Michalak v The Circuit Court, Second Criminal Division In Olsztyn, Poland [2010] EWHC 2150 (Admin)

Case No CO/5235/2010[2010] EWHC 2150 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/08/2010
Before
LORD JUSTICE STANLEY BURNTON
Between
ARIEL JAN MICHALAKAppellantTHE CIRCUIT COURT, SECOND CRIMINAL DIVISION IN OLSZTYN, POLANDRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
James Stansfeld (instructed by Kaim Todner LLP) for AppellantLauren Rafter (instructed by the CPS) for RespondentHearing Hearing dates: 23 July and 9 August 2010
JudgmentLord Justice Stanley Burnton :Introduction
[1]This is an appeal against the order for the appellant’s extradition to Poland made by District Judge Riddle sitting at the City of Westminster Magistrates’ Court on 28 April 2010. It raises the question as to the effect of errors in a European Arrest Warrant (“EAW”) on the validity of the warrant for the purposes of Part 1 of the Extradition Act 2003 (“the Act”).[2]The EAW was issued by a Polish Judicial Authority on 27 May 2009 for the arrest and extradition of the appellant, a Polish national, in respect of his convictions by criminal courts in Poland for which he received a sentence of 12 years’ imprisonment, of which he has 5 years, 7 months and 27 days remaining to serve. The EAW was duly certified by SOCA on 26 November 2009. The appellant was arrested on 21 January 2010 and produced at the Magistrates’ Court the following day for an initial hearing. The appellant did not consent to his extradition. No issues were raised under sections 4 or 7. After a number of adjournments at the request of the appellant, a full hearing took place on 9 April 2010, when the appellant gave evidence. The District Judge reserved his judgment, which he handed down on 28 April 2010.[3]The issue taken before the District Judge, and before this Court, is whether the EAW fails to comply with the requirements of the Act by reason of inaccuracies in its contents. Section A of the Warrant correctly identifies the appellant. Section B sets out the decisions on which the warrant is based as follows:
“Enforceable judicial decision having the same effect: • Decision by the Circuit Court in Elblag, … over Enforcement of Court Decisions Division of January 29, 2008, on ordering search for the convict by means of arrest warrant. Enforceable judgment: • culprit sentence by the Circuit Court in Olsztyn of April 28, 2009, in proceedings II K 45/09 combining the penalties of custodial sentence imposed by the judgment of the Circuit Court in Olsztyn of December 4, 2001 in proceedings II K 266/00 and the judgment of the District Court in Ostroda of June 26, 2007, in proceedings II K 263/07 (the judgment became absolute on May 6, 2009).” • Decision by the Circuit Court in Elblag, … over Enforcement of Court Decisions Division of January 29, 2008, on ordering search for the convict by means of arrest warrant. Enforceable judgment: • culprit sentence by the Circuit Court in Olsztyn of April 28, 2009, in proceedings II K 45/09 combining the penalties of custodial sentence imposed by the judgment of the Circuit Court in Olsztyn of December 4, 2001 in proceedings II K 266/00 and the judgment of the District Court in Ostroda of June 26, 2007, in proceedings II K 263/07 (the judgment became absolute on May 6, 2009).”
[4]In Box C it was stated that the custodial sentence imposed was 12 years and the remaining sentence to be served is 12 years. No point is taken on this. The defects in the EAW relied upon by the appellant are in Box E, setting out the relevant offences:(i) Offence I was “acting jointly and in agreement with other persons in an organized criminal group, … he committed burglary to shops and vehicles “and attempted at committing such burglaries”.(ii) Offence II stated that during a specified period and in agreement with others in an organised armed criminal group “threatening with immediate application of violence and calling for violence, he committed acts of banditry using firearms …. for the purpose of appropriation” of certain property.(iii) Offence III was that the appellant had used “as an authentic VW Golf car with adulterated body number ….”(iv) Offence IV was the possession of an unlicensed pistol.(v) Offence V was burglary of a shop.[5]Paragraph 3 of Box E set out the applicable provisions of the Polish criminal code. In relation to offence II, it referred to the provision (article 280 paragraph 2) relating to robbery with a firearm as well as to the provision (article 280 paragraph 1) relating to robbery without a firearm. The provision cited in relation to offence III included forgery, and so made it clear that it was an extradition offence.[6]Box B1 contains the list of offences to which the warrant applies. The offences, the boxes of which had been marked with a cross, are participation in a criminal organisation and organised or armed robbery.[7]Before the District Judge, it was argued that the warrant did not comply with section 2 on the ground that it incorrectly particularises convictions, including convictions for which the appellant has been acquitted, and fails to identify with clarity the dates and court of the convictions. The appellant’s solicitors had obtained from the District Court of Olsztyn a copy of the ruling of the Court of Appeal in Bialystok dated 23 December 2002 on an appeal by, among others, the present appellant from the judgment of that District Court dated 4 December 2001 under file reference II K 266/00. The translation into English is by no means easy to understand, but it seems that the reference to attempted burglaries in offence I was eliminated. On the other hand, the Court of Appeal judgment “establishes that the organised crime group” of which the appellant was a member “was of armed nature from the summer of 1999”. The Court of Appeal found that the appellant had used a gas pistol rather than a firearm and also a training machine gun. He was found not guilty of an offence, apparently that in relation to the VW Golf motor car. The Court of Appeal imposed a combined sentence of 12 years’ imprisonment plus a fine.[8]The District

Judge said:

“On the face of the evidence, the most likely explanation is the one given by the defence: some of the offences specified in the warrant were in fact overturned, wholly or partially, on appeal. There are other possibilities. One is that we have misinterpreted the decision of 23 December 2002. Another is that there were subsequent proceedings when the convictions were restored. Yet another is that in Poland the original conviction continues to be referred to despite subsequent variations. If it mattered I would seek clarification. But does it? The warrant is clear on the face of it. The defendant appears to be … fully familiar with the proceedings that have led to the issuing of the warrant. The sentence imposed, and the remaining sentence to be served, are agreed. He knows precisely why he is wanted and the length of the outstanding sentence he has to serve. Even assuming that there are mistakes in details on the warrant, and even assuming that the offences specified include offences for which he has been subsequently acquitted on appeal, he has sufficient details to enable him sensibly to understand what he has been convicted of and sentenced for. In short, he knows why he is required and the length of the sentence still to serve.”
[9]On 23 July 2010 the appeal was listed to be heard by a Divisional Court consisting of myself and Nicol J. In essence, the parties presented the same arguments as had been made to the District Judge. We decided to seek clarification of the legal position in Poland from the issuing judicial authority. That clarification was received in a letter dated 29 July 2010. The Circuit Court confirmed that a sentence of 12 years imprisonment had been imposed on the appellant in respect of two cases, that in the Circuit Court in Olsztyn of December 4, 2001 in proceedings II K 266/00 and that of the District Court in Ostroda of June 26, 2007, in proceedings II K 263/07: in other words, the cases mentioned in the EAW. The judgment in the first of those cases had been amended by the judgment of the Court of Appeal in Bialystok of 23 December 2002. The Court of Appeal had amended in part the judgment of the court of first instance in that the appellant had been acquitted of offence III in the EAW, so that “Currently then that offence is no longer the base for requesting surrender of [the appellant]”. The letter continued:
“…In addition to that, the Court of Appeal also made amendments in the legal qualification of the offences attributed to the convict. Nevertheless, they have no material influence on his penal liability. In particular, the Court of Appeal in no case eliminated from the legal base for sentencing Ariel Jan Michalak the provisions concerning committing robbery and only established that the convict committed numerous cases of robbery using not the firearms but gas arms and illegally possess school (training) machinegun, as a consequence of which it changed the legal qualification from article 280 paragraph 2 of the penal code (committing robbery by the offender using firearms or other dangerous tool) to article 280 paragraph 1 of the penal code (committing ordinary robbery). The Court of Appeal also upheld in force the findings concerning operation of the convict within the frameworks of the organised criminal group (qualification according to article 258 paragraph 2 of the penal code). The Court of Appeal also amended part of the legal qualification as concerns attributed to the convict offences of burglary by eliminating from that qualification the provision of article 13 paragraph 1 in connection with article 279 paragraph 1 of the penal code in connection with article 258 paragraph 2 of the penal code (attempted burglary within the frameworks of the organised criminal group). That amendment does not change in any way the fact that the convict was attributed with committing numerous offences of burglary in case of which the qualification according to article 279 paragraph 1 of the penal code in connection with article 258 paragraph 2 of the penal code (committing burglary under conditions of organised criminal group) was assumed. As a consequence, as concerns the core issue (guilt of the convict and committing by him the offences attributed to him) the judgment by the Circuit Court in Olsztyn was not changed. The Court of Appeal, considering the above indicated changes to the legal qualification as well as the fact of acquitting Ariel Jan Michalak from the above indicated offence of using the VW Golf car with forged body numbers imposed on Ariel Jan Michalak the new culprit sentence of 12 years of custodial sentence. …Those differences, except the acquittal from use of the VW Golf car with forged body numbers, are formal in character with minor significance for the penal liability of the convict. .… I would like to stress, that with absolute certainty the objections presented by the convict specified in your letter that the European Arrest Warrant issued by our Court is invalid as a consequence of not considering the amendments made by the court of second instance are not based on truth. As mentioned above, the Court of Appeal actually made the listed amendments to the judgment by the Circuit Court in Olsztyn, however, the guilt of the convict and committing by him numerous serious offences were not questioned. He was attributed not only with operating within the organised criminal group but also committing several tens of burglaries and robberies.”
[10]The hearing of the appeal was resumed before me, sitting alone in vacation, on 9 August 2010. For the appellant, Mr Stansfeld reiterated his submission that the EAW does not comply with section 2. He submitted that the fact that the appellant was not misled by the warrant, in that he knew the result of his appeal to the Court of Appeal, of what offences he had been acquitted and what convictions were extant, and the sentence imposed, and in that respect was not prejudiced by the errors in the warrant, could not be a valid or lawful criterion for determining the validity of a warrant. Extradition involves a major interference with the liberty of the individual, and the statutory requirements should be strictly complied with. The warrant was void ab initio, and it could not be saved by information subsequently provided by the issuing authority. The remedy of the issuing judicial authority was to issue a new and correct warrant.[11]For the respondent, Miss Rafter submitted that the errors in the warrant are minor. This is a conviction warrant: there is no question of the appellant being tried in Poland for an offence for which he has been acquitted, and his extradition is sought for him to serve the unexpired part of an unquestioned sentence. The warrant was valid and the appeal should be dismissed.[12]Section 2 of the Act, so far as material, is as follows: 2. Part 1 warrant and certificate(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains– (a) the statement referred to in subsection (3) and the information referred to in subsection (4), or (b) the statement referred to in subsection (5) and the information referred to in subsection (6).(3) The statement is one that– (a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, 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 prosecuted for the offence.(4) The information is– (a) particulars of the person’s identity; (b) particulars of any other warrant issued in the category 1 territory for the person´s arrest in respect of the offence; (c) 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; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.(5) The statement is one that– (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction 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.(6) The information is– (a) particulars of the person´s identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person´s arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) 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. … (a) the statement referred to in subsection (3) and the information referred to in subsection (4), or (b) the statement referred to in subsection (5) and the information referred to in subsection (6). (a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, 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 prosecuted for the offence. (a) particulars of the person’s identity; (b) particulars of any other warrant issued in the category 1 territory for the person´s arrest in respect of the offence; (c) 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; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it. (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction 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. (a) particulars of the person´s identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person´s arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) 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.[13]In the present case, no question arises in respect of the information required by subsection (6) other than that required by paragraph (b). So far as that is concerned, it does contain particulars of the relevant convictions. It also contains particulars of one offence, i.e., offence III, of which the appellant was acquitted, but in my judgment in the case of a conviction warrant this will not necessarily invalidate the warrant. The other errors are relatively minor. The fact that a gas pistol is not regarded as a firearm under Polish criminal law is relatively inconsequential. The warrant correctly refers to the conviction for robbery without a firearm. I say the same about the inclusion of the reference to attempts in offence I.[14]What is important is that none of these errors affect the fact that the sentence imposed was indeed 12 years’ imprisonment, and it is the unserved part of that sentence that the appellant will serve if he is extradited: c.f. Pilecki v Circuit Court of Legnica, Poland [2008] EWHL 7, [2008] 4 All ER 445. In my judgment, given the relative unimportance of the errors in the warrant, they do not materially mislead the appellant.[15]It is not every error in a EAW that will invalidate it. In Pietrzak v Regional Court in Wloclawek, Poland 2008] EWHC 2138 (Admin), the error was in the length of service still to be served. On one view, that error is more important than those in the present case. The warrant was upheld. Latham LJ said: 15. …, no question here arises as to what the consequence would be if the statement as to the period to be served was demonstrably wrong, and there was a real risk that the requesting state would not accept that that was an inaccurate statement. The same is true in the present case: there is no question of the appellant serving a sentence other than the remainder of the 12 years’ imprisonment, or of his being punished for any of the matters to which the EAW incorrectly referred.[16]I entirely accept that if a warrant lacks essential information, it is void and cannot be rescued by information subsequently provided by the issuing authority: Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6 [2007] 2 WLR 254 at [50]. But the defect in the present case is not the omission of essential information: it is the inclusion of additional, incorrect information. The appellant seeks to rely on information outside the EAW, namely the decision of the Court of Appeal, to show that there are errors in the warrant. It would be inconsistent not to take account of that information in deciding whether the warrant should be enforced. Furthermore, the new information is evidence within section 202, which envisages that a document signed by a judge of the territory in question may be received in evidence, presumably with a view to deciding whether or not a person should be extradited.[17]I also accept the importance of complying with the statutory requirements in the present context, which concerns the deprivation of the liberty of the individual: Office of the King’s Prosecutor, Brussels v Cando Armas [2005] EWHL 67 [2006] 2 AC 1 at [24]. On the other hand, this Court is required to take into account the purpose of the Council Framework Decision which led to the enactment of Part 1 of the Act. The recitals to that Decision were referred to by Lord Bingham in Cando Armas: 4. The purpose of the Council Framework Decision is clearly outlined in recitals (5), (6), (10) and (11) of the preamble:
"(5) The objective set for the union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. "(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial co-operation …" "(10) The mechanism of the European arrest warrant is based on a high level of confidence between member states. Its implementation may be suspended only in the event of a serious and persistent breach by one of the member states of the principles set out in article 6(1) of the Treaty on European Union, determined by the Council pursuant to article 7(1) of the said Treaty with the consequences set out in article 7(2) thereof. "(11) In relations between member states, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition."
Article 1 of the Framework Decision defines the European arrest warrant for which provision is made and imposes an obligation on member states to execute it:
"1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. "2. Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision." "(5) The objective set for the union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. "(6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial co-operation …" "(10) The mechanism of the European arrest warrant is based on a high level of confidence between member states. Its implementation may be suspended only in the event of a serious and persistent breach by one of the member states of the principles set out in article 6(1) of the Treaty on European Union, determined by the Council pursuant to article 7(1) of the said Treaty with the consequences set out in article 7(2) thereof. "(11) In relations between member states, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition." "1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. "2. Member states shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision."
[18]In Lacorre v High Instance Court of Paris [2008] EWHC 2871 (Admin), the Divisional Court considered an EAW that specified 2 charges. The Court held that in respect of one of the charges the warrant failed to identify an extradition offence. It ordered that the extradition should proceed on the other charge alone. Thus the warrant was not invalidated ab initio, or at all. If the present were a prosecution warrant, it would have been open to this Court similarly to order that the extradition should proceed on only some of the offences mentioned in the warrant. As it is, this being a conviction warrant, the question does not arise.[19]It seems to me that to hold that the EAW in the present case was void ab initio would be inconsistent with the principle of mutual recognition.[20]For these reasons, I have concluded that the District Judge was right to order extradition. The appeal will be dismissed.