Richard Holman v Regional Court in Warsaw, Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OWEN |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] EWHC 1503 (Admin) |
| Date | 16 May 2012 |
| Docket Number | CO/11427/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2012] 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 Owen
CO/11427/2011
Mr S Fidler (instructed by Fidler and Company) appeared on behalf of the Claimant
Mr D Isaacs (instructed CPS Special Crime Division) appeared on behalf of the Defendant
( )
This is a statutory appeal under section 26 of the Extradition Act 2003 ("the 2003 Act") against an order for the extradition of the appellant made in the Westminster Magistrates' Court on 22 November 2011.
The appellant's extradition is sought by the Regional Court in Warsaw, Poland, on a European arrest warrant issued on 24 March 2011 and certified by the Serious Organised Crime Agency on 15 May 2011. It is a conviction warrant issued to secure the extradition of the appellant to serve the outstanding balance of a sentence of three years, six months imposed on 15 December 2009 for offences of fraud and forgery, the outstanding period to be served being two years, four months and 14 days.
The appellant was arrested under the warrant on 29 June 2011. He appeared before District Judge Zani at the Westminster Magistrate's court on the following day. The hearing was adjourned and the appellant remanded on conditional bail. On six subsequent occasions the defence were granted adjournments to allow them to obtain the evidence upon which they wished to rely, and on 2 November 2011, the eighth listing, the contested hearing took place. District Judge Zani reserved judgment which he delivered, as I have indicated, on 22 November ordering the extradition of the appellant.
The issue raised by this appeal is whether, if extradited to Poland and owing to his Afro Caribbean ethnicity, the appellant will be subjected to treatment that will breach his rights under Article 3, or will result in his being punished, detained or restricted in his personal liberty by reason of his race within the meaning of section 13B of the 2003 Act.
Section 13 of the 2003 Act provides that:
"A person's extradition to a category 1 territory is barred by reason of extraneous considerations if (and only if) it appears that—
…
(b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
In his skeleton argument Mr Isaacs, who appears for the respondent, has helpfully invited my attention to the decision in Fernadez v Government of Singapore [1971] 1 WLR 987 cited with approval in McKenzie v Spain [2008] EWHC 3187 (Admin) at paragraph 42, which sets out the appropriate test under section 13B:
"The burden is on the appellant to show a causal link between the issue of the warrant, his detention, prosecution, punishment or the prejudice which he asserts he will suffer and the fact of his race or his religion. He does not have to prove on the balance of probabilities that the events described in s.13 (b) will take place, but he must show that there is a 'reasonable chance' or 'reasonable grounds for thinking' or a 'serious possibility' that such events will occur …"
The first and critical question, so far as this limb of the appeal is concerned, is the proper construction of section 13B. The claimant's case, as advanced with characteristic vigour by Mr Fidler before me today, is that the evidence demonstrates that the appellant will be at risk of racially prejudiced behaviour on the part of fellow prisoners when, and if, returned to Poland, and that accordingly his extradition should be barred under section 13B.
But in response Mr Isaacs argues that the section is not directed to racially prejudiced behaviour on the part of fellow prisoners. It is, he submits, plain that section 13B will only apply if the...
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