Biszczak v District Court In Lublin Poland [2012] EWHC 2973 (Admin)

Case No.CO/7856/2012, CO/5876/2012[2012] EWHC 2973 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Date: Friday, 12 October 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE WYN WILLIAMS
Between
BISZCZAKAppellantv
Between
DISTRICT COURT IN LUBLIN POLANDRespondentTHE QUEEN ON THE APPLICATION OF BISZCZAKClaimantvSECRETARY OF STATE for HOME DEPARTMENTDefendant
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 7404 1424(Official Shorthand Writers to the Court)
Ms U Bhatt (instructed by Guney Clark Ryan) appeared for AppellantMr A Harbinson (instructed by the Crown Prosecution Service) appeared for RespondentThe Claimant appeared in person for in personMr G Lewis (instructed by the Crown Prosecution Service) appeared for Defendant
Judgment
[1]MR JUSTICE WYN WILLIAMS: I have before me two distinct sets of proceedings: one is an extradition appeal; the second is a renewed application for permission to apply for judicial review. Let me begin by saying that I do not propose to adjourn the renewed application for permission to apply for judicial review. I will explain why in that part of my judgment which deals with the renewed application.[2]First, then, the extradition appeal. The District Court in Lublin seeks the surrender of the appellant in relation to a European Arrest Warrant issued by a judge on 13 March 2012 and certified by the Serious Organised Crime Agency on 25 June 2012. The Judicial Authority says that the appellant's surrender is sought so that he may be prosecuted for two offences committed on 18 January 2009, offences of assaulting and insulting police officers. In respect of the second offence of insulting police officers, it was accepted before the magistrates' court on behalf of the Judicial Authority that such an offence did not satisfy the relevant section of the Extradition Act 2003. However, the appellant, subject to all other considerations, would be extraditable in respect of the other offence (that is, assaulting a police officer).[3]The relevant procedural history is that the appellant was arrested on 11 July 2012 and produced before District Judge Snow on 12 July. He was then represented by a solicitor from the firm of Lawrence & Co. An issue was raised about an aspect of the arrest statement of Detective Constable Sikhu which was resolved in favour of the Judicial Authority. The appellant did not consent to extradition at that hearing. The hearing was adjourned so that he could investigate whether or not grounds existed to oppose extradition.[4]On 19 July, the appellant appeared again. He was represented by a different solicitor but from the same firm of solicitors, Lawrence & Co. However, at the outset of the hearing, the solicitor, Mr Oliver, informed the district judge that the appellant no longer wished to instruct Lawrence & Co. The district judge invited the appellant to confirm this and he did so, asking that the hearing be adjourned so that he could instruct a new firm of solicitors. In due course, after some debate no doubt, the application to adjourn was refused. The appellant was then asked if he had anything to say about why he should not be extradited. He said nothing, or at least virtually nothing, and his extradition was ordered.[5]In due course, the appellant lodged a Notice of Appeal. The Notice of Appeal itself did not identify, at least in any detailed form, the grounds which the appellant would take upon an appeal. However, the grounds upon which he relies are those which are set out in a skeleton argument presented on his behalf by his counsel, Ms Bhatt, the skeleton being served recently.[6]Essentially, Ms Bhatt takes two points in support of the appellant's appeal. She first poses the question: does the warrant (that is the European Arrest Warrant to which I have referred) require the appellant for interrogation or for prosecution? She submits that since, at the very least, it is unclear, the warrant does not comply with the relevant statutory provisions.[7]There is no dispute about the relevant law. The leading case is Asztaslos v Szekszard City Court, Hungary [2010] EWHC 237 (Admin). During the course of his judgment, Aikens LJ, sitting in the Divisional Court, held:
"16. In a number of cases since the Act was passed, the courts have had to consider the issue of whether the request for extradition (or more correctly in the language of the Framework Decision, the request for 'arrest and surrender') is made for the purpose of the requested person being prosecuted for an offence as an accused person, or for the purpose only of conducting an investigation to see whether that person will be prosecuted. If an EAW has been issued by a requesting state as an 'accusation case' warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of section 2(2) and (3). Accordingly, Part 1 of the Act will not apply to it: see the Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott of Foscote."
[8]At paragraph 7 of her skeleton argument, Ms Bhatt sets out principles which are to be derived from Aikens LJ's statement of principle. I need not read them into this judgment; they are uncontroversial. Ultimately, the issue of whether or not the warrant is properly to be regarded as an accusatory warrant depends upon the application of the principles set out in the judgment of Aikens LJ to the facts of the particular case.[9]In support of her submission that the warrant does not comply with the relevant statutory criteria, Ms Bhatt submits that the warrant does not use the precise language contained within the annex of the Framework Decision. Further, she points to parts of the warrant which she submits are at the very least ambiguous as to the true purpose for which the warrant is being sought. In particular, she relies upon the phrase "temporary arrest", which appears in box B1 of the warrant. Overall, submits Ms Bhatt, I cannot be satisfied that this warrant complies with the statutory provisions as interpreted in the case to which I have just referred.[10]In response, Mr Harbinson submits that it is clear, reading the warrant as a whole, that it is an accusatory warrant. He submits the warrant sets out the judicial decision on which it is based; details of the acts which are attributed to the requested person as "accused"; the legal classification of the offences giving rise to the warrant; and the maximum sentences for those offences in the requesting jurisdiction. He submits that, reading the warrant as a whole, the inescapable inference is that the requested person is accused of two offences and his surrender is sought for the purposes of conducting a criminal prosecution of those matters. I agree with his submissions. I have sought to apply faithfully the principles to be discerned from the case to which I have referred, and doing so I am completely satisfied that, read as a whole, this warrant is an accusatory warrant and compliant with the statutory provisions. Accordingly, in my judgment, there is nothing in the first point upon which the appellant relies.[11]The second ground upon which the appellant seeks to uphold an appeal is his reliance upon section 14 of the Extradition Act 2003. That reads:
"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 ..."
[12]In this case, the offence is alleged to have been committed in 2009. In his witness statement, sworn for the purposes of this appeal, the appellant sets out what he submits are evidential bars to a fair trial in Poland given the time which has now elapsed. In my judgment, the answer to this point is to be found in the skeleton served by Mr Harbinson on behalf of the Judicial Authority. He relies on the decision in Gomes v Trinidad and Tobago [2009] UKHL 21 and in particular the passage at paragraph 35 which says:
"Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial — whether by an abuse of process jurisdiction like ours or in some other way."
[13]Mr Harbinson submits that I have to proceed on the basis that the Polish trial system will have in place sufficient safeguards to counteract the alleged unfairness which might arise as a result of passage of time in this case. It seems to me that that is correct. The appellant's passage of time argument is founded upon the suggestion that he could not receive a fair trial. He does not, for example, suggest that it would be unjust or oppressive for any other reason.[14]Accordingly, I have reached the conclusion that this appeal must fail.[15]I turn to the renewed application for judicial review. The proceedings for judicial review were issued on 7 June 2012. In those proceedings, the appellant sought an order quashing the decision of the Secretary of State for the Home Department refusing to revoke a deportation order which had previously been made and, further, the setting of removal directions which had taken place shortly after her refusal to revoke the deportation order.[16]In my judgment, in order to assess the potential strength of the judicial review application, it is instructive to recite substantial parts of the immigration history. The claimant, as he is in these proceedings, arrived in the United Kingdom on 23 October 2007. On 17 September 2008 he was convicted of driving a motor vehicle with excess alcohol and sentenced to a fine and a disqualification from driving. On 2 September 2010, he was convicted of destroying or damaging property, possessing Class B controlled drugs, and failing to surrender to custody at an appointed time. On this occasion, he was sentenced to a community order as well as a fine. On 21 June 2010, the claimant was convicted of inflicting grievous bodily harm. Approximately one month later he was sentenced to 16 months' imprisonment for that offence.[17]Against that background, on 11 February 2011 the defendant decided to make a deportation order. She gave long and detailed reasons for her decision. She specifically took account of the relevant European regulations and in particular regulation 21(3). She took account specifically of the following issues: whether the decision complied with the principle of proportionality; whether or not the decision was based on the personal conduct of the person concerned; whether or not the person represented a genuine present and sufficiently serious threat affecting one of the fundamental interests of society; other matters which might be relevant; and the clear statement that a person's previous criminal convictions do not of themselves justify the decision.[18]As was his right, the claimant appealed against the decision to make a deportation order. It suffices, as I say, that his appeal was dismissed by the First-tier Tribunal and his requests for permission to appeal were refused both by the First-tier and the Upper Tribunal in due course so that his appeal rights became exhausted. Undeterred, the claimant applied for asylum. He did that prior to 22 October 2011. On that date, his asylum application was refused and the claim certified. On 17 April 2012, the claimant requested the defendant in effect to revoke the deportation order. That was refused on 24 April 2012, and in due course removal directions were set.[19]It is against that background that I must consider the alleged unlawfulness of the refusal to revoke the deportation order and the setting of removal directions. I will be the third judge, in effect, to consider the lawfulness of those decisions. The application for judicial review was considered on the papers by Mr Robin Purchase QC who refused permission. Shortly thereafter, Haddon-Cave J had to consider the applicant's grounds in the context of a claim for interim relief. He refused the claim for interim relief, citing as one of his main reasons for so doing the fact that he considered that the Secretary of State's action as to that point has been entirely lawful.[20]I have scrutinised the grounds of claim with care. Essentially, there are a myriad of claims related to the procedures to which the claimant has been subjected since he first arrived in this country, and more particularly since the deportation order was made in February 2011. However, I am unable to detect any ground within his written material which suggests that the decisions which I have identified were arguably unlawful.[21]During the course of this hearing, it was the appellant himself who addressed me on the judicial review aspect. Miss Bhatt appeared only to represent him in the extradition appeal. At the forefront of his submission to me in relation to the judicial review was that I should adjourn the renewed application. He said that because initially his renewed application had been fixed for hearing on 13 or 16 January next year and that he wished that hearing date to be maintained so that he could, if possible, instruct a lawyer and therefore be in a better position to deal with the renewed application.[22]I should say that the renewed application was relisted for today's date so that it could be heard at the same time as the extradition appeal. It seems to me that that was an obvious step for those organising the court lists to take, in conjunction with the views of the judge in the Administrative Court. It would not be a sensible course of action for the extradition appeal and the renewed application to be heard at different times, thereby potentially frustrating a just outcome in both claims. So I fully understand why it was that the hearing scheduled for January next year was brought forward. However, it has to be noted that the claimant could not have been given very much notice of the listing of his renewed application. Mr Lewis, on behalf of the defendant, knew of it on or about 8 October; of course, it is 12 October today. The claimant tells me that he did not know of it until this morning and I acknowledge that that is at least a possibility.[23]Had I considered(a) that there was any realistic prospect that a lawyer could make any difference to the renewed application, or(b) that there was a realistic prospect that Mr Biszczak would instruct a lawyer, I would have had to think long and hard about whether or not to adjourn the renewed application. The plain fact is, however, that Mr Biszczak, the claimant, has not instructed a lawyer in immigration matters since 2010. Further, he has a history of falling out with his lawyers at the last moment. More importantly than either of those considerations, however, is this: there is simply no prospect that a lawyer could persuade this court that there was anything at all in this renewed application for judicial review. The plain fact is it is completely hopeless, as has been recognised by Mr Purchase QC and by Haddon-Cave J.[24]Accordingly, and although it might be thought to be a strong step to take, I did not think it appropriate to adjourn the renewed application for permission to apply for judicial review. The result of all this is that the extradition appeal is dismissed, as is the renewed application to apply for judicial review. Thank you.[25]MR BISZCZAK: Can I ask something, your Lordship? Can I have receipt because I know I've got 14 days to apply to the Court of Appeal.

MR JUSTICE WYN WILLIAMS: In relation to your extradition appeal --

[27]MS BHATT: No, no, I've got the lawyer. In relation to my deportation case.[28]MR JUSTICE WYN WILLIAMS: In relation to the deportation case, you have the right to ask for permission to apply to appeal.[29]MR BISZCZAK: Yes, yes, I know that. That's the direction, my Lord.[30]MR JUSTICE WYN WILLIAMS: I will make it easy by refusing permission to appeal in the deportation case so that you can, if you think it appropriate, apply directly to the Court of Appeal for permission to appeal. That will speed the process. All right? Thank you.[31]MS BHATT: My Lord, I am sorry. I would be grateful for an assessment of our legally-aided costs.

MR JUSTICE WYN WILLIAMS: Yes, certainly.