Wlodzimierz Wlodarczyk V. The Lord Advocate Representing The Republic Of Poland
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Wheatley,Lord Justice General |
| Judgment Date | 29 March 2012 |
| Neutral Citation | [2012] HCJAC 41 |
| Docket Number | XC470/11 |
| Published date | 03 April 2012 |
| Court | High Court of Justiciary |
| Date | 29 March 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Drummond Young Lord Wheatley | [2012] HCJAC 41 Appeal No: XC470/11 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in APPEAL by WŁODZIMIERZ WŁODARCZYK Appellant; against THE LORD ADVOCATE (representing the Republic of Poland) Respondent: _______ |
Appellant: Shead; Wilson McLeod, Edinburgh
Respondent: Drummond, Q.C. (for the Lord Advocate); Crown Agent
29 March 2012
[1] The Republic of Poland has made a request, by means of a European arrest warrant, for the return of the appellant to face trial there on a charge of robbery. Following an extradition hearing, on 30 May 2011 Sheriff MacIver, the Sheriff of Lothian and Borders at Edinburgh, made an extradition order in terms of section 21 of the Extradition Act 2003 ordering the appellant's surrender to the Republic of Poland. That decision has now been appealed under section 26(1) of the Extradition Act 2003.
[2] The background to the case is set out in the Sheriff's report. The request of the Republic of Poland is for the return of the appellant to face trial on a charge of robbery that he is alleged to have committed in the city of Wrocław on 25 March 2004; the allegation is that he was one of the parties to an incident in which a woman's handbag was snatched, his involvement being the removal of the handbag from the scene of the incident. As part of the return request, Poland seeks to have enforced a preventative temporary arrest warrant for a term of three months from the point of the appellant's return to Poland. The appellant has been on bail in Scotland since the point of his arrest on the European arrest warrant. That arrest occurred in August 2010, and the delay until the hearing before the Sheriff in May 2011 was caused by the fact that the appellant had outstanding criminal cases in Scotland; no extradition hearing can lawfully take place until such outstanding domestic matters are resolved.
[3] On 30 May 2011 the Sheriff of Lothian and Borders made an extradition order in terms of section 21 of the Extradition Act 2003, ordering the appellant's surrender to the Republic of Poland. The appellant has appealed against that decision to the High Court on two grounds. First, it is alleged that the time that has passed since the events relied on in the warrant makes it oppressive to order the return of the appellant to Poland; that argument is based on section 14 of the Extradition Act. Secondly, it is claimed that under section 25 of the Extradition Act it would be oppressive to extradite him on account of his mental state, in particular the risk of self-harm or suicide. As a separate aspect of this argument, it was alleged that the appellant's extradition would involve an unwarranted interference with his right not to be subjected to inhuman or degrading treatment or punishment in terms of article 3 of the European Convention on Human Rights and with his right to respect for private and family life in terms of article 8 of the European Convention on Human Rights.
Passage of time
[4] The first ground on which the appellant has appealed to the High Court is that it would be oppressive to extradite him owing to the passage of time since the events relied on in the arrest warrant. The relevant provision of the Extradition Act 2003 is section 14, which is in the following terms:
"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)
(b) become unlawfully at large (where he is alleged to have been convicted of it)".
[5] In cases where section 14 is invoked the chronology is, as the Sheriff indicated, generally significant. In the present case it is alleged that a crime was committed on 25 March 2004 and that, following upon investigative procedures, the appellant was brought to trial in Poland in July 2005. The Sheriff finds that the appellant was aware of the trial, and indeed was present in court, and in the evidence which the appellant gave at the extradition hearing he conceded that he knew that the case was put off on that date because of the unavailability of witnesses. The appellant further accepted in evidence that he left Poland to come to the United Kingdom in November 2005, and that he did not give a change of address or new location to the Polish court, although he was obliged to do so by the relevant Polish bail conditions. The Polish proceedings came back for a trial in June 2006, but at that time the authorities were unable to serve papers on or contact the appellant, and a non-appearance warrant was issued for his arrest. When steps were taken to enforce the warrant within Poland, it became apparent that he was no longer in the country. The appellant was subsequently traced to an address in the United Kingdom, and the Polish warrant was converted into a European Arrest Warrant in September 2009. After translation and various procedures that warrant was transmitted to the United Kingdom and was accepted for enforcement by Crown Office in July 2010.
[6] The Sheriff notes that the overall time involved in the present case is shorter than in any of the reported cases where the passage of time has led to an unacceptable delay. He further notes that it was conceded at the hearing before him that there could not be an argument in this case that the passage of time caused any problem in relation to the running of a future trial in Poland; it was accordingly conceded that there could not be a claim that it was unjust to return the appellant, but the argument was rather restricted to a contention that it would be oppressive. That argument was considered and rejected by the Sheriff.
[7] Before the High Court the appellant maintains that the Sheriff was wrong to reject that argument on, essentially, three separate grounds. First, it is said that the Sheriff erred in defining the appellant as a fugitive at the time of his departure from Poland as a matter of law. Secondly, it is said that the Sheriff was in error in his treatment of a visit that the appellant paid to a Polish court in May 2009 in order to obtain a disclosure certificate. It is contended that the Sheriff ought to have held that that visit provided a basis for the appellant to conclude that proceedings had been discontinued. Moreover, it is said that the Sheriff erred in holding that there was no culpability on the part of the Polish state through inactivity which contributed to the passage of time; the appellant had lived openly throughout his time in Scotland; he had attended at a Polish court in May 2009; and the Polish authorities ought to have discovered his whereabouts. Thirdly, it is said that the appellant had gone through a radical change in lifestyle as a result of his move to Scotland. He had been able to obtain work, benefiting from an absence from the prejudice towards his mental health condition which had prevented him from getting work in Poland. The appellant's family had moved to Scotland and settled here and his children were at school in Scotland. The appellant had continued to be in employment, although he had been off work during the previous year due to his mental illness. These facts, it was said, illustrated the effect that the passage of time had had upon the appellant.
[8] On the first of these grounds, the Sheriff recorded that the appellant had given evidence to the effect that he had left Poland in about November 2005 without any inquiry and with little thought about his outstanding trial. He knew that when it was adjourned there was no question of its being dropped, and that no new date had been assigned for it then. He made no inquiry about it thereafter, and simply hoped that and it would not be a matter which would follow him to the United Kingdom. On the basis of those facts, which the Sheriff described as a "very common set of circumstances", he concluded that there was no doubt that the appellant was in strict legal terms a fugitive from Polish justice during that time. He remained a fugitive from justice thereafter since he did nothing to inform the Polish authorities at any stage about his situation or to inquire about surrender on the warrant that they had issued in June 2006. On the basis that the appellant was correctly regarded as a fugitive, the Sheriff concluded that he was the author of his own misfortune in terms of delay and could not, under existing case law, rely with any force on section 14.
[9] In relation to the second ground of appeal, the Sheriff records that the appellant gave evidence that he had travelled to Poland in 2009 for the purpose of attending a family funeral. The Sheriff was prepared to accept that possibility. He considered, however, that the appellant's evidence about the steps that he then took in Poland was dubious, and he had the impression that the appellant was attempting to hide relevant information from the court. The appellant's wife also gave evidence, which was different from the appellant's, and the Sheriff thought that this cast serious doubt on the appellant's credibility in relation to one particular matter. In Poland it is possible to visit a police station personally and request that a document be issued by the Central Authority in Warsaw to certify the applicant's criminal record, including any outstanding charges. The appellant produced such a document, dated May 2009, at the hearing before the Sheriff. This document did not refer to the incident that is the subject of the present proceedings. It indicated on its face that when it was requested the appellant had given an address in the city of Bydgoszcz. In evidence, however, the appellant had said that he had gone to his local police station in Toruń, his home town. The two towns are approximately 50...
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