Wisniewski, R (on the application of) v Regional Court in Elblag [2012] EWHC 3040 (Admin)

Case No CO/7603/2012[2012] EWHC 3040 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 19 October 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF WISNIEWSKIClaimantv
Between
REGIONAL COURT IN ELBLAGDefendant
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)
Miss Unnati Bhatt appeared for ClaimantMiss Katherine Tyler appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an appeal under Section 26 of the Extradition Act 2003 against the decision of a district court judge to send the appellant back to Poland to serve sentences of imprisonment imposed for a number of different offences. There are in fact three lots of offences and three sentences. The first in point of time is an offence of theft committed between December 2004 and February 2005 for which he received eighteen months' imprisonment; then an assault on a police officer and an attempt to sell marijuana which resulted in an 18-month sentence in June 2006; and, finally, committing what is described as battery with bodily harm with others in October 2008 which resulted in a twelve-month prison sentence.[2]It is not clear from the warrant whether those sentences were imposed to run consecutively or concurrently. But whatever the position, he has to serve at least eighteen months' imprisonment for the offending in question.[3]The ground relied on in this appeal is that each of the convictions and sentences were imposed by a court which consisted of a judicial assessor. Judicial assessors have been considered by the Polish Constitutional Court and by the European Court of Human Rights. It has been decided by the European Court that such use of assessors was contrary to Article 6 because, putting it broadly, the assessors had no security of tenure. It is not suggested that any of the assessors were either incompetent (in the sense of not being capable of carrying out the judicial duties which they had to carry out) or that in any particular case they were influenced by, for example, a minister or anyone else to reach decisions which a judge who had security of tenure would not have been persuaded to reach because he was not vulnerable to removal if he refused to do what was suggested. That would really arise, if at all, from ministerial pressure on the basis that the minister was able to affect the continuing tenure of an assessor. That is a matter that becomes clear from the decision of the European Court of Human Rights, to which I will refer shortly.[4]The Polish Constitutional Court decided that assessors should not be used, and that was before the court at Strasbourg reached its conclusion. That decision by the Constitutional Court came too late to cover the convictions and sentences which are in issue in this case. I gather that since 2009 assessors have not been used in Poland, at least not any who do not have the necessary security of tenure to ensure that their decisions are in conformity with what is required by Article 6 of the European Convention on Human Rights.[5]The matter came before the European Court of Human Rights in Urban v Poland No 23614/O8, becoming final on 28 February 2011. Both the applicants in that case had been charged with what were described as administrative offences of refusing to disclose their identity to the police, and one of them was also charged with using offensive language in a public place. The penalties imposed following conviction were fines of a relatively modest sum. There was no question of a custodial sentence in either of the cases.[6]The issue was whether in the circumstances the use of assessors was a breach of Article 6. The assessors were, as the court recalls in paragraph 47 - "47 ..... appointed by the Minister of Justice provided that they met a number of specific conditions stipulated in the 2001 Act ..... The Minister could confer on an assessor the authority to exercise judicial power in a district court, subject to approval by the board of judges of a regional court and for a period not exceeding four years ..... Under [the relevant provision of the Act] the Minister could remove an assessor, including those who were vested with judicial powers. [But to do so] had to secure the approval of the board of judges of a regional court."[7]The Constitutional Court in a decision in October 2007 decided that the position of assessors fell short of the constitutional requirements because they did not enjoy the necessary guarantees of independence, so there was a breach of the constitution regarding Article 6 of the European Convention on Human Rights.[8]The Constitutional Court decided that it was not in the circumstances necessary to require that there was a re-opening of cases which had been decided by assessors as a general proposition because of the principle that there should be finality, and it was in the circumstances unnecessary to enable the matter to be re-opened.[9]That decision by the Constitutional Court was considered by the European Court of Human Rights because the Court itself had to consider and did consider whether, in the circumstances, there was a breach which needed some sort of remedy to be provided. The Court (in paragraph 56 of its judgment) noted that there was a general power to re-open cases where an international court had decided that there was a breach of an international obligation by Polish authorities in any particular respect, so as to enable an individual affected by such a breach to apply for a rehearing or reconsideration. That power need not be exercised as a general proposition in cases involving what I will loosely describe as the misuse of assessors.[10]In paragraph 56 of its judgment the European Court said:
"56 The Court notes that the domestic law provides for a possibility of re-opening of criminal proceedings when such a need results from a judgment of the Court ..... However, in light of the reasons underlying the finding of a violation in the present case and having regard to the principle of legal certainty as expounded in the Constitutional Court's judgment and its own case-law (see paragraphs 64-65 below), the Court considers that in the present case there are no grounds which would require it to direct the re-opening of the applicants' case [refer Öcalan v Turkey (dec.), No 5980/07, 6 July 2010]. The Court would not exclude that it might take a different approach in a case where, for example, the circumstances of a particular case give rise to legitimate grounds for believing that the Minister had or could reasonably be taken to have an interest in the proceedings."
That, it is not suggested applies at all to the circumstances of this case.[11]I move on therefore to what the court said in paragraphs 64 and 65. One finds the court saying that it - "64 ..... notes that the judgment of the Constitutional Court identified a structural dysfunction and called for a legislative response." That response was given. The structural dysfunction was removed as of 2009. The structural dysfunction is the lack of security of tenure of assessors. The court went on:
"64 ..... In this regard, the Court notes that the Constitutional Court devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings. In particular, it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned. Further, it emphasised that the finding of unconstitutionality concerned institutional provisions, that is, provisions regulating the composition of the bodies which gave final rulings. The Constitutional Court considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it ..... Consequently, the Constitutional Court held in the operative part of the judgment that its ruling could not serve as a basis for the re-opening of cases decided in the past by assessors (or with their participation)."
[12]In paragraph 65 the Court referred to its own case law which essentially supported that approach. It went on:
"65 ..... Referring to the Constitutional Court's decision not to allow the re-opening of the cases decided in the past by assessors on the ground that it would undermine the principle of legal certainty, the Court does not consider this interpretation to have been arbitrary or manifestly unreasonable. Indeed, the Court in its jurisprudence has underlined the significance of the principle of legal certainty in the context of final judicial rulings [refer Brumarescu v Romania No 28342/95]"
[13]It goes on in paragraph 66:
"66 The Court observes that the domestic law provides for a possibility of re-opening of criminal proceedings when such a need results from a judgment of the Court ..... However, having regard to the foregoing, the Court reiterates its conclusion that in the instant case the re-opening of the applicants' case is not called for ..... "
[14]Miss Bhatt submits that Urban was concerned with a relatively small financial penalty and not with a sentence of imprisonment. She seeks to rely on a decision of the Court in Abu Qatada (decision of the European Court of Human Rights). She draws attention, first, to paragraph 61 of that decision which refers to the approach of Lord Phillips in the Supreme Court in Abu Qatada. The words used were if it was a "flagrant denial of justice" then there should be interference or the possibility of interfering with and setting aside the original decision. Hence, the reference in these cases to a need to establish a flagrant breach.[15]In paragraph 262 of the decision in Abu Qatada, the Court said:
"262 Finally, given the facts of the present case, the Court does not consider it necessary to determine whether a flagrant denial of justice only arises when the trial in question would have serious consequences for the applicant. It is common ground in the present case that the sentences which have already been passed on the applicant in absentia, and to which he would be exposed on any retrial, are substantial terms of imprisonment."
[16]It is to be noted that the Court does not say that the fact there had been a sentence of imprisonment would automatically show the breach should be regarded as a flagrant breach. What it is saying is that it does not need to decide whether anything less than a prison sentence could give rise to a flagrant breach. It is certainly not saying that there is any automatic relationship between imprisonment and flagrant breach.[17]Abu Qatada was based upon the contention that the evidence against Abu Qatada, were he to be returned to Jordan, would come largely from co-defendants who, it was said, had been tortured into making the necessary statements giving the necessary evidence against him. And that, namely the use of evidence obtained under torture in order to support a prosecution, was itself manifestly a flagrant breach of Article 6. The fact that imprisonment resulted was a factor to which regard was paid. It is the nature of the breach that is of importance, not the consequences that resulted from the breach, because there is no suggestion here - and I doubt whether there would be likely to be any suggestion in other cases, absent any evidence of wrongful interference by the powers that be in any decision which was made by or with the assistance of an assessor - and it is not said and cannot be said that the assessors who reached the relevant decisions were themselves in anyway tainted, as it were, other than by the fact that their appointments were not with the required security of tenure.[18]There is before me an expert report from a Polish advocate that simply confirms that as a result of the ruling of the Constitutional Court, coupled with the upholding of that ruling by the European Court of Human Rights, there will be no question of the appellant being able to re-open the decisions upon which the arrest warrant is based were he to be returned to Poland. But, in my view, that does not assist him because there can be no conceivable suggestion that, apart from the security of tenure issue, there was any prejudice to the appellant from the fact that it was assessors rather than judges with security of tenure who decided the case against him.[19]It seems to me that it is quite impossible to say that in a case such as this - and I suspect in virtually any case involving a decision made by assessors - it can be shown that there was a flagrant breach of Article 6 or a breach which means that the Constitutional Court's decision that finality required the upholding of the relevant decisions and no right to challenge them was incorrect. Of course, if that is right it would mean that in respect of many cases where convictions or sentences resulted prior to 2009 - assessors being likely to have been involved - there would be a bar to extradition. That is not, in my judgment, the position.[20]Accordingly this appeal fails.[21]This decision will affect the chances of success of other cases in which the same point is sought to be argued.[22](To counsel) Do you want the usual order?[23]MISS BHATT: Yes. Also because there are other cases on the same point and because there was some trouble in obtaining a transcript, I wonder would you order an expedited transcript?[24]MR JUSTICE COLLINS: Yes. I am not in until next Wednesday. I think it will be ready by Wednesday. I agree it is important. Do you know when the next one is fixed?[25]MISS BHATT: There is one on 30 October and the rest in December.

MR JUSTICE COLLINS: There was a suggestion by someone that they should be all dealt with together.

[27]MISS BHATT: Yes. That was my instructing solicitor's application. The case that was before you last time - Katchanowski - I think it was heard before that. A decision was made on the application.[28]MR JUSTICE COLLINS: You can ignore my judgment in that case because I was misled, or rather I was not directed to the right material. In fact, if I had been, as you can appreciate, it would have made no difference to the decision. This is a judgment. Can I ask you and your solicitors carefully to consider whether actually they should pursue the other cases because it might be regarded as a waste of the court's time? It might have a costs implication.[29]MISS BHATT: I am grateful.

Cited in 2 later judgments