Rafal Adamczewski v District Court in Jelenia Gora Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 08 August 2014 |
| Neutral Citation | [2014] EWHC 2958 (Admin) |
| Docket Number | CO/2475/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 August 2014 |
[2014] EWHC 2958 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/2475/2014
Miss M Westcott (instructed by Wainwright Cummins LLP) appeared on behalf of the Appellant
Mr N Hearn (instructed by the Crown Prosecution Service Extradition Unit) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Coleman made on 27 May 2014 at the Westminster Magistrates' Court. He ordered the appellant's extradition to Poland on a conviction European Arrest Warrant. That had been issued out of the District Court in Jelenia Gora, Poland on 10 March 2009. The appellant's extradition is sought to serve a sentence of imprisonment of 8 months.
The warrant describes the offence as falling within Article 286(1) of the Polish Penal Code, which reads, in translation:
"One who aims at deriving material advantage through making another person misapply own or someone else's property as a consequence of deliberate misinformation or taking advantage of one's misunderstanding of steps being taken, is subject to the imprisonment for the period of 6 months up to 8 years."
The conduct is described as follows:
"In the period between 15 January 2002 and 24 January 2002 in Kowary and Jelenia Gora, Lower-Silesian Province, acting intentionally in continuity of action and in order to obtain financial profit he caused to the bank PKO BP S.A. Department in Jelenia Gora to misapply its property in the amount of 9,057.12 zl (nine thousand and fifty-seven 12.100 PLN) as having possessed personal savings account no [and the number follows] in the said bank he used to take out money by the card VISA Elektron and used to pay for goods, however he had not possessed any financial means on the said account. He acted to the detriment of PKO BP S.A. Department in Jelenia Gora and he committed the abovementioned offence …"
The warrant states that the appellant had previously been sentenced in 1999 for breaches of section 279(1) and 286(1) of the Penal Code. The Framework List marked in the warrant indicates that the conduct can be categorised as money laundering and carries a maximum sentence of at least 3 years' imprisonment.
Before the District Judge it was contended on behalf of the appellant that the European Arrest Warrant did not disclose an extradition offence. It was also submitted on behalf of the appellant that extradition would amount to a disproportionate interference with his and his family's rights under Article 8 of the European Convention on Human Rights.
The District Judge considered the background. The appellant had been present at the time of his conviction but failed to surrender to prison in September 2003 when required to do so. He also recorded that through his lawyers the appellant had unsuccessfully applied for a pardon in 2008.
The appellant in his written proof of evidence explained that the debt to the bank had been assigned to another financial institution and that he had more than repaid it the amount owing.
The District Judge considered the application of section 65 of the Extradition Act 2003 ("the 2003 Act"). Subsections (2) and (3) read as follows:
"(2)The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a)the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;
(b)a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;
(c)the certificate shows that a sentence of imprisonment or another form of detention for a term of 12 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.
(3)The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a)the conduct occurs in the category 1 territory;
(b)the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c)a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."
The District Judge concluded that the Polish authorities must have considered that money laundering was the correct box to tick rather than fraud and "it is not for this court to question that decision or to impose on Poland our own understanding and definition of those words. It is not a manifestly wrong categorisation as it involves money and dishonesty". It is now accepted that the conduct described in this warrant goes nowhere near meeting the definition of money laundering. In Poland that would be very similar to the definition in England and Wales as a result of the Money Laundering Directive 2005/60/EC. It is also accepted that the judge had mistakenly thought that section 65(2) of the 2003 Act applied. That is not the case since the sentence imposed was less than 12 months. The District Judge continued as follows:
"If I am wrong in that decision, I have considered the wording used in the EAW to describe the conduct proven against [the appellant]. … The point is made that the conduct alleged, which amounts to deliberately and dishonestly overdrawing your own bank account, would probably be dealt with as a civil matter in the UK. That does not mean...
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