Tazbir v Regional Court In Gdansk, Poland [2009] EWHC 838 (Admin)

[2009] EWHC 838 (Admin)Case No CO/659/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 7th April 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE OWEN
Between
MICHAL TAZBIRClaimantv
Between
REGIONAL COURT IN GDANSK, POLAND (A POLISH JUDICIAL AUTHORITYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ben Keith (instructed by Messrs Lawrence & Co) appeared for ClaimantMs Rachel Kapila (instructed by the Crown Prosecution Service) appeared for Defendant
Judgment

LORD JUSTICE RICHARDS:

[1]This is an appeal against an extradition order under Part 1 of the Extradition Act 2003. The appellant was arrested under an European Arrest Warrant on 4th November 2008. The extradition hearing at City of Westminster Magistrates' Court was opened on 18th November, continued on 12th December and concluded on 20th January 2009, when extradition was ordered. The appeal concerns the validity of the warrant on which District Judge Wickham ruled against the appellant at the hearing on 12th December.[2]The relevant provisions of the Act are section 2(3) and (4), in particular the requirement that the warrant is to contain the information in subsection 4(c), namely:
"particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."
It is common ground that the warrant must contain that information if it is to be valid; see Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 at paragraph 28 and Dabas v High Court of Justice, Madrid [2007] UKHL 6 at paragraph 53. The proper approach to section 2(4)(c) itself is set out in the judgment of Dyson LJ in Von der Pahlen v Austria [2006] EWHC 1672 (Admin) at paragraph 21:
"The language of section (2)(4)(c) is not obscure and, in my judgment, it should be given its plain and ordinary meaning. The subsection requires the warrant to obtain particulars of the circumstances in which the person is alleged to have committed the offence. These particulars must include four elements: (1) the conduct alleged to constitute the offence; (2) the time and (3) the place at which he is alleged to have committed the offence; and (4) any provision of law under which the conduct is alleged to constitute an offence. Elements (2),(3) and (4) are plain enough, although questions may arise as to how specific the descriptions of time and place need to be. The difficulties in the present case centre on element (1). The use of the introductory word 'particulars' indicates that a broad omnibus description of the alleged criminal conduct, 'obtaining property by deception', to take an English example, will not suffice."
[3]Other authorities to which we have been referred in the written submissions of counsel are Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin) paragraph 39; Sidlauskaite v The Prosecutor General's Office of the Republic of Lithuania [2006] EWHC 3486 (Admin) at paragraphs 9 and 10; Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) at paragraph 7; and Rana v The Public Prosecutor of the Graz Regional Criminal Court, Austria [2008] EWHC 2975 (Admin) at paragraphs 19 and 21. In paragraph 7 of his judgment in Ektor, Cranston J said this:
"... the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence..."
[4]The warrant that is the subject of the present appeal states that the appellant is sought for one "offence against property" contrary to Article 286.1 of the Polish Penal Code. The circumstances in which the offences is said to have been the committed are set out as follows in box E of the warrant:
"In the period from 1 February to 14 April 2000 in Zukowo, he brought Przedsiebiorstwo Handlowe Technika Grzewcza Sanitarna i Domowa Bimus Plus Spolka z orgraniczona odpowiedzialnoscia w Poznaniu (Bimum Plus, Heating, Sanitary, and Household Technology, Trading, a limited liability company in Poznan) to disadvantageous disposition of its property in this way that upon giving assurance of his financial liquidity he collected an assortment of central heating, and water and sewage systems, as listed on VAT invoice No. 1105 of 1 February 2000, VAT invoice No 1255 of 4 February 2000, VAT invoice No. 1567 of 15 February 2000, VAT invoice no 2199 of 1 March, VAT invoice no 2210 of 4 March 2000, VAT invoice No. 2884 of 22 March 2000, VAT invoice No. 2973 of 23 March 2000, VAT invoice No. 2988 of 23 March 2000, VAT invoice No. 3083 of 27 March 2000, and VAT invoice No. 3873 of 14 April 2000, all totalling PLN 46,910.95."
The warrant indicates that the crime falls within the so called Framework List, the relevant category being that of "fraud".[5]In ruling against the appellant, District

Judge Wickham said this about the warrant:

"It is fair to say that the warrant does take a bit of reading - it is badly expressed and badly presented at first site - but in fact it is clear that the allegation is of one offence of bringing to disadvantageous disposition of property - to the detriment of a particular company - that the defendant gave an assurance of his financial liquidity and collected the order - causing fairly substantial loss - the only point Mr Keith can really take is 'what is the conduct?' - I am satisfied that the warrant can be read properly and it is quite clear that Von De Pahlen is entirely different - since then there has been different authority - Ektor and Rana - I think the warrant is clear - I am satisfied that it is in conformity with section 2."
I should explain that that is not a full transcript of the ruling but is a note agreed between counsel as to the substance of what the District Judge said.[6]Mr Keith has presented the case on the appellant's behalf with very sensible economy. He has put his submissions very clearly in his skeleton argument and has drawn attention to those orally. He submits that the warrant does not fulfil the requirements of section 2(4)(c) and should be declared invalid. He says that the facts relating to the alleged conduct that can be determined from the warrant are these: that it occurred between 1st February and 14th April 2000; that it occurred in Kukowo; that the company was brought to a disadvantageous disposition of its property; that the appellant gave an assurance as to his financial liquidity; that after the assurance he collected an assortment of central heating, water and sewage systems; that the total value of the goods was PLN46,910.95. Those facts, he submits, do not amount to sufficient particulars of the circumstances in which the appellant is alleged to have committed the offence.[7]It is contended that the description in the warrant amounts, at least in relevant respects, to a broad omnibus description precisely of the kind said in Von der Pahlen not to suffice. The conduct described effectively amounts to the collection of the goods after giving an assurance but it is merely referred to as an assurance with no actual allegation of falsehood or criminality. Moreover, there are no details of the disadvantageous disposition to which the company was brought or how this was caused by the appellant's conduct. The expression itself is sufficiently clear for him to be sure of the criminality for which he is sought. It could encompass anything from the fact that the company could have sold its goods for a higher price all the way through to theft. It is simply unclear whether the alleged fraud in the framework checklist applied to the assurance or to some other facet of the conduct described, such as the collection of the goods.[8]In her written submissions for the judicial authority, Ms Kapila submits that the District Judge was correct to rule as she did. Reading the warrant as a whole, giving it its natural and ordinary meaning and making appropriate allowance for the fact that it has been translated, it is perfectly sufficient to give the appellant "an idea of the nature and extent of the allegations against him"; see paragraph 7 of Ektor, already quoted. She submits that the warrant states the dates between which the offence occurred (1st February and 14th April 2000); gives the location of the offence (Zukowa); states the fact that it is an offence of fraud (this being the box ticked in the framework list) and that the essence of a fraud is deception or dishonesty; it identifies to itemised VAT invoices that are referred to the property which was the subject of the fraud; it gives the total value of the property; it identifies the victim company by name; and it describes the fraudulent conduct, namely that upon giving a assurance of his financial liquidity the appellant collected an assortment of equipment and thereby brought the victim company to a disadvantageous disposition of its property. Ms Kapila submits that this is not a broad omnibus description such as obtaining by deception and that, looking at the warrant as a whole, it is clear in general terms what the appellant is said to have done, when, where and how he is said to have done it. He can have been under no misapprehension as to why he is being sought. The fact that the warrant is not as well presented or expressed as it might be is neither here nor there. There is sufficient validity. To require it to provide further details as a pre-condition of validity would frustrate the principles of mutual trust and co-operation which underpin the European Arrest Warrant scheme. In particular, it would run counter to one of the key aims of the scheme to insist that the warrant be expressed in language which would enable the court to identify the ingredients of an English offence in circumstances where the framework list is ticked and dual criminality is therefore not a relevant requirement.[9]For my part, I am in full agreement with Ms Kapila's written submissions, which I am content to adopt as part of my reasoning. What is set out in box E of the warrant is plainly not a broad omnibus description of the kind disapproved in Von der Pahlen. It condescends to particulars, albeit they are not well expressed. When those particulars are read in the light of the fact that the offence is an offence against property and an offence of fraud, the circumstances in which the appellant is alleged to have committed the offence are sufficiently clear and detailed to constitute compliance with the requirement in section 2(4)(c) of the Act. I entirely agree with the District Judge's comments about the warrant. It is plainly not a warrant to be held up as a model of its kind but in my judgment it is nonetheless valid.

MR JUSTICE OWEN: I agree.

LORD JUSTICE RICHARDS: Thank you both very much. The appeal is therefore dismissed.

[12]MR KEITH: May I ask for a detailed assessment of costs?

LORD JUSTICE RICHARDS: You may indeed. Thank you very much.