Republic Of Poland V. Dariusz Machon Prisoner In The Prison Of Hm Prison, Saughton, Edinburgh
| Jurisdiction | Scotland |
| Judge | Sheriff F.R. Crowe |
| Court | Sheriff Court |
| Date | 09 July 2010 |
| Published date | 09 July 2010 |
Court reference 2B145/10
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003
REPUBLIC OF POLAND v DARIUSZ MACHON (date of birth 23/02/66) Prisoner in HM Prison Saughton, Edinburgh
Act Ms. K Nicol Crown Office International Unit for the District Court in Lublin, Poland
Alt Mr. Sheldon, Advocate instructed by Ms.C. Beattie of Capital Defence Lawyers, Edinburgh
Edinburgh 9th July 2010
The Sheriff having resumed consideration of the request made under the provisions of the Extradition Act 2003 by the Republic of Poland for the extradition of Dariuz Machon, Prisoner in HM Prison Saughton, Edinburgh answers the question posed in section 21(1) of the Extradition Act 2003 in the AFFIRMATIVE and in terms of section 21(3) of the said Act orders that the said Dariusz Machoń be extradited to the Republic of Poland conform to the warrant of even date.
NOTE
Introduction
[1] This case arises out of a European Arrest Warrant which was issued by the District Court in Lublin, Poland in respect of the accused. The EAW was granted on 5th February 2008 and concerned a charge of stealing Mercedes cars. Extradition was opposed on the basis that Polish prisons remained poor and if returned to Poland to serve the sentence of imprisonment which had been imposed the accused's Article 3 rights would be violated. The warrant alleged that the accused had been sentenced to 2 years 8 months' imprisonment and there was a sentence of 1 year, 3 months and 8 days outstanding.
Procedural History
[2] The case first called at Edinburgh Sheriff Court on 3 February 2010. The accused accepted that he was the person named in the warrant but did not consent to extradition and preliminary and full hearings were fixed. Bail was refused as the accused was considered to be a flight risk.
[3]] At the Preliminary Hearing on 11 February a motion to adjourn the Full Hearing set for 19 February was refused. A further Preliminary Hearing was assigned for 16 February to allow parties to make further enquiries. A motion for bail was again refused.
[4] On 16 February Mr. Sheldon appeared for the first time and moved to discharge the Full Hearing fixed for 19 February. The motion was opposed but granted and a fresh diet fixed for 4 March 2010. Bail was again applied for but refused.
[5] At the Full Hearing on 4 March a defence motion to adjourn was not opposed and new dates for the case were fixed. This was to allow time to carry out further investigations. The accused was remanded in custody there being no application for bail.
[6] At the next calling of the case on 18 March I presided for the first time. The hearing was continued to 30 March and there was no application for bail. On 30 March I was advised by counsel that further enquiries were ongoing into the areas of dispute and sanction was being sought from SLAB. I adjourned the hearing until 14 April and after hearing parties refused bail.
[7] On 14 April the Full Hearing was again adjourned to 6 May and bail was refused. I again presided on 6 May when I refused to admit a Devolution minute and proceeded to deal with the case in terms of section 10 of the Extradition Act 2003. The accused began to give evidence in relation to section 21 of the 2003 Act. The Hearing was adjourned before his evidence in chief was completed due to lack of court time and the need to produce documents which were in his possession at prison. The case was continued to 25 May and the accused was remanded in custody there being no application for bail.
[8] On 25 May 2010 the Lord Advocate objected to the production of letters which the accused wished to speak to in evidence which he claimed were received from friends who were currently incarcerated in Polish prisons. After hearing parties I allowed the letters to be admitted in evidence and continued the case to 25 June to allow the Lord Advocate to consider her position and make further enquiries. I considered a renewed request for bail but refused to admit the accused to bail and he was remanded in custody until 25 June.
[9] At the Hearing on 25 June 2010 the accused concluded his evidence in chief and was cross examined. After hearing lengthy submissions from parties I made avizandum and continued the case until 9 July. I again considered a request for bail at this time but refused to admit the accused to bail and he was remanded in custody.
Issues raised at the Extradition Hearing
[10] At the Hearing on 6 May 2010 Counsel for the accused sought to lodge Devolution Minute in light of the decisions of the Appeal Court issued on 4 May in the cases of Kropiwnicki v H M Advocate [2010] HCJAC 41 and Engler v H M Advocate [2010] HCJAC 42 . This motion was opposed by the Lord Advocate. The Minute narrated that sanction for legal aid, to investigate the conditions of specific prisons in Poland that the accused might be sent to if extradited, had been refused. Efforts to secure up-to date evidence by other means in Poland had been unsuccessful. It appeared that an appeal against the refusal of legal aid had been unsuccessful on 12 April. Counsel could not explain satisfactorily why a Devolution Minute had not been lodged when the case called previously on 14 April. Counsel accepted that it had been open to seek a judicial review of SLAB's decision but had chosen not to follow this course as other avenues for securing evidence had been attempted. Contacts with Polish solicitors had ceased abruptly presumably when it became clear funding for work in this context was not available.
[11] Counsel's submission was that the refusal of legal aid to conduct enquiries into current and likely future Polish prison conditions and the limited general information available on prison overcrowding rates there meant that there was an inequality of arms.
[12] Ms Nicol argued that the Devolution Minute should not be admitted as there was no good reason for it to be received at this time which would involve further adjourning the proceedings. I was referred to McAllister and others v H M Advocate Appeal Court 11 December 2009. Paragraph 7 confirms the test to be applied is that set out in Transo Plc v H M Advocate 2004 SC (J) 29; Lord Hamilton at para [44]. To succeed on this point the accused would need to show that "proceedings would necessarily bring about a breach" of Convention rights, or "would inevitably result in the proceedings as a whole being unfair". The accused would have to "demonstrate this is one of those rare and isolated cases." Reference was also made to paragraph 9 where the Court stated there was "no general entitlement to further or additional assistance to satisfy the principle of equality of arms.
[13] I was then referred to Baranauskas v Ministry of Justice of the Republic of Lithuania [2009] EWHC 1859 (Admin). In paragraph 11 Mr. Justice Silber noted that the appellant in that case had made two unsuccessful applications for legal aid funding and concluded there was "no basis for believing that another application would succeed". Ms. Nicol submitted the circumstances were identical to the present case.
[14] I took the view that the accused had had sufficient time to seek legal aid funding and I considered allowing a Devolution Minute to be received at this stage would only delay proceedings. I considered the accused's rights were adequately protected by section 21 and since the Hearing could not be concluded on 6 May there was further time to prepare the case. It was clear from other cases that a Devolution Minute could be submitted at a later stage on another basis if necessary.
[15] Accordingly I refused to admit the Devolution Minute in terms of Rule 40.5 of the Act of Adjournal and ordered the Hearing to proceed. I was reminded by Ms Nicol that the accused had accepted at the initial hearing on 3 February that he was the person named in the warrant however he did not consent to extradition. Accordingly I required to consider the terms of section 10 of the 2003 Act.
[16] The European Arrest Warrant was in respect of a single charge of contravening articles 291, 294 and 12 of the Polish Penal Code by acting with others between August 1993 and January 1994 in Lublin and other towns in Poland and Germany to steal 8 Mercedes limousines. In terms of section 65(3) of the 2003 Act the offence charged was of a type known to the law of Scotland and had involved the imposition of a sentence in excess of 3 months' imprisonment, namely 2 years and 8 months' imprisonment imposed in January 2006 by the Regional Court in Lublin of which sentence 1 year, 3 months and 8 days remained to be served.
[17] It was accepted that the warrant fell within the terms of section 10 of the 2003 Act. I moved on to consider section 11 of the 2003 Act but counsel indicated that there were no bars to extradition and accordingly I moved on to consider section 20 of the 2003 Act. A letter dated 11 February 2010 from the Circuit Court in Lublin was produced which explained the chronology of the case in Poland. The accused was detained prior to trial from 21 December 1994. An indictment called on 21 March 1995. The case proceeded and the accused was released from custody on 8 May 1996. The accused was released on bail with a condition prohibiting leaving Poland and the accused's passport was seized. Judgment in the case was issued on 26 March 1998 but this was appealed by the accused. This appeal was successful and the case was referred back by the appeal court for further procedure. The accused's case was dealt with separately from those of his former co-accused. The accused was present during this trial. On 27 December the accused was informed of the date judgment would be issued but failed to appear on 3 January 2006. No appeal was lodged and this judgment became finalised on 30 January 2006. A sentence of two year 8 months had been imposed and from this was deducted the period of actual detention served from 19 December 1994 to 8 May 1996. As is customary...
To continue reading
Request your trial