 2017 there was substituted for the 12 month community sentence a custodial sentence of 182 days. The basis for the substituted custodial sentence was the breach by the Appellant of the conditions of the community sentence. Ms Hill emphasises that the sentence imposed on 13 January 2017 was a distinct and substituted sentence; that it was the determination of a custodial sentence; and that it was not the activation of a suspended sentence of imprisonment.
The argument for discharge advanced on the Appellant's behalf runs by reference to section 20 of the Extradition Act 2003. Ms Hill, who did not appear below, accepts that the argument was not raised before the Judge on behalf of the Appellant. Although it may be said that the extradition court has a responsibility to consider all possible bars to extradition, and that the Respondent bears the onus to the criminal standard of satisfying applicable criteria in relation to those bars (including section 20), Ms Hill rightly accepts that the Judge cannot possibly be criticised in the present case for not dealing with the specific point, which was not raised. However, it has been raised now. It is, in my judgment, appropriate that this Court should address the point on its merits, when considering whether to grant permission to appeal.
The premise: Ardic distinguished
The argument has a premise. The premise is that the section 20 protections are applicable to the hearing on 13 January 2017, as a distinct part of the “trial”. So far as that is concerned, Ms Hill distinguishes the decision of the Luxembourg court (the CJEU) in Ardic Case C-571/17 PPU (22 December 2017), and relies on the reasoning of the court in its judgment in that case, and on the reasoning in the two cases both decided by that court on 10 August 2017, which are discussed in the Ardic judgment. They are Tupikas Case C-270/17 PPU and Zdiaszek Case C-271/17 PPU. Ardic decided that a hearing which was concerned with the activation of a suspended custodial sentence would not attract the protections (domesticated in this jurisdiction by means of section 20). Ms Hill's argument is that such a conclusion would not follow in the case of a distinct custodial sentence following breach of the conditions of the community sentence. She submits that such a sentence, as in the present case, constitutes a “material change” in the “nature and quality” of the sentence previously imposed. She also submits that there is, in principle, a continuity as to the post-Brexit legal application of the EU Framework Decision 2002/584-based standards, as identified in the Luxembourg case, given the deliberate equivalence in the language (under the new TCA and under the Framework Decision Article 4a), especially given that the underlying root for the principled application of the legal safeguards in this area is Article 6 of the ECHR (see Ardic at §74).
In my judgment, so far as the premise is concerned, Ms Hill has identified a reasonably arguable legal analysis which there is a realistic prospect that this Court would at a substantive hearing accept. She tells me, and I accept from her, that she has not been able to uncover any post- Ardic case which addresses whether it is applicable, or to be distinguished, in the context of a sentence of custody imposed following breach of the conditions of a community sentence. She told me, and I accept from her, that a case called Murin v Czech Republic [2018] EWHC 1532 (Admin) was another case about activation of a suspended sentence, the reasoning in which does not materially assist as to the present issue. In some respects, custody that is imposed following a breach of the conditions of a community sentence may be thought to be very similar to custody which is imposed following the breach of the conditions of a suspended sentence. But there are clearly differences otherwise the two. After all, otherwise, the two distinct types of sentence would not exist. Only one of them involves the prior imposition of a “custodial” sentence, albeit suspended. In my judgment, one only has to examine the reasoning of the Luxembourg court in Ardic at §§67 and 75 to see the emphasis being placed on “the custodial sentence imposed” and “the decision determining the custodial sentence to be served”, as to which the Luxembourg court was making the link to the Strasbourg case law on Article 6 ECHR (§75). There are other reference points in Ardic which are relevant to the argument constituting Ms Hill's premise. One is the “distinction between measures which modify the quantum of the penalty imposed and measures relating to the methods for execution of such a penalty” (§40). Another way of putting the matter, emphasised by Ms Hill, is her ‘material or fundamental change to the nature and quality of the sentence’. It is unnecessary to say more, or to cite further passages from the trilogy of Luxembourg cases.
The consequence: Stryjecki §§50(vi) and (vii)
In advancing her section 20 argument Ms Hill must, however, succeed not only on her premise but also as to the consequence which flows from it if that premise is legally correct. For the purposes of today, she needs only to demonstrate that it is reasonably arguable that she could prevail so far as that consequence is concerned. I bear in mind: that threshold of arguability; and also the Respondent's onus and the criminal standard that apply so far as concerns section 20 safeguards and “deliberate absence” in particular...
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