Tomasz Lis v Regional Court in Rzeszow Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 14 August 2014 |
| Neutral Citation | [2014] EWHC 3226 (Admin) |
| Docket Number | CO/2310/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 August 2014 |
[2014] EWHC 3226 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Blake
CO/2310/2014
Mr M Henley (instructed by Lewis Nadas) appeared on behalf of the Appellant
Miss C Brown and 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 Snow made at the Westminster Magistrates' Court on 14 May 2014 ordering the appellant's extradition to Poland on a conviction warrant issued on 13 December 2011 for a number of offences. The warrant is for four offences committed between 21 October 2007 and 6 November 2009. Those offences include robbery, grievous bodily harm, assault on a constable and the final matter is a driving alcohol offence, to which I will turn in due course. Originally suspended sentences of imprisonment were imposed in each case but between 22 March and 11 October 2010 each suspended sentence was activated, with the result, I calculate, that the appellant had to serve a total term of 5 years and 4 months' imprisonment.
The appellant came to the United Kingdom. He was served with the warrant on 12 March 2014 and appeared before the Westminster Magistrates' Court that day. It appears the directions for the filing of evidence and a skeleton argument in April were given for him to support his grounds of resistance to the warrant but those directions were not complied with. It seems that legal aid was not granted until late in the day and counsel was only instructed shortly before the hearing.
On 14 May 2014 the judge refused a late application for an adjournment made by counsel to further investigate the matter and call evidence, with the consequence that the appellant gave oral evidence on a question which included whether he had been remanded in custody prior to sentence being imposed and therefore he had served part of that sentence.
The appellant made two submissions to the judge. First that the warrant was invalid and did not comply with section 2 of the Extradition Act 2003 because it did not contain the details of the sentence served, and reliance was placed upon the oral evidence of the appellant. The second submission was that the drink driving offence, did not meet the principles of double criminality as there was no equivalent UK offence. The judge dismissed both grounds and ordered return. They are both renewed in the appellant's notice today. Argument has been heard over two days, partly because at the close of the respondent's submissions, counsel then appearing became unwell and the matter has been adjourned until today for those submissions to be concluded. The court is most grateful to Mr Hearn, who has stepped in to make them for the respondent to enable this appeal to be finalised.
Validity of the warrant
I turn to the first submission that Mr Henley, for the appellant, advanced in his notice of appeal, skeleton argument and oral submissions. He faces a practical difficulty in that the oral evidence given by his client below was not accepted by the judge and indeed it included the averment that he had spent some time on remand before the date of the first offence. Shortly before this hearing began there was a short witness statement which has not been tested in which the appellant said he made a mistake and it was really the following year that he had been remanded in custody.
However, the matter does not simply rest with the slender evidential foundation of the claim. There is a body of authority to which I have been referred originally in the skeleton argument submissions prepared by Miss Brown. Those authorities appear to me to be clear and consistent, that all that the statutory regime of the Extradition Act and the framework decision requires in terms of spelling out the details of the conviction and the sentence is the total sentence that was imposed by the court. The scheme does not require the details of any term served to be included as a mandatory factor in the warrant.
That proposition can be established first in the case of Pietrzak v Regional Court in Wloclawek, Poland [2008] EWHC 2138 (Admin), a decision of the Divisional Court presided by Latham LJ; it was repeated in the case of Banasinski v District Court of Sanok [2008] EWHC 3626 (Admin), a decision of the Divisional Court presided by Richards LJ; and those authorities were cited and approved by Keith J in the case of Chrzescijanski v Circuit Court of Olsztyn, Poland [2012] EWHC 701 (Admin). In that case the facts appear similar to the present insofar as the basis of the claim to have spent time on remand was a rather late witness statement, and the submission that that undermined the validity of the warrant was rejected by Keith J at paragraphs 9 and 10.
Mr Henley, submitted to me however that those authorities were all decided before the decision of the Supreme Court in the case of Zakrzewski v Regional Court the Lodz, Poland [2013] UKSC 2, [2013] 1 WLR 324. In that case the Supreme Court reversed the decision of Lloyd Jones J, who concluded that where there had been subsequent to the issue of the warrant a compromise agreement reducing the sentence the warrant was invalid for failing to reflect that. The judgment of the court was given by Lord Sumption and he indicates that a change of circumstance of that kind did not affect the validity of the warrant. He said this at paragraph 8:
"It follows that the scheme of the Framework Decision and of Part 1 of the 2003 Act is that as a general rule the court of the executing state is bound to take the statements and information in the warrant at face value. The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct. It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong. If this is true of statements and information in a warrant which were wrong at the time of issue, it must necessarily be true of statements which were correct at the time of issue but ceased to be correct as a result of subsequent events. Validity is not a transient state. A warrant is either valid or not. It cannot change from one to the other over time."
The Supreme Court nevertheless went on to consider and gave cautious approval to the approach of the Divisional Court in the case of Spain v Murua [2010] EWHC 2609 (Admin), albeit with some reservations spelt out at paragraph 13 of the judgment. In the course of those comments Lord Sumption agreed that if the question of time served in lieu that was not reflected in the original warrant was relevant at all, it could only be relevant in an abuse of process argument rather that in an argument directed to validity. He considered that the circumstances in which that submission could be made were narrow.
Having reviewed that authority in some detail, I reject the contention that it throws any doubt on the approach in the earlier authorities to which reference has been made. The submission made to the District Judge, on the renewed grounds of appeal, was that this warrant was invalid by reason of failing to reflect what that appellant said was the time spent upon remand, that is to say by reason of extraneous material. It is clear that that submission has been consistently rejected and is wrong.
Insofar as that any period spent on remand may be relevant to an abuse of process argument, it would have had to be dealt with by evidence adduced by the...
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