Sciezka v Court Judge of Sad Okregowy Kielce Poland
| Jurisdiction | England & Wales |
| Judge | Openshaw J,Elias LJ |
| Judgment Date | 20 October 2009 |
| Neutral Citation | [2009] EWHC 2748 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/10005/2009 |
| Date | 20 October 2009 |
[2009] EWHC 2748 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Elias
Mr Justice Openshaw
CO/10005/2009
Ms Abigail Smith (instructed by Messrs GT Stewart Solicitors) appeared on behalf of the Claimant
Mr John Jones (instructed by CPS, Serious Crime Division) appeared on behalf of the Defendant
: Pursuant to the order of this court on 23rd September, we have heard together two separate appeals by Parwel Sciezka, the appellant, against decisions of District Judge Tubbs, made on 12th January and 2nd September of this year respectively, by which she ordered the appellant's extradition to Poland. Each extradition is challenged upon the grounds that, having regard to the passage of time since the alleged offence, it would be unjust or oppressive to extradite him.
By way of background, the appellant is a Polish national. Poland is a designated category 1 territory pursuant to section 1 of the Extradition Act 2003. He was born in 1974. He is now aged 35.
The relevant statutory provision is section 14 of the 2003 Act, which reads as follows:
“A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have —
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it).”
The same words were considered by Lord Diplock in Kakis v Government of Cyprus in the context of section 8(3) of the Fugitive Offenders Act 1967, which is materially indistinguishable from section 14 of the 2003 Act:
“'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair…
What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude.”
We turn to the recent decision of the House of Lords in Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 22, which recently provided detailed guidance on the bar to extradition arising by reason of the passage of time. The case laid down a series of general principles. Insofar as this case is concerned, the following principles seem to me to be directly relevant. First, the House of Lords expressly approved a further dictum of Lord Diplock in Kakis to this effect:
“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him.”
Secondly, the test of oppression will not easily be satisfied. Hardship is a comparatively commonplace consequence of an order for extradition but hardship of itself is not enough. Thirdly, those countries which are members of the Council of Europe are all subject to Article 6 of the European Convention on Human Rights and it should readily be assumed that domestic courts of the requesting state should be capable of providing the necessary safeguards to protect an accused person against an unfair trial. He referred to the robust statement of principle at paragraph 36 in the opinion of the House, which reads as follows:
“The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international cooperation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad. We were told that the sec. 82 (or sec. 14) 'defence' is invoked in no fewer than 40 per cent of extradition cases. This seems to us an extraordinarily high proportion and we would be unsurprised were it to fall following the committee's judgment in the present case.”
We turn then to the chronology of each case upon which the District Judge made detailed and careful findings, having heard in both cases evidence from the appellant himself.
We deal first with the first case. The appellant was charged that, acting with others, on 19th August 2002 in Mojcza he committed an offence of armed robbery. Her findings, which I must set out at some length, are in these terms:
“The 'relevant period' of time is from the date of the allegation, 19 August 2002, to these extradition proceedings, 5 January 2009. On 13 September 2002 the defendant was accused of the alleged robbery with three other co-defendants. On 31 January 2003 the preparatory hearings were completed and the defendant was summonsed to stand his trial. On 11 July 2003 he was present and legally represented by a duty lawyer in court at the trial hearing. One of the four accused was absent and the court suspended the proceedings whilst the absent defendant was sought so the trial could proceed with all the accused present. At this hearing the defendant stated his current address for the court summons to be sent there. The absent co-defendant was located and the court trial proceedings were resumed on 14 June 2006. The defendant did not appear at court on 7 August 2006. Enquiries by the Police in Poland showed he was no longer at the address he had given and a warrant of arrest was issued. The Polish Police, on 5 October 2007, informed the court in Sad Okregowy that the defendant had left for England on 2 March 2006 and his address in London was unknown. (The defendant confirmed that he had left Poland in March 2006 and had not returned to Poland since.) The Polish Public Prosecutor submitted the motion to issue the European Arrest Warrant on 25 April 2008 and the EAW was issued on 17 June 2008.
The defendant confirmed in his evidence that he was aware of the allegation against him, the nature of the charge, the date and the name of the alleged victim, in 2002. When he appeared in court in July 2003 he was legally represented and knew he was going to plead not guilty. The basis of his defence is that he went to the address in question in a vehicle, one of the occupants went into the address but he remained in the vehicle outside, with his friend, as he (the defendant) had a broken leg. He was unaware of, and took no part in, the robbery. His friend, who is named as a co-defendant, is now in Poland. One of the other named co-defendants he also believes to be in Poland. The third co-defendant, whom he does not know, he believes to be now in Italy. The alleged victim now lives in the UK. He has met her several times. Her husband is a friend. They lived in the same house for a month at the beginning of 2008. She has told him that the Police pressurised her. She has borrowed money from him. He believes she does not want now to give evidence against him. He knows where she can be contacted. He confirmed that he was never told the criminal proceedings were to be discontinued in Poland. When he left in March 2006 he was...
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