Usti Nad Labem Regional Court Czech Republic v Janiga
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Swift DBE,LORD JUSTICE PILL,MR JUSTICE SUPPERSTONE |
| Judgment Date | 22 February 2011 |
| Neutral Citation | [2010] EWHC 463 (Admin),[2011] EWHC 553 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/15739/2009,CO/10051/2010,Case No: CO/15739/2009 |
| Date | 22 February 2011 |
[2010] EWHC 463 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: The Rt. Hon. Lord Justice Waller
The Hon. Mrs Justice Swift Dbe
Case No: CO/15739/2009
Mr Myles Grandison (instructed by the Crown Prosecution Service) for the Appellant
Miss Rebecca Hill (instructed by Kaim Todner LLP) for the Respondent
Hearing dates: 17 February 2010
The Hon. Mrs Justice Swift DBE :
This is the judgment of the court.
The appeal
This is an appeal by the Usti Nad Labem Regional Court (a Czech Republic Judicial Authority) against the decision of District Judge Evans sitting at the City of Westminster Magistrates Court, ordering the discharge of the respondent, Miroslav Janiga, under section 10(3) of the Extradition 2003 Act 2003 (the 2003 Act) on 21 December 2009.
The proceedings in the Czech Republic
It is alleged that, between 2003 and 18 May 2004, in the Czech Republic, the respondent sexually assaulted and raped his stepdaughter, Kristyna Jelinkova, on numerous occasions. At the time of the offences she was under the age of 10 years. Furthermore, it is said, that between the same dates, the respondent sexually assaulted another stepdaughter, Dominika Janigova. She was under the age of six years.
The respondent was charged with the offences in the Czech Republic on 24 June 200He was remanded on bail. The trial commenced on 12 April 2005, in the presence of the respondent and his lawyers. Evidence was heard on 2 August 2005, 24 January 2006, 30 March 2006, 6 June 2006 and 7 August 2006. The trial was then adjourned at the request of the defence in order for psychiatric evidence to be obtained. However, the respondent, who had been on bail throughout, did not attend his appointment with the psychiatrists. He disappeared. As a result, on 20 March 2007, a domestic arrest warrant was issued. The respondent could not be found and information from his employers suggested that he had left the Czech Republic. The domestic warrant was never executed. A European arrest warrant (EAW) was issued by a judge of the Czech court on 7 November 2007. At that time, the respondent was an accused person and was being sought for the purpose of attending his adjourned trial.
By the beginning of 2009, it must have been clear that the respondent was not going to return to the Czech Republic for the conclusion of his trial. The trial was resumed in the respondent's absence, although lawyers attended on his behalf. The hearing took place on 10 March 2009. At that hearing, the court heard closing statements from the parties and convicted the respondent in his absence of the offences. A sentence of nine years' imprisonment was imposed.
Subsequently, an appeal was instituted by the respondent's lawyers against both conviction and sentence. That appeal was determined by the High Court of Prague on 26 May 2009, when the court upheld the respondent's conviction but reduced the sentence of imprisonment to one of six years.
The extradition proceedings
The EAW was certified by the Serious Organised Crime Agency (SOCA) on 27 August 2009, i.e. after the respondent's conviction and sentence. He was arrested on the EAW on 21 September 2009 and produced before the City of Westminster Magistrates Court on 22 September 2009. He was remanded in custody. The extradition hearing was formally opened on 29 September 2009 and was adjourned on that occasion, and on subsequent occasions, in order that both parties could obtain evidence.
On 29 October 2009, the respondent served on the appellant's solicitors a statement of issues which stated, inter alia, that the respondent believed that the EAW was defective since he had been told that he had been convicted of the extradition offences listed in the EAW and sentenced in his absence.
On 18 November 2009, the Crown Prosecution Service (CPS), which represents the appellant, dispatched a formal request for information from the Czech Republic Judicial Authority about the status of the Czech proceedings. That request could not be sent direct to the Judicial Authority. Instead, it had to be sent to the SOCA for translation into Czech and subsequent onward transmission to the Judicial Authority. Further similar requests were sent to the Judicial Authority by the same route on 24 November and 11 December 2009.
On 26 November 2009, the respondent's solicitors wrote to the Judge of the Czech Republic Judicial Authority, posing a number of questions. They received a response by email dated 1 December 2009 in which the Judge stated, inter alia, that Czech law enables an accused person to apply for a retrial after his return to the Czech Republic.
The CPS received no response to their requests until Friday, 18 December 2009. That response, which was dated 8 December 2009, was not seen by counsel for the appellant until the morning of the hearing on Monday, 21 December 2009. The response stated:
“It is not true that the defendant has no right to retrial; this is guaranteed by provision of article 306a paragraph 2 of the Criminal Procedure Code. The defendant has the right to apply for reversal of a judgment within eight days after delivery thereof, and the Court is obliged to grant the application. Then the final session of the main trial is held again, closing statements are repeated and a new judgment is pronounced. The defendant has also the right to make motions for the completion of proofs.”
The extradition hearing
The matter came before District Judge Evans on 21 December 2009 for a full hearing. At that hearing, Counsel for the respondent, Miss Hill, argued that the EAW was deficient since it had been issued when the respondent was an accused person, whereas his status had by the time of the hearing changed to that of a convicted person. She argued that the respondent's status must be determined at the date of the extradition hearing, not at the date of the issue of the warrant. (For ease, we shall refer to this issue as “the date issue”.) She invited the District Judge to find that the warrant was invalid and to discharge the respondent.
Counsel for the appellant, Mr Grandison, sought an adjournment of the full hearing to a future date, in order to enable the appellant to obtain further clarification as to whether or not the respondent's conviction and sentence could properly be regarded as “final and enforceable” in Czech law. If they were not final and enforceable, then the respondent's status had not changed from that of an accused person and the EAW would be valid. Mr Grandison had attended the hearing prepared to argue “the date issue”. He was not in a position immediately to argue the issue of whether or not the Czech conviction and sentence were final and enforceable (“the finality issue”). He therefore requested that, at the very least, the case should be adjourned until later that same day in order that he could undertake the necessary research to enable him to argue the point fully.
Mr Grandison argued that, in any event, the respondent's status (i.e. whether he was as an accused or a convicted person) should be ascertained at the date of issue of the EAW not at the time of the extradition hearing.
The District Judge refused the appellant's application to adjourn the hearing on the ground that the appellant had had ample time to investigate the case. He went on to find that the status of a requested person must be assessed as at the date of the extradition hearing. He appeared to accept that the respondent must be regarded as a convicted person. As a consequence, he decided that he could not order the respondent's extradition on the basis of the existing warrant. He said that, if the application for extradition were to proceed, a new EAW would have to be issued. He observed that his experience led him to believe that this should be “quite straightforward”. Meanwhile, he ordered the respondent's discharge under section 10(3) of the 2003 Act.
The appeal
The appellant immediately instituted appeal proceedings under section 28 of the 2003 Act. An application for the respondent to be remanded in custody pending the appeal was made and granted. The grounds of appeal alleged that the District Judge erred in three respects :
i) By discharging the respondent under section 10(3) of the 2003 Act which, it was said, is only applicable if there is a finding that the offences listed on the EAW are not extradition offences; it is contended that, if the District Judge were minded to discharge the EAW, he should have declared that the EAW was void ab initio.
ii) By finding that the key date for ascertaining the respondent's status was at the time of the extradition hearing and not at the time of the issue of the EAW (“the date issue”);
iii) By not granting the appellant an adjournment to ascertain whether or not the respondent's conviction and sentence were final and enforceable; it was submitted that, had the District Judge granted the adjournment, the appellant could have provided evidence to demonstrate that the respondent should be treated as an accused person.
The respondent agrees that the first ground of appeal must succeed. It is accepted that, in the light of his findings, the District Judge should have declared that the EAW should not have discharged the respondent under the section 10(3) of the 2003 Act. Instead, he should have declared that the EAW was invalid . This makes no practical difference to the respondent's position.
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