Wojciech Malarz v Regional Court of Opole, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol,Lord Justice Simon |
| Judgment Date | 16 January 2018 |
| Neutral Citation | [2018] EWHC 28 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1355/2017 |
| Date | 16 January 2018 |
[2018] EWHC 28 (Admin)
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
and
Mr Justice Nicol
CO/1355/2017
Manjit Gill QC and Wojciech Zalewski (instructed by Coomber Rich) for the Appellant
Peter Caldwell and Jonathan Swain (instructed by CPS) for the Respondent
Hearing date: 19 December 2017
This is an appeal from the decision of District Judge (Magistrates Court) Ezzat (‘the District Judge’) made on 10 March 2017 ordering the extradition of the appellant at the request of the respondent (‘the JA’).
Background
The history of this matter begins on 11 May 1998, when the appellant committed an offence of assault, which became the subject of a European Arrest Warrant: KOP 38/11. It is convenient to refer to it as the 11 May offence.
On 31 October 1998, the appellant committed an offence of unlawful assembly. This too became the subject of an EAW: KOP 100/11. It is convenient to refer to this as the 31 October offence.
On 6 November 2000, he was sentenced by the JA to a term of 14 months imprisonment for the 11 May offence, ref. II K 62/99. The sentencing judgment became final on 3 July 2001.
In April 2001, the appellant came to live in this country with his partner, and began to work here.
On 20 December 2001, Regional Court in Poznan sentenced the appellant to 1 year imprisonment for the 31 October offence, ref. III K 132/00.
On 9 June 2011 an EAW, with file reference III Kop 38/11 (‘the 1st EAW’) was issued by the JA in respect of the 11 May 1998 offence, with a case reference number: II K 62/99. The offence was described as a joint assault by the appellant with 2 others in which the 3 victims were attacked with bottles, sustaining bodily injuries, which ‘disrupted their bodily functions’ for a period not exceeding 7 days. The appellant was stated to have committed the offence within 5 years of serving a prison sentence for a similar offence. The limitation period for enforcement was stated to be 15 years (because the sentence was for 5 years or less) and to expire on 4 July 2016. The EAW also stated that the appellant was present when sentence was announced; and that it had been established that he might be staying in the UK.
On 26 September 2011 a second EAW, with reference III Kop 100/11 (‘the 2nd EAW’) was issued in relation to the 31 October offence. The Requesting Authority was the Regional Court in Poznan. It is unnecessary to refer in detail to the 2nd EAW save to note that it sought the appellant's extradition to serve a sentence of 1 year imprisonment; and that it explained that the normal limitation expired on 27 December 2016, but that due to the appellant's evasion of his sentence, on 27 October 2003 the Poznan court had suspended the execution of the penalty so that the limitation period was extended to 27 December 2026.
On 5 March 2015, the NCA certified the 1st EAW; and on 22 March 2015, it certified the 2nd EAW.
On 3 March 2016, another EAW was issued and signed by a judge of the Opole Court in respect of the 11 May offence. The appellant has referred to this as the 3rd EAW; and the JA as the 2nd version of the 1st EAW. Its proper characterisation may be significant in view of arguments addressed to us on the day of the hearing. For present purposes, I shall refer to it as ‘the 3rd EAW’ while noting that it is in fact another version of the 1st EAW: with the same case number for the domestic proceedings (II K 62/99) and the same file reference as an EAW (III KOP 38/11). In addition, although formatted slightly differently, it had the same offence details and was materially the same.
It did, however, differ in two crucial respects. First, instead of reciting that the limitation period for enforcement expired on 4 July 2016, it stated in box F: ‘the limitation period for sentence execution in case II K 62/99 shall expire as of 3 July 2026’. The limitation period had been extended by 10 years. Secondly, in box F, the relevant signature was dated 3 March 2016.
It is clear now that these changes were not drawn to the attention of the NCA and CPS who assumed that it was effectively the same as the 1st EAW.
In view of questions that arose as to the reasons for the issue of the 3rd EAW, evidence was placed before the Court so as to explain how it came into existence, to which I refer later in this judgment (see [56] below). In short, the limitation period had been extended because the appellant had evaded serving his sentence.
On 9 August 2016, the appellant was arrested on the 1st and 2nd EAWs. He appeared before the Westminster Magistrates Court and was bailed to attend on 30 August 2016.
On 30 August 2016, he appeared before DJ Ezzat for an extradition hearing. At this point it was accepted on behalf of the JA that the limitation period for enforcement of the sentence to which 1st EAW related (the 11 May offence), had expired and that the JA was not seeking extradition under this EAW. It followed that extradition was only sought in relation to the 2nd EAW.
The District Judge reserved his decision on KOP 100/11; and the appellant was bailed to attend court on 3 October 2016.
On 3 October 2016, the District Judge ordered the appellant's extradition on 2nd EAW. It appears that he made no decision on 1st EAW. Although in a subsequent decision (of 10 March 2017) he accepted that he should have formally discharged the appellant in relation to the 1st EAW. Both parties sensibly agreed that this was how the judgment should be read and the obvious typographical error ignored.
On 16 November 2016, the court in Poznan suspended the sentence on KOP 100/11 (apparently on the application of the appellant) and directed that, as the sentence of imprisonment which was the subject of 2nd EAW could not be enforced, there were no grounds to pursue the appellant under the EAW and the EAW could not be executed. On 18 November 2016, the Poznan Court wrote to the NCA withdrawing the 2nd EAW.
On 21 November 2016, the appellant was contacted by a police officer from the extradition unit who spoke Polish. He was told to go to a Police Station in Kent for the purposes of extradition on the 2nd EAW. This was in an accordance with the District Judge's previous decision of 3 October. The appellant explained to the officer that the EAW had been withdrawn: a fact that he had learned from his Polish lawyer.
On 22 November 2016, the appellant's Polish lawyer emailed with details of the decision of the Poznan court on 16 November.
Shortly after this, the appellant contacted his solicitors, who asked the court for an urgent hearing.
On 24 November, the appellant and his counsel attended Westminster Magistrates Court in order to obtain the CPS's agreement to the discharge of the warrant. This could not be achieved, and at about 11.30 am the appellant was arrested and taken to Biggin Hill airport, where his electronic tag was removed and he was placed on a plane to Poland.
In the meantime, his solicitors telephoned the CPS to say that they were intending to apply for an order of habeas corpus. This appears to have resulted in the CPS sending someone to the Magistrates Court and informing the judge that the Poznan court no longer wished to seek the appellant's extradition on KOP 100/11. Accordingly, the 2nd EAW was discharged on that date by District Judge Snow.
There was some lack of clarity about what the Court was told about KOP 38/11. However, we have now seen an extract from the Hearing Record Sheet. This indicates that the 2nd EAW was withdrawn and discharged; that the Court was told that the appellant had been removed from the plane; but that KOP 38/11 ‘is still a valid warrant’. The Hearing Sheet records the CPS advocate saying:
The confusion arose because the JA on 12/8/2016 sent an English Translation of the KOP 38/11 but no one realised that this was an amended warrant with the date of limitation on box F has been amended to 3/7/2016. That is why the JA till today is saying it is a valid warrant.
So, since it was not formally discharged by court I have asked DJ Izzat to list the matter and have the requested person to attend court to proceed with the valid warrant.
The CPS had received information that morning from the Regional Court in Opole that EAW III Kop 38/11 was ‘valid and active.’
In the memorandum of entry entered in the Court Registry [156] the following was recorded:
Adjourned to 01/12/2016 at 10.00 …
Reason: non-standard reason: for requested person to attend and fix hearing on the amended warrant which is valid before DJ Ezzat.
In a ‘notice of new date of hearing’ made on 24 November the Court made an order directing the appellant to attend court on 1 December ‘to fix hearing on the amended warrant which is valid before DJ Ezzat’.
On 25 November 2016, the appellant telephoned the Court to ask for his bail recognisance, on the basis that he was no longer to be extradited. He was informed orally that there was an active case and that the money could not be returned.
On 26 November 2016, the appellant received the notice of the new date of directing his attendance on 1 December. On the same day, he went to Acton Police Station to sign on in accordance with his bail condition but was told not to come there anymore.
At 4.00 am on 28 November 2016, without prior warning, he was arrested at his home, because the police had been told by SERCO/EMS (who provided Electronic Monitoring Services) that there has been a breach of the curfew. The appellant explained that the tag had been removed by the police when he was put on the plane on 24 November.
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