Banasinski v District Court of Sanok (A Polish Judicial Authority) [2008] EWHC 3626 (Admin)

[2008] EWHC 3626 (Admin)Case No CO/4474/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 19 June 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE MACKAY
Between
SEBASTIAN BANASINSKIClaimantv
Between
DISTRICT COURT OF SANOK (A POLISH JUDICIAL AUTHORITY)Defendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
for The Claimant did not appear and was not representedMr Mark Weekes (instructed by CPS) appeared for Defendant
J U D G M E N T

LORD JUSTICE RICHARDS:

This

[1]is an appeal under section 26 of the Extradition Act 2003 against an order made by District Judge Nicholas Evans on 6 May 2008 at City of Westminster Magistrates' Court for extradition of the appellant, Mr Banasinski, to Poland. The case is governed by Part 1 of the Act.[2]Mr Banasinski has lodged the notice of appeal and grounds of appeal in person. He has not attended the hearing this morning. The court has checked the position and is satisfied that he received notice of this morning's hearing. A voice message was left with him in the first instance, and the date of the hearing was confirmed in a letter of 28 May 2008 from the Administrative Court Office, sent to him at the address which he had given to the court as the address for service on him as from 16 May 2008. That letter of 28 May 2008 not only reminded him of the date fixed for the hearing, but also enclosed an order made by Collins J extending time for the hearing of this appeal. We have further informal confirmation of the position from the fact that, as we are told by Mr Weekes, who appears for the respondent authority, papers were sent by courier to Mr Banasinski yesterday at the address that he has given for service. Files were initially accepted by the person resident there and taken into the premises, but were then brought out again and returned to the courier. It is not an unreasonable inference that Mr Banasinski did not wish to receive the material. In any event, there is sufficient, as I have said, to justify the view that he has had proper notice of this hearing. He has given no indication that he would not be present. No application for an adjournment has been received. In the circumstances, it is plainly right for us to proceed with the case.[3]The appellant's extradition was sought by several judicial authorities in respect of a large number of offences. There were in total eleven European Arrest Warrants relating in part to matters in respect of which he had been convicted, and in part to matters in respect of which he faced charges. In the course of the proceedings in the Magistrates’ Court, which were adjourned several times, two the warrants (numbered 5 and 7) were discharged, but fresh warrants (numbered 10 and 11) were issued to replace different parts of warrant number 7. The outcome of the proceedings (in which, it is right to add, the appellant was represented by counsel) was that the District Judge was satisfied as regards all nine remaining warrants that the offences were extradition offences. There was one contested issue of fact in relation to warrant number 9, in that the appellant claimed he had not been informed of the date of his trial, but the District Judge referred to further information from the judicial authority that the appellant had been properly informed of his trial, and the District Judge accepted that account, finding that the appellant had been a truthful witness but that his recollection with regard to this issue was at fault. As a result no live issues remained, and without opposition from the appellant's counsel, the District Judge found that there were no bars to extradition. He was satisfied that an order would be compatible with the appellant's human rights. Extradition was therefore ordered on each of the remaining nine warrants (numbered 1-4, 6 and 8-11).[4]In his notice of appeal, the appellant raises two grounds. The first is that one of the warrants is wrong because it specifies that he has three years of his sentence left to serve, but in fact he has only two and a half years left because he spent six months in custody on remand, which the warrant does not take into account. This evidently relates to warrant number 10, which states that the length of the custodial sentence imposed was three years, and also that the remaining sentence to be served is three years. The appellant complains that the District Judge failed to request further information from Poland regarding this warrant and in relation to the correct amount of time in custody that the appellant will be required to serve.[5]The respondent authority does not accept that the appellant has spent time on remand in relation to this matter as he alleges. He has provided no supporting evidence of it. The authority submits, and I accept, that having regard to the policy and purpose of the system established by the European Framework Decision, under which European Arrest Warrants are issued and given effect, there was no duty on the District Judge to request further information in relation to a matter in respect of which the warrant was clear on its face. There is no basis for going behind what is stated in the warrant. But even if the appellant were right about having spent six months on remand, and there was in that respect an error in the warrant, it would not provide him with a defence to extradition since this is not a matter that can affect the validity of the warrant or otherwise provide a proper ground of appeal.[6]Section 2 of the Act relates to the matters which a warrant must contain. The relevant requirement in section 2(2) is that the warrant must contain the statement referred to in sub-section (5) and the information referred to in sub-section (6). The statement referred to in sub-section (5) is one that-(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."[7]The information referred to in sub-section (6) includes various particulars, the relevant one being in paragraph (e), namely:
"... particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
[8]The information required by section 2 does not extend to details of the length of sentence remaining to be served or the period spent on remand, if any, prior to sentence.[9]The relevant warrant in this case contains a statement that it is issued with a view to the appellant's arrest and extradition for the purpose of conducting a prosecution or executing a custodial sentence, and it is clear from the balance of the warrant that it is the latter -- executing a sentence -- which is relevant. So the statement required by section 2(5) is present. The warrant also contains particulars of the sentence imposed, namely three years' imprisonment, as required by section 2(6). None of those matters which the warrant needs to contain for the purposes of its validity has been questioned by the appellant.[10]The additional detail contained in the warrant about the remaining sentence to be served would not go to the validity of the warrant, even if it were shown or accepted to be wrong. Thus, even if the appellant is right that he has spent six months on remand in relation to this matter and that this counts towards sentence to be served, it does not provide him with a good ground for resisting extradition.[11]I have concentrated on the domestic implementing legislation. I should also mention that Mr Weekes has drawn the court's attention to the European Framework Decision itself. He accepts that the warrant in this case accords with the standard form annexed to the Framework Decision, which does include a section allowing for details to be given of the period of sentence still to be served.

(f) :

"the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State."
Thus the information required to be set out does not include information as to the period of the sentence still to be served. In that respect, the domestic implementing legislation in section 2 of the 2003 Act is entirely in accordance with the Framework Decision.[12]The second ground of appeal is a human rights ground to the effect that the appellant would be subject to degrading and abusive treatment in prison if he were returned. He says that he is a homosexual and was physically and mentally abused by prisoners and prison staff on the grounds of his sexuality while previously on remand in Poland. He is frightened of receiving similar treatment if he were returned, and he says he wants to serve his sentence instead in the United Kingdom where he feels he would be safe. This amounts to a claim that extradition would be incompatible with the appellant's rights under Article 3 of the European Convention on Human Rights, which is capable, in principle, of providing a ground for discharge under section 21 of the 2003 Act.[13]The appellant's difficulty on this ground is that it is for him to advance it and show substantial grounds for believing that, if extradited, he does face a real risk of ill-treatment contrary to Article 3, yet he did not advance this ground at all before the District Judge or give any evidence in relation to it. Even now, his claim is vague and generalised in the extreme, with no details of where or when the alleged physical or mental abuse occurred, or of what precisely it consisted of, nor is any supporting evidence provided. Moreover, no reason is shown why this court should not rely on Poland as a signatory to the Convention to comply with its obligations under that Convention. For the appellant to raise an allegation of this kind for the first time on an appeal, without cogent reasons why it was not raised below and without cogent evidence to support it, is hopeless. I am satisfied that this ground of appeal must also be rejected.[14]It follows that the appellant has put forward no sustainable basis whatsoever for challenging the extradition order, and in my view the appeal must be dismissed.

MR JUSTICE MACKAY: I agree.

[16]MR WEEKES: My Lords, two very short matters: simply that there were in fact originally 11 European Arrest Warrants, rather than nine.

LORD JUSTICE RICHARDS: Did I say nine? I am sorry, yes.

[18]MR WEEKES: And in fact European Arrest Warrant 5 was withdrawn by the judicial authority, and European Arrest Warrant 7 was discharged by District Judge Evans. There was a section 2 argument and District Judge Evans found in favour of Mr Banasinski.

LORD JUSTICE RICHARDS: So 5 was withdrawn and 7 discharged?

[20]MR WEEKES: My Lord, yes.

LORD JUSTICE RICHARDS: In the order that I have seen, both appear as having been discharged. Now, where have I seen it, is the next question.

[22]MR WEEKES: I think the position in fact was that the section 2 point was conceded so far as the EAW 5 was concerned, and so it may well be it was formally recorded in the court file as being discharged.

LORD JUSTICE RICHARDS: In the reasons he gives:

"In respect of ... numbers 5 and 7, the problems identified resulted in those warrants being withdrawn and I discharged Sebastian Banasinski on those matters."
[24]MR WEEKES: In fact, it was District Judge Tubbs who discharged EAW 5. It may not matter a great deal in the final analysis.

LORD JUSTICE RICHARDS: Anyway, you say that the factually correct position is that number 5 was withdrawn by the authority?

[26]MR WEEKES: It was conceded. It did not comply with section 2 and so the court discharged it formally, but it was not resisted -- the discharge, and the EAW 7 was discharged after argument.

LORD JUSTICE RICHARDS: So if one were to say, and I can correct the transcript in due course, that in the course of the proceedings in the Magistrates' Court numbers 5 and 7 were discharged?

[28]MR WEEKES: Indeed.

LORD JUSTICE RICHARDS: That would cover it.

[30]MR WEEKES: It would, my Lord, yes.

LORD JUSTICE RICHARDS: Right, is there anything else by way of factual correction?

[32]MR WEEKES: No, my Lord. The other matter is this: Mr Banasinski is of course, as your Lordships' appreciate, on bail. I do not know as a matter of fact whether one of his conditions was to attend this court. My recollection is that ordinarily that is a condition of bail when one is admitted to it, an order for extradition having been made.

LORD JUSTICE RICHARDS: This would have been bail granted by the Magistrates' Court, and I am not sure that we have the details.

[34]MR WEEKES: I suspect if he does not subsequently attend, an application will have to be made before City of Westminster Magistrates' Court for a --

LORD JUSTICE RICHARDS: I do not think it is for us to require him to appear before us -- I hope not.

[36]MR WEEKES: So be it. I am sure it can be resolved.

LORD JUSTICE RICHARDS: Because it seems to me that it is a matter the administration of which falls more naturally with the Magistrates' Court.

[38]MR WEEKES: Yes.

LORD JUSTICE RICHARDS: So you have no actual application?

[40]MR WEEKES: Not at this stage, no.

LORD JUSTICE RICHARDS: Thank you very much indeed, and thank you again for your assistance in providing the court with a very great deal of material, which was needed and we did not otherwise have.

[42]MR WEEKES: Thank you, my Lord.

Cited in 1 later judgment