Wojciech Kazaniecki v Regional Court in Torun, Poland National Crime Agency (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 16 December 2016 |
| Neutral Citation | [2016] EWHC 3210 (Admin) |
| Date | 16 December 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3412/2016 |
[2016] EWHC 3210 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/3412/2016
and
Malcolm Hawkes (instructed by Aneta Maziarz Solicitors) for the Appellant
Hannah Hinton (instructed by the Crown Prosecution Service) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 29 November 2016
Approved Judgment
The Appellant appeals against the decision of District Judge Ikram (hereinafter "the DJ"), made at the Westminster Magistrates' Court on 30 June 2016, ordering his extradition to Poland to stand trial on charges of fraud, under the Extradition Act 2003 (" EA 2003").
Permission was granted by Supperstone J. on 29 September 2016 because of the unexplained delay of 12 years since the alleged offences were committed.
The alleged offences and the EAW
The Appellant is a Polish national, aged 59, who owned and operated a Bar in Poland. Following threats from an organised criminal gang demanding protection payments, he moved to the UK in October 2004 where he has been living and working as a chef ever since. His wife and child joined him in the UK 6 months after his arrival. In 2006, his daughter and her husband and child also moved to the UK and they reside with the Appellant and his wife.
An accusation European Arrest Warrant ("EAW") was issued by the Regional Court in Torun, Poland on 4 March 2016. It was certified by the National Crime Agency on 13 April 2016 but the name of the judicial authority was erroneously stated to be the District Court in Torun, which was the court that issued the domestic warrant. I do not consider that to be a material error which is capable of invalidating the certificate. 1 The EAW stated that, between 12 May and 23 June 2004, the Appellant committed an offence of fraud. He issued five false employment certificates in his company to two named individuals who used the certificates to obtain five bank loans totalling some 20,389.34 PLN (worth approximately £2,976 at the relevant time). These individuals allegedly passed the funds on the Appellant, in exchange for a fee. Under Polish law, the offence of "fraud" carries a maximum sentence of 5 years, and "credit fraud" carries a maximum sentence of 8 years.
The Appellant contests the allegations, stating that although he signed the certificates of employment to assist these individuals to obtain loans, there was no element of personal gain. Mr Zycki had to pay for his daughter's wedding and Mr Ucinski had financial problems. He assumed they would repay the loans and heard no more about the matter thereafter.
The decision upon which the warrant was based was an order by the District Court in Torun, dated 21 June 2013, that the Appellant be detained on remand for 14 days, as a preventive measure. The warrant stated in Box F that the Polish authorities had issued an order for the Appellant's arrest on 21 June 2005. It explained that ' However, due to the need to supplement the description of the offence W. Kazaniecki is charged with, the Prosecutor quashed the application of the detention on remand with a decision of 17 June 2013….'.
Further information was provided by the Regional Prosecutor dated 23 May 2016. It explained that the Appellant was never arrested or questioned about the alleged offence, and he was not contacted by the authorities in any way. He was not prevented from leaving Poland and there was no evidence that he was avoiding responsibility for the offence. By order of 12 April 2005 the police were requested to search for the Appellant. When they did not find him, a " wanted warrant" was issued on 23 June 2005. This warrant was revoked in 2013, and a fresh warrant issued " as it was necessary to amend the description of the offence charged". It stated that there was no delay as the authorities had been searching for the Appellant between 2005 and 2013.
Grounds of appeal
In summary, the Appellant submitted:
i) The Appellant invited the judicial authority in writing to employ less coercive measures than extradition, pursuant to section 21B EA 2003, but received no response. The DJ failed to take this into account in considering whether extradition was proportionate.
ii) The DJ failed adequately to consider the relevant factors under section 21A EA 2003 and erred in concluding that extradition was proportionate.
iii) The DJ misdirected himself in law on the test to apply under Article 8. In his assessment of proportionality, he misunderstood the evidence, took into account irrelevant matters, failed to consider relevant matters, and reached a conclusion which was wrong.
iv) The DJ misdirected himself in law on the test to apply under section 14 EA 2003, took an erroneous approach to the evidence, took into account irrelevant matters and failed to consider relevant matters.
Statutory framework
Section 14 EA 2003 provides, so far as is material:
"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—
(i) committed the extradition offence (where he is accused of its commission)…."
Section 21A provides, so far as is material:
"21A Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
….."
Section 21B provides:
"21B Request for temporary transfer etc
(1) This section applies if—
(a) a Part 1 warrant is issued which contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory), and
(b) at any time before or in the extradition hearing, the appropriate judge is informed that a request under subsection ( 2) or (3) has been made.
(2) A request under this subsection is a request by a judicial authority of the category 1 territory in which the warrant is issued ("the requesting territory")—
(a) that the person in respect of whom the warrant is issued be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(3) A request under this subsection is a request by the person in respect of whom the warrant is issued—
(a) to be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person (in the case of a request under subsection (2)) or the authority by which the warrant is issued (in the case of a request under subsection (3)) to consider whether to consent to the request.
An adjournment under this subsection must not be for more than 7 days.
(5) If the person or authority consents to the request, the judge must—
(a) make whatever orders and directions seem appropriate for giving effect to the request;
(b) order further proceedings in respect of the extradition to be adjourned for however long seems necessary to enable the orders and directions to be carried out.
(6) If the request, or consent to the request, is withdrawn before effect (or full effect) has been given to it—
(a) no steps (or further steps) may be taken to give effect to the request;
(b) the judge may make whatever further orders and directions seem appropriate (including an order superseding one made under subsection (5)(b)).
(7) A person may not make a request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already given consent to a request under the corresponding paragraph of subsection (2) in respect of that warrant (even if that consent has been withdrawn).
(8) A person may not make a further request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the...
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