Pomiechowski v The District Court In Legnica, 59-220 Poland [2012] EWHC 3161 (Admin)

Case No CO/2104/2011[2012] EWHC 3161 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/11/2012
Before
Mr Justice Burnett
Between
Radomil PomiechowskiClaimantThe District Court in Legnica, 59-220 PolandDefendant
(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)
Mr Ben Watson (instructed by Kaim Todner) for ClaimantMiss Corine Bramwell (instructed by CPS) for DefendantHearing Hearing date: 24 October 2012
JudgmentThe Hon Mr Justice Burnett:Introduction

this is the action from the art.279 1pc--------

[1]This is an appeal against the order made on 2 March 2011 by the district judge sitting at the City of Westminster Magistrates’ Court whereby he ordered the extradition of the appellant to Poland. The appellant had been arrested pursuant to two European Arrest Warrants [“EAW”]. The first was issued on 11 May 2006 by the district Court of Legnica and the second on 23 December 2009 by the District Court for Wroclaw. The first concerns a number of convictions and accusations. The second concerns only an accusation. There is limited information before this court concerning what happened before the district judge. In a statement prepared in these proceedings the appellant states that he was taken to the City of Westminster Magistrates’ Court on 25 January 2011. His solicitor sought an adjournment to enable a “passage of time" argument to be run. At the hearing on 2 March 2011 the solicitor apparently suggested that further time was required to prepare the case and sought a further adjournment. That was refused. The hearing went ahead. The appellant did not consent to his extradition but no bars to extradition were raised.[2]The appellant sought to appeal to the High Court. The question arose whether his appeal was in time. That issue was resolved against the appellant in the Divisional Court: see Pomiechowski v. District Court of Legnica, Poland [2012] 1 WLR 391; but in his favour in the Supreme Court: [2012] 1 WLR 1604. The Supreme Court remitted the appeal to the High Court for determination.[3]The original grounds were drafted by the appellant himself and have been superseded with permission by amended grounds drafted by Mr Watson. They are:(i) The EAW issued on 11th of May 2006 is invalid because it fails to satisfy the requirements of section 2 of the Extradition Act 2003 [“the 2003 Act”]. This ground has two components. First, that the warrant fails to provide ‘particulars’ as required by that provision and is thus invalid. Secondly, that the warrant seeks the extradition of the appellant both in respect of convictions and an accusation, which it is suggested that the structure of the 2003 Act does not permit.(ii) The extradition of the appellant pursuant to either warrant is barred by the passage of time, within the meaning of the 2003 Act.

The Law

[4]Poland is a Category 1 territory for the purposes of the 2003 Act. Extradition to such territories is governed by Part 1 of the 2003 Act. Section 2 specifies the information which a document must contain for it to be an arrest warrant: “(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 has been convicted 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. The focus of Mr Watson’s submissions is upon section 2(6)(b) and whether the first EAW contains the necessary particulars of the convictions.[5]Part 1 of the 2003 Act was enacted to fulfil the obligations imposed upon the United Kingdom by ‘Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States’. Article 8 of that Decision specifies the content and form of an EAW in language slightly different from section 2:
“Content and form of the European arrest warrant 1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; (c) evidence of an enforceable judgement, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of Article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority; (c) evidence of an enforceable judgement, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of Article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. 2. ….”
The annex referred to contains a pro forma, which was used in this case. Box (b) of the pro forma makes provision for details to be provided of both arrest warrants and enforceable judgments.[6]It is common ground that a document cannot be considered to be an EAW unless it complies with section 2(2) of the 2003 Act. As Lord Hope of Craighead put it in Dabas v. High Court of Justice in Madrid, Spain [2007] 2 AC 31 at paragraph [50], “I want to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it.”[7]In Sandi v. The Craiova Court, Romania [2009] EWHC 3079 (Admin) the question was whether a conviction warrant should contain the same particulars required by section 2(4)(c) in respect of an accusation warrant (conduct, time, place of the offence etc). In other words, whether the phrase ‘particulars of conviction’ in section 2(6)(b) should be read as to require the same specificity as section 2(4)(c). In rejecting the submission on the basis that after a trial and conviction such matters are known to the person concerned, Hickinbottom J, with whom Moses LJ agreed, indicated that the particulars provided must include the court and date of conviction but went on to observe:
“33. The appropriate level of particularity to satisfy section 2(6)(b) will depend upon the circumstances of each case. In relation to how far a warrant has to go in relation to particularity, I echo Dyson LJ’s caution in Von der Pahlen (at [22]); it would be unwise to attempt a prescriptive answer to that question, nor do I seek to do so. 34. However, adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for – and to enable him to consider whether any bars to extradition might apply. In the light of that I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted – and some information about when and where the offences were committed, and the requested person’s participation in them, although not necessarily in the same level of detail as would be required in an accusation warrant.”
[8]In Denis v. The Regional Court in Warsaw [2010] EWHC 3507 (Admin) Wilkie J considered whether the reference to the ‘court and date of conviction’ in Sandi should be regarded as a gloss on the general words of the statute: particulars of conviction. He said this:
“15. On the face of it this looks like a very clear statement by the Divisional Court that in every case the details included in the particulars must include the court and the date of conviction. 16. The contrary view has been put forward on behalf of the judicial authority, and as support for that contrary position that it is not always necessary for the date of conviction to be particularised, some support is claimed from the decision of the administrative court, Treacy J, on 11 November 2010 in the case of Wosniak v. The Regional Court of Bialystok. That appeal concerned an asserted lack of sufficient particulars in relation to the appellant’s conviction. The warrant in that case concerned a particular offence, but also cumulatively two earlier offences. The warrant identified both the court and the date of the index offence. It also included certain information in relation to the two earlier offences, but in neither case did it give the date of the convictions, though it did give the date upon which those offences were said to have been committed. 17. …[T]he learned judge … said as follows: “9. Having regard … to the need to consider the wording of the 2003 Act purposively, in the context of the framework decision, I do not consider that the date of the conviction needs necessarily to be spelt out in order to satisfy the requirement that particulars of the conviction be included in the warrant. If there is sufficient other information contained in the warrant which enables the fact and the circumstances of the conviction to be ascertained, then the legislation will be satisfied. Moreover, the court in Sandi was not focussing on the issue as to what constituted adequate particulars of conviction in relation to whether a date needed to be satisfied. The court was considering what details, if any, of the underlying conduct needed to be set out. … I consider that it would be wrong to treat Sandi as laying down some inflexible rule that the date of conviction must always be specified. The question of particularity must always be considered in the light of the circumstances of the individual case. … 11. In my judgment, the reality is that the requirement to give particulars of conviction pursuant to section 2(6)(b) is satisfied by the totality of the information in the warrant. This appellant, reading the warrant, would know clearly what he had been accused of, what he been convicted of, what he was sentenced to, and when and by which court. …” 18. I agree with the approach identified by Treacy J. Neither the framework decision nor the Extradition Act specify that there must inevitably and invariably be a particular piece if information, such as the date of conviction or sentence, supporting the arrest warrant. The question is a matter to be looked at in the round and without unnecessary technicality, but it is necessary that the totality of the information must give the necessary particulars of conviction so as fully to inform the subject of the warrant sufficiently to enable him to know what he is going back to and what defences he might have, both here and abroad.”
[9]The question whether both convictions and accusations could be contained within the same EAW was considered by Lloyd Jones J in Ciesielski v. District Court in Kalisz, Poland [2011] EWHC 1503 (Admin). The argument then advanced was to the effect that the language of the 2003 Act draws a sharp distinction between conviction and accusation warrants. The use of the word ‘or’ in section 2(2) was said to lead to the conclusion that a single warrant could not cover both grounds. Lloyd Jones J accepted that the 2003 Act draws a distinction between conviction and accusation cases, but was ‘unable to accept that section 2 imposes a requirement that an extradition warrant be issued either in respect of an accusation or a conviction matter’. He was unable to accept that submission that it is not possible for one warrant to contain both. He concluded that the word ‘or’ makes clear that there are distinct requirements for conviction and accusation cases. He added this:
“20. I come to that conclusion on the basis of the statute, but I also draw attention to the fact that Article 8 of the Framework Decision, as Mr Henley accepts, does not distinguish in the manner provided for in section 2 of the Act between accusation and conviction cases. Moreover, the pro forma warrant which is annexed to the Framework Decision contains nothing which would support the view accusation and conviction offences may not be combined in the same warrant and Mr Henley accepts that they may be. 21. The purpose of the Framework Decision is of course to remove complexity and potential delay in extradition procedures between participating states. I can see nothing in the scheme which requires separate warrants to be issued in respect of accusation and conviction matters. 22. There can be no principled objection to both being included in the same warrant provided it is made clear which matters are accusation matters and which are conviction matters. In particular I accept the submission of Miss Nice that not only would such an approach be an unnecessary complication in what is intended to be a simplified system but also it is difficult to see what useful purpose in terms of protection of the requested person such a requirement would provide.”
[10]Mitting J came to the same conclusion in Zacharski v. Regional Court in Lubin, Poland [2011] EWHC 2386 (Admin). He certified a question for the Supreme Court:
“Can a European arrest warrant validly be issued for the purposes of section 2(2) of the Extradition Act 2003 which is both an accusation and a conviction warrant?”
He then refused permission to appeal. Thereafter the Supreme Court itself refused permission to appeal. The issue arose again in Veiss v. Le Paelite Prosecutor General Office, Republic of Latvia [2012] EWHC 2460 (Admin). The point was not pressed in that appeal, in the light of the refusal of the Supreme Court to entertain an appeal, but Bean J indicated that he would have followed the decisions already cited. The Warrant[11]The first warrant was issued on 11 May 2006. Box (a) identified the appellant. No issue is taken with that. In order to consider the primary submission which Mr Watson advances, namely that the particulars of conviction are inadequate, it is necessary to recite the substance of the warrant. It is at times repetitive because in following the pro forma annexed to the Framework Decision there are multiple opportunities to provide information. It also suffers the inevitable disadvantage of having been translated into English by someone who has a different mother tongue. “(b) Decision on which the warrant is based: the resolution of the District Court in Legnica:- III Penal Department dated on the 11th of May 2006 year (11.05.2006 year)--- 1. Arrest warrant or judicial decision having the same effect………………………….. Type: -. the judgment of Regional Court in Legnica dated on the 22nd of May 2000 (22.05.2000) -. the court decision issued by the Regional Court in Legnica on the 11th October 2002 year , to search by the “wanted” notice------- -. the judgment of Regional Court in Legnica dated on 6th of June 2000 year (06.06.2000) -. the court decision issued by the Regional Court on the 11th of October 2002 year to start the search by the “wanted” notice------- -. the judgment of Regional Court in Legnica dated on the 4th January 2001 year----- -. the judgment of Regional Court in Legnica dated on 21st of November 2000 year.------ -. the court decision issued by the Regional Court in Legnica on the 10th of October 2002 year to start the search by the “wanted” notice.------ -. the court decision issued by the Regional Court in Legnica on the 14th of November 2001 year to apply the prevent measure as detention waiting trial ----[2]Enforceable judgement: Reference: IIK318/00, IIK 554/00, IIK 1129/00, IIK264/02, IIK 1161/00------ (c) Indications on the length of sentence: 1. Maximum length of the penalty of deprivation of liberty or detention order which may be imposed for the offence(s): In case IIK 264/02 – 10 years 2. Length of the custodial sentence of detention order imposed: in case IIK 318/00 – one year of imprisonment in case IIK 554/00 – 1 year of imprisonment in case IIK 1129/00 – 1 year of imprisonment in case IIK 1161/00 – 2 years of imprisonment in case IIK 264/02 – 3 months since the day of arrest The part of the sentence remaining to be served: in case IIK 318/00 – 11 months and 27 days of imprisonment21. in case IIK 554/00 – 1 year of imprisonment22. in case IIK 1129/00 – 1 year and five months and 28 days of imprisonment23. in case IIK 1161/00 – 1 year, 8 months and 8 days of imprisonment24. - The person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, Radomil Pomiechowski was informed about the term of the hearing, but did not appear in the court, because he absconded abroad, what led to issue the decision in absentia -------- (e) Offences: This warrant relates to in total: the number of offences….. 7…. Description of circumstance in which the offences(s) was (were) committed, including the time, place and degree of participation in the offences(s) by the requested person; Nature and legal classification of the offence(s) and the applicable statutory provision /code:25. In case IIK 318/00

This is the action from art. 13 1pc by the reason of art 279 1pc

[1]On the 18th of July 1999 year (18.07.1999) in Legnica, acting together and in the consultation with Irensusz Wladyslaw Stasxewski committed the burglary into the truck car make “Mercedes” with registration number LCC 8059, in the way that , after breaking the front window glass the use of not identified tool they entered inside and took, with the aim of appropriating the car radio make “Mainton”, two loud speakers, the warning triangle, the bag with two sets of the car wrenches with total value not lower that 150zl (PLN), by what he acted to the detriment of Henryk Wolak, this is the action from the art.279 1pc-------- In case IIK 554/00 On the 12th March 2000 year (12.03.2000) in Legnica, acting together and in the consultation with the juvenile, to whom the materials were excluded to the separate prosecution, tried to commit the theft of the passenger car make Fiat 126p registration number LCC 7963 in the way that, after having opened, the driver’s or passenger’s lock with the use of not identified tool he got into the car, which he trying to start with not identified tool, but he did not achieve the aim, because he was stopped by the car owner, by what he acted to the detriment of Plotr Chrobot, This is the action from art. 13 1pc by the reason of art 279 1pc In case IIK 1129/00 On the 28th of September 1999 year (28.09.1999) in Legnica, acting together and in the consultation with Dawid Skuratowicz and Sebartian Wielgosz they committed the burglary to Bar Malinka in the way that, after breaking the bar window they got inside from where, after opening the till, with the aim of appropriating they took the amount of 10.70zl (PLN), and next two bottles of beer and the bowl with the noodles/ in polish – pierogil, by what they caused the damage of total value 90zl (PLN) and acted to the detriment of Darinsz Lazurek, This is the action from art. 279 1pc In case IIK 1161/00 On the 31st of July 2000 year (31.07 2000) in Legnica, acting together and in the consultation with Daniel Mirga-Ondyez and the another person to whom the materials were excluded to the separate prosecution, committed the banditry on Rafar Jablonski in the way that, threatening of using violence, and than after hitting him with the elbow in the area of the stomach they took him, with the aim of appropriating money in amount 60 zl (PLN) to the detriment of the above mentioned . This is the action from art 280 1pc In case IIK 264/02 30. This is the action from art 279 1pc 31. II. At night from the 30th to the 31st of August 1999 year in Milkowice acting together and in the consultation with Dawid Skuratowicz , Krzyaztuf Piskadlo Lukasz Wielgosz, Sebastian Wielgosz, they committed the burglary to the grocery shop, where with the use of not identified tool they broke the padlock on the door, got inside, from where they took with the aim of appropriating the tobacco, alcohol and sweet goods, for total value 4.970.39 zl (PLN) to the detriment of Gminna Spoldzielnia Chipska/ Commune Farmer’s Co-operative/ Milkowice. 32. This is the action from art 279pc 33. III. At night from the 6th to the 7th of September 1999 year, acting together and in the consultation with Dawid Skuratowicz, Krzysztof Piskadlo, Lukasz Wielgosz, Sebastain Wielgosz, they tried to commit the burglary to the grocery shop, where with the use of not identified tool they broke the shop window, but they did not achieve the aim, because there was the grating by what they acted to the detriment of Witold and Anna Rosowicz 34. This is the action from art. 13 1pc by the reason of 279 1pc 35. [The particulars of each of these offences are then repeated verbatim in the next part of the EAW.] (f). a.Other circumstances relevant to the case (optional information) 37. (NB. This could cover remarks on extraterritoriality interruption of periods of time limitation and other consequences of the offence) 38. Art.101 1pc (Penal Code) determines that the punishability of the crime terminates since the time of committing the crime passes: 1). 30 years - if the action is determined as murder crime 2). 20 years – if the action is determined as another crime. 3). 15 years – if the action is determined as the misdemeanour threatened with the detention exceeding 5 year period 4). 10 years – if the action is determined as the misdemeanour threatened with the detention exceeding 3 year period. 5). 5 years in case of other misdemeanours.44. The prescription of the punishability in case IIK 264/02 will terminate on the 31st of August 2024--------45. Art.103 1 item 2pc (Penal Code) determines that the penalty cannot be carried out, if 15 years have passed since the validation of the convicting judgment in case of the imprisonment conviction not exceeding 5 years.46. The prescription of the punishment will terminate:47. in case IIK 318/00 – on 30.05.2015 year /on the 30th of May 2015 year/48. in case IIK 554/00 – on 14.06.2015 year /on the 14th of June 2015 year/49. in case IIK 1129/00 – on 12.01.2016 year /on the 12th January 2016 year/50. in case IIK 1161/00 – on 20.02.2016 year / on the 20th of February 2016/”[12]Mr Watson submits that whilst the warrant gives the place and dates of a number of court judgments and separately the case reference numbers and then details of the conduct alleged, the various sets of information are not linked up. In short, he submits that the particulars of conviction nowhere identify a date, court and offence in respect of each of the convictions contained within the warrant. He further submits that the status of the offences covered by IIK 264/02 is ‘unfathomable’. It is unclear whether it is an accusation or conviction case and, furthermore it lacks a description of classification within Polish law. Miss Bramwell submits that when read as a whole the warrant is readily to be understood as covering one accusation case (IIK 264/02) which alleges three offences together with four convictions, of which particulars are provided and in respect of which the outstanding time to be served is explained.[13]Whilst further clarity would have been achieved had the case numbers been attached to the judgments and decisions identified in box (b), I am satisfied that the EAW provides proper particulars of four convictions and the necessary detail required in respect of the accusation case, which is plainly what IIK 264/02 is.[14]Box (e) says that the warrant is concerned with seven offences. The detail set out in respect of each of the cases thereafter particularised shows that IIK 264/02 covers three offences, whilst the others relate only to one offence each. Box (c) gives the maximum sentence for the offences covered by IIK 264/02 to be 10 years and that a period of detention, namely three months from the date of arrest, was authorised in respect of those offences. That detention was authorised from the date of arrest indicates that this relates to an accusation, as does the reference to the maximum sentence available. That is further made clear by the content of box (c) which refers to sentences imposed in respect of the other four case numbers, but not IIK 264/02. Further confirmation both positive and negative, if needed, is provided by the information contained in Box (f). ‘Punishability’ for the offences encompassed in IIK 264/02 will ‘terminate’ after 15 years, because of the nature of the offences alleged. This is a clear reference to a limitation period applicable to the prosecution. More serious offences would attract a longer limitation period, less serious offences a shorter one. The detail relating to the other four cases is different. In respect of each it is stated that a penalty has been imposed but that, because the sentence of imprisonment was less than five years, there is a 15 year limit from the date of validation of the ‘conviction judgment’ in which the sentence can be carried out. The table which follows provides the dates on which that 15 year period expires in respect of each conviction and thus implicitly the dates on which the conviction judgments were validated, to use the language of the document.[15]It is a feature of many European criminal jurisdictions that a conviction and sentence does not have immediate effect. That is true in Poland where, as the material before the court in this case demonstrates, the judgment and conviction does not become final, and thus enforceable, until the period for lodging an appeal has expired or, if there is an appeal by the requested person, the prosecution or a co-defendant, until its final determination.[16]Information is also given relating to the accusation case concerning the provision of Polish law said to have been contravened.[17]The reference at the beginning of Box (b) to a decision of the District Court in Legnica on 11 May 2006 clearly relates to the EAW itself. The other references to decisions to ‘search by the “wanted” notice’ are equally clearly decisions to issue the equivalent of warrants for the arrest of the appellant in connection with the offences for which he had been convicted. Such information must be provided to comply with the terms of the Framework Decision. Mr Watson sought to attach some mystery to these references to raise the possibility that they might relate to offences not further particularised. I do not regard that as a realistic suggestion given the clear terms in which the warrant states that it relates to seven offences and gives full details of them, one each in respect of cases IIK 318/00, IIK554/00, III1129/00 and IIK 1161/00; three is respect of IIK 264/02.[18]In my judgment section 2 of the 2003 Act is fully satisfied in this case both as regards the conviction and accusation parts of the EAW. Read as a whole, the EAW provides particulars of the four convictions to which it relates, giving the appellant all the necessary information to enable him to know precisely what it is he faces on return, and to formulate any arguments here to resist extradition. The accusation part of the EAW is similarly clear and complies fully with the statutory requirements.

Convictions and Accusations in the same EAW

[19]Mr Watson recognises that in order to make good his argument that a single EAW cannot, as a matter of law, contain both an accusation and a conviction request he must show that the decisions of Lloyd Jones J and Mitting J, to which I have referred, were ‘clearly wrong’: see R v. Greater Manchester Coroner ex parte Tal [1985] QB 67.[20]Mr Watson submits that the structure of Part 1 of the Act points strongly to the conclusion that mixed warrants of this kind are unlawful. He relies upon the consistent language of section 2 and its references to ‘or’ as a clear indication to that effect. In addition he identifies the dual track later identified in section 11 of Part 1 of the 2003 Act as pointing to the same conclusion. Section 11(4) directs the district judge at the extradition hearing to proceed under section 20 (in the event that he concludes that there is no bar to extradition) in a conviction case and thereafter under section 21 which is concerned with Convention rights. Section 20 is concerned with a series of questions which ask whether and in what circumstances a requested person was convicted. Section 11(5) directs the district judge to proceed under section 21, that is to consider immediately the Convention rights questions, in an accusation case. The significance of this, submits Mr Watson, is that under section 20(5) (i.e. in a conviction case) the district judge is required to discharge the requested person in the event that a series of questions in determined in his favour. The Extradition Act 2003 (Multiple Offences) Order 2003 (SI 2003/3150) [“the 2003 Order”] makes various amendments to Part 1 of the 2003 Act, under powers conferred by the 2003 Act itself. Paragraph 4 of the schedule to the 2003 Order has the effect of enabling the discharge of the requested person in respect of individual offences of which he has been convicted under section 20 but for the extradition hearing to continue in respect of others. Thus the extradition process may proceed in respect one or more convictions even if others fall by the way. However, Mr Watson submits that the language of the Act (as amended by the 2003 Order) would not enable the accusation aspect of the warrant to survive at this stage if all the convictions failed to surmount the hurdles erected by section 20. Miss Bramwell does not accept that possible consequence of the statutory regime, but submits that, in any event, it does not lead to the conclusion that mixed warrants are unlawful.

in case IIK 318/00 – 11 months and 27 days of imprisonment

[21]Mr Watson further submits that Part 2 of the Act, which is concerned with Category 2 territories, draws a sharper distinction between conviction and accusation cases: see section 78 and 79 of the 2003 Act. There is a consistency between the approaches in both Parts, which suggests that conviction and accusation cases can never be mixed.[22]Finally, Mr Watson submits that the Framework Decision does not itself support the interpretation favoured by Lloyd Jones J and Mitting J. In Ciesielski it was accepted by counsel for the appellant that the Framework Decision said nothing to suggest that conviction and accusation cases may not be combined in the same EAW. That was a concession made in the light of the language of the pro forma warrant: see paragraph [20] of the judgment quoted at [8] above. Mr Watson does not make the same concession because, as he submits, there is nowhere any explicit recognition in the Framework Decision that the two may be combined. Article 1.1 defines an EAW as:
“… 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.”
He submits that it could have been made clear that an EAW could contain both conviction and accusation matters, but the definition does not do so. He points to Articles 5(1) and (3), 16(1), 18 and 25(1) as making different provision for conviction and accusation cases. He recognises that Article 8 (set out in [5] above) does not suggest that the two types of case cannot be combined in the same warrant. He also recognises that the pro forma is crafted in a way which enables both types to be contained within the same EAW. However, he draws attention to the covering rubric which is also couched in the alternative:
“This warrant has been issued by a competent judicial authority. I request that the person mentioned below is arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial or detention order.”
[23]I am prepared to accept, without deciding, that the statutory scheme has the consequences identified by Mr Watson: namely, that a mixed warrant which falls at the section 20 hurdles so far as the conviction is concerned, but which is perfectly good so far as the accusation is concerned, would not prevent the discharge of the requested person pursuant to section 20(5). I am also prepared to accept, without deciding, that the scheme of Part 2 does not allow for mixed cases. But the question remains whether Part 1 of the Act has the effect of making a mixed warrant unlawful. If the statute has created a scheme which anomalously might lead to the discharge of a requested person in limited circumstances (even when there is nothing wrong with the accusation part of the EAW) that provides no basis, in my judgment, for extending the anomaly to all mixed warrant cases. It is common ground that the interpretation of Part I must, so far as possible, give effect to the intentions of the Framework Decision. It is for that reason that Mr Watson has developed his submissions by reference to it. It is no doubt correct that the Framework Decision could have made clearer whether both conviction and accusation matters can be included within the same EAW. But as both Lloyd Jones J and Mitting J recognised, one of the main purposes of the Framework Decision was to put in place streamlined, quick and relatively simple procedures for the surrender between Member States of fugitives and those accused of serious crime. The question arises: what would be the purpose in keeping the two separate if they might conveniently be dealt with in the same EAW? None has been identified. The appellant’s argument is one of construction of the Framework Decision and Statute.[24]Like Lloyd Jones J, I do not consider that the statute dictates that an EAW may not contain both accusation and conviction matters. The use of the word ‘or’ suggests no more than that the requirements in respect of accusations and convictions are different. The Framework Decision would have made clear, were it the intention, that the two must be kept separate; yet it does not. On the contrary, read as a whole the Framework Decision suggests that the two may be contained in the same EAW. In particular, the pro forma EAW in the annex is crafted in a way which readily accommodates both at the same time.

Nature and legal classification of the offence(s) and the applicable statutory provision /code:

[25]The appellant has not persuaded me that Lloyd Jones J and Mitting J were ‘clearly wrong’. On the contrary, for the reasons given, I come to the same conclusion as they did.

Delay

[26]The factual material available in considering the question of delay is limited. The appellant’s statement made in these proceedings has not been tested in cross-examination because the point was not pursued below. In it he says that he came to the United Kingdom in 2000 at a time when the Polish proceedings were finished. He says that he was sentenced to two years’ imprisonment suspended for five years and that nobody told him he could not leave Poland. Indeed, the appellant suggests that he asked a probation officer whether he could leave Poland although, significantly, the appellant does not suggest that he was told he could. He then sets out a little of his time in the United Kingdom. In 2005 his father and brother came here. In 2006 his father was killed by his brother. The appellant’s relationship with his partner broke down, he started drinking heavily and was convicted of burglary. He was sentenced, he says, to nine months’ imprisonment and then successfully resisted efforts to remove him from the United Kingdom. He says that he was arrested again in 2007 and believes that his details were provided to the Polish authorities because he heard that they had visited his address in Poland and told those there that he had been arrested in Scotland. In May 2010 the appellant was arrested in connection with further offending in the United Kingdom. It was then that he learned of the EAW. He was convicted and sentenced in connection with that offending. He was released from prison on 24 January 2011 since which time he has been in custody awaiting extradition.[27]Information provided by the Polish authorities in February 2011 gives information about each of the trials. The appellant was present at his trial on 22 May 2000 in respect of IIK 318/00. He did not appeal. The appellant was present at his trial on 6 June 2000 in respect of IIK 554/00. He did not appeal. The appellant was present throughout his trial in respect of IIK 1129/00 and was there when judgment was pronounced on 4 January 2001. He did not appeal, although a co-defendant unsuccessfully did so. The appellant was present throughout the trial in respect of IIK 1161/00 and at court on 21 November 2000 when judgment was pronounced. He did not appeal, but others did. The appellant did not attend the appeal hearing despite having been served with a notice for which he signed. He was by then at large.[28]The first warrant was issued on 11 May 2006. It concerned the convictions just discussed and the accusation relating to the three offences alleged to have been committed in September 1999. The second EAW relates to an alleged offence in January 2000. The EAW itself shows that the prosecution was not set in motion until 30 June 2005 but the appellant did not appear in response. That is no surprise since he was by then, on any view, in the United Kingdom. A warrant for his arrest was issued in Poland but the EAW did not follow until 23 December 2009.[29]The principles governing ‘delay’ as a bar to extradition in relation to Part 1 territories are well established. Section 11(1)(c) and 14 of the 2003 Act provide that ‘passage of time’ is a bar to extradition “ …if (and only if) it appears that it would be unjust and oppressive to extradite him by reason of the passage of time since he is alleged to have –(a) committed the extradition offence (where he is accused of its commission), or(b) became unlawfully at large (where he is alleged to have been convicted of it).” The meaning of ‘unjust and oppressive’ was authoritatively determined by the House of Lords in Gomes v. Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038; [2009] UKHL 21 drawing on and developing the reasoning in Kakis v. Government of the Republic of Cyprus [1978] 1 WLR 779. In short, ‘unjust’ is directed primarily to the risk of prejudice to the accused and the conduct of the trial itself. 'Oppressive' is directed towards hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration. There is room for some overlap. Between them they would cover all cases where to return the requested person would not be fair. Category 1 countries are all members of the European Union and parties to the European Convention on Human Rights. It can therefore ordinarily be assumed that the requesting state will ensure a fair trial. Where a person has fled from the jurisdiction of the requesting state he cannot rely upon delay which follows, even if the requesting state has been slow to start extradition proceedings. Oppression is a concept which imports a good deal more than hardship, which is a commonplace consequence of extradition.[30]The information provided by the Polish authorities in February 2011, which there is no reason to doubt, leads to the overwhelming inference that the appellant left Poland in early 2001 (rather than in 2000) and was a fugitive from the Polish judicial process. If that is right, then on the authority of Gomes he cannot rely upon the delay since then, at least as regards the four convictions. In respect of the accusations contained in the first warrant, whilst there was activity in the Polish courts in late 2001, there was delay until May 2006 before they were the subject of the EAW. Paragraph 3 of the schedule to the 2003 Order enables the passage of time bar to operate in respect of some, but not all, of the offences specified in the EAW. It would therefore be possible to come to a different conclusion on the question of delay in respect of the convictions and the accusations contained in the first EAW. Unfortunately, the papers before the court do not contain the usual details of when the EAW was certified by the Serious Organised Crime Office. There is no information about when the EAW was sent to the United Kingdom authorities or why it was not executed until 2010, when the appellant was arrested on domestic matters. There was a delay of about five years in connection with the alleged offence on which the second EAW is based before proceedings were commenced in Poland and then a further four years’ delay before the EAW was issued.[31]I am satisfied that the appellant should be treated as a fugitive for the purposes of the consideration of passage of time and that he cannot pray in aid any delay since he left Poland in connection with the conviction offences. However, should I be wrong in that I nonetheless consider whether it is ‘oppressive’ that he be returned to serve the remainder of his sentences for those offences at the same time as I consider whether it is oppressive to extradite him in respect of the accusation matters contained in both EAWs.[32]There is no question here that the appellant could not receive a fair trial in Poland, still less that any difficulties that may emerge in the trial process cannot be properly dealt with by the Polish judicial authorities. The argument about oppression boils down to two factors. First, a decade passed before the appellant’s arrest in 2010 during which time he was unaware of the accusation matters and believed (albeit on a flimsy basis) that the convictions were behind him. In the meantime he has made a life in the United Kingdom which took a turn for the worse when his father was killed and the appellant descended into drink and crime. The simple passage of time in this case does not, in my judgment, begin to demonstrate ‘oppression’ for the purposes of section 14 of the 2003 Act. Sympathetic though anyone would be to the loss of the appellant’s father and the particular circumstances of his death, I am unable to conclude that the statutory bar of passage of time is established in his case. It will be hard for the appellant to return to Poland. As Lord Brown of Eaton-under Heywood said at paragraph [31] in Gomes, “[T]he test of oppression will not easily be satisfied; hardship, a comparatively commonplace consequence of an order for extradition, is not enough.” There is nothing about the circumstances which moves the case into the category of oppression.

Conclusion

[33]None of the grounds advanced by the appellant succeeds. In those circumstances the appeal in relation to both EAWs is dismissed.

Cited in 1 later judgment