Kuchta v District Court of Czestochowa (Poland) [2010] EWHC 432 (Admin)

Case No CO/13624/2009[2010] EWHC 432 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 24th February 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OWEN
MR JUSTICE CALVERT-SMITH
Between
ANDRZEJ KUCHTAClaimantv
Between
DISTRICT COURT OF CZESTOCHOWA (POLAND)Defendant
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 J Atlee (solicitor advocate)(instructed by Messrs Atlee Chung) appeared for ClaimantMs C Bramwell (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE OWEN: This is an appeal against the decision of Senior District Judge Workman sitting in the City of Westminster Magistrates' Court made on 12th November 2009 to extradite the appellant to Poland, a Part 1 territory. Extradition had been sought by the judicial authority of the District Court of Czestochowa to execute a custodial sentence of 12 months' imprisonment in respect of an offence which, had it occurred in the United Kingdom, would have amounted to an offence of assault occasioning actual bodily harm.[2]The offence was committed on 17th July 2002 and on 4th April 2003 the appellant was sentenced to 12 months' imprisonment, the sentence then being suspended. But, on 15th February 2006, the court ordered that the suspended sentence take effect.[3]The European Arrest Warrant was issued on 30th October 2008 and certified on 16th March 2009. The appellant was arrested under the warrant on 29th May 2009.[4]It is the appellant's case that the European Arrest Warrant was defective and in consequence was not an enforceable judicial decision within the meaning of Article 8(1) of the Council Framework Decision 2002, 584/JHA ("the Framework Decision"). It is submitted on his behalf that the warrant did not comply with the mandatory format envisaged by the Framework Decision in two respects, namely:
"1. The date of the enforceable judgement was stated to be 14th April 2003. However on that date the sentence was suspended. The date of the enforceable judgment was 15th February 2006, which was the date on which it was activated. Before that date it had not been enforceable, because it had not been activated. 2. The facsimile number disclosed in the warrant was not an operational number, preventing direct communication by facsimile on behalf of the Appellant with the Judicial Authority."
[5]The relevant law can be shortly stated. Article 8 of the Framework Decision governs the form and content of the European Arrest Warrant. It provides that such a warrant shall contain inter alia the following information:
"(a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and email address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2."
It is not necessary for present purposes to set out the remaining paragraphs of Article 8(1).[6]So far as the law of England and Wales is concerned, the effect of sections 2(1) and (2) and section 3 of the Extradition Act 2003 is to provide that a Part 1 warrant received in a conviction case shall contain the information contained in section 6 of the Act. Section 6 sets out the information which is required in the following terms:
"(a) particulars of the person's identity; (b) particulars of the conviction; (c) particulars of any other warrant ... (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."
[7]Both the arguments now relied upon were advanced before the Senior District Judge. As to the first, he said this:
"It is clear from the further information from the Polish Judicial Authority that 14th April 2003 is correctly recorded as the date on which the enforceable judgment was entered but at that time the sentence was suspended. On the 15th February 2006 the court ordered that suspended sentence to take effect. I am satisfied that the warrant correctly describes the judgment as being on the 14th April 2003 which was when the original sentence was imposed."
[8]That is a conclusion with which I am in full agreement. The sentence of imprisonment that the judicial authority now seeks to execute was imposed on 14th April 2003. That was the enforceable judgment within the meaning of Article 8(1)(c). The fact that the sentence was originally suspended, and that the suspension was subsequently removed, is in my judgment now irrelevant.[9]As to the second ground on which Mr Atlee seeks to rely, the learned

judge said this:

"A fax number was included in the warrant but I have evidence from a Solicitor in Mr Atlee's firm that the number was dialled on a number of occasions but was not successfully connected."
A little later:
"The evidence before me is that no contact was made on that telephone number but I do not know whether this was due to an error in recording the number or whether there were some technical difficulties which prevented contact by fax. I am satisfied that all the information required of the Judicial Authority is included."
[10]That is it also an analysis and conclusion with which I agree. The evidence before the court does not establish that the fax number given on the European Arrest Warrant was incorrect. It simply establishes that, on the occasions upon which the appellant's solicitors attempted to send a fax to the judicial authority, its machine was not functioning for whatever reason. But in any event I am satisfied that, as was submitted in helpful written submissions on behalf of the respondent, there cannot be said to have been a substantive departure from the requirements of Article 8(1) of the Framework Decision. The warrant set out the address, contact telephone number and email address of the judicial authority. There is no evidence to suggest that communication with the judicial authority by any of those means would not have been possible.[11]It follows that in my judgment the District Judge was correct in his conclusion. I also agree with his closing sentence when addressing this issue, which was in the following terms:
"The argument is ingenious but verges on the absurd."
In my judgment, this appeal is devoid of any merit.

MR JUSTICE CALVERT-SMITH: I agree.

[13]MR JUSTICE OWEN: The appeal is therefore dismissed, Mr Atlee. Thank you for your written assistance, Ms Bramwell.[14]MS BRAMWELL: Thank you.

Cited in 3 later judgments