Borowski v Regional Court In Wloclawek Poland [2012] EWHC 3568 (Admin)

Case No CO/3006/2012[2012] EWHC 3568 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 28 November 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
JAROSLAW BOROWSKIAppellantv
Between
REGIONAL COURT IN WLOCLAWEK POLANDRespondent
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 C Bramwell (instructed by Kaim Todner) appeared for AppellantMr N Hearn (instructed by CPS) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE MITTING: I refuse the application to adjourn. There are two warrants here. Of course, the conduct described in them is similar. Whether or not it overlaps is not a matter with which I am at present concerned but it seems to me that if it is possible to dispose of an appeal against one warrant then I should do so unless that causes irremediable prejudice to either the requesting state or the requested person, and I am satisfied that it does not. (Further submissions by counsel)[2]MR JUSTICE MITTING: An accusation warrant was issued against the appellant by a judge in the Regional Court in Wloclawek on 11 July 2011. It was certified by the Serious and Organised Crime Agency on 1 December 2011. The appellant was arrested the next day and brought before the Westminster Magistrates' Court. The final hearing of his extradition case took place on 16 February 2012. District Judge Arbuthnot issued her written judgment on 15 March 2012 and ordered the extradition of the appellant. He appealed in time to this court. The only issue in the notice of appeal was whether or not the second of three offences set out in the warrant was an extradition offence. It would have been recognised readily in England, and more readily in Northern Ireland, as a red diesel fraud and could have been charged in the United Kingdom either as conspiracy to defraud or as cheating the public revenue. It clearly was an extradition offence even though not in the Framework list.[3]Ms Bramwell, who appears for the appellant today, has abandoned that ground of appeal. She has sought leave to amend her notice of appeal, which I have granted, to contend that the warrant is nevertheless not valid because as a result of developments that have occurred since the hearing before District Judge Arbuthnot it is now clear that there is no intention to prosecute and, furthermore, that there is an abuse of process because the requesting authority seeks the extradition of the appellant in circumstances where another judicial authority in Poland, the Regional Court in Bielsko-Biala, has also requested the extradition of the appellant for offences that overlap those alleged in this warrant. The facts that give rise to that argument have arisen since the hearing before District Judge Arbuthnot. Accordingly, applying the well-known principle in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin) this is new evidence, it is a new argument and it is open to be raised on this appeal. It arises out of a second warrant issued by a judge in the District Court in Bielsko-Biala on 6 March 2012. That warrant was certified by the Serious and Organised Crime Agency on 31 April 2012, the appellant was arrested on it on 29 April 2012 and brought before the City of Westminster Magistrates' Court. A full hearing took place before District Judge Coleman, who handed down his decision on 19 November 2012, ordering the extradition of the appellant.[4]In broad terms, the appellant is wanted on both warrants for what would be identified in England as red diesel fraud; that is to say selling diesel that is fiscally favoured at a price and for a purpose where the beneficial fiscal regime does not apply: selling untaxed or lowly taxed diesel at a price as if it were fully taxed and for a purpose for which its use was not permitted. In Poland, that is said to be an offence not merely of fraud and perhaps of cheating but also participation in a criminal gang and money laundering. The stance of both Polish judicial authorities is that the conduct charged in the two warrants though similar is not in fact identical. In the first and second of the two charges alleged in both warrants it is contended by the requesting authorities that there is no overlap. It is conceded that in the third charges on both warrants there is an overlap. The appellant contends that the two charges are in fact identical so that the appellant's extradition is being sought on two warrants for the same offence.[5]Ms Bramwell makes her submissions on the basis of a decision of Keith J in Voros v The District Courts of Sopron, Gyor and Zalaegerszeg, Hungary [2012] EWHC 518 (Admin) and [2012] EWHC 1079 (Admin). In that case, Keith J was faced with warrants which it was accepted charged the same offence in relation to exactly the same conduct. His solution, faced with that problem, was to dismiss the appeal in respect of those charges which were not identical and allowed the appeal against one, but only one, of the parts of the warrants in respect of which the offences charged were identical. Accordingly, Keith J ordered the extradition of the appellant on the eight underlying charges which he actually faced and not the dozen or so contained in the four warrants. In that way he ensured that he was only extradited for the eight offences of which he actually stood charged.[6]That problem may or may not arise here. If the contention of the judicial authority is right then it will not arise in relation to the first and second charges on both warrants. It may or may not arise in relation to the third. That, however, is for the future. I have to determine whether or not Ms Bramwell's submission that the subsequent events demonstrate that there is no intention to prosecute the appellant on the charges on this European Arrest Warrant, or, alternatively, that it is an abuse of process to seek his extradition on both warrants.[7]Ms Bramwell's first submission, is, in effect, that the warrant must demonstrate an intention that the requesting judicial authority within the State from which the request is made must be the one who conducts the prosecution. Anything less will not do. She draws my attention to the response of the judge in the Wloclawek Court to requests from the CPS concerning the second warrant. The judge said this:
"1. It has been agreed between the Regional Prosecutor's Office in Wloclawek and the regional prosecutor's Office in Bielsko-Biala that the proceedings against [the appellant] will be combined. 2. After the proceedings are combined, the Regional Prosecutor's Office in Bielsko-Biala will have responsibility for the case. 3. In the case against [the appellant], one substantive decision will be made by the Regional Prosecutor's Office in Bielsko-Biala, their proceedings having a broader material scope. 4. [The appellant] is as no risk of being punished twice for the same offence. 5. We have been informed by the Regional Prosecutor's Office in Bielsko-Biala that, in the case that the indictment against [the appellant] is filed in accordance with territorial jurisdiction regulations, it will be handed up to the Regional Court in Katowice."
[8]That response demonstrates, in my judgment, no more than that the prosecuting authorities of the two courts will make a sensible combined decision that the lead will be taken by the Prosecutor in Bielsko-Biala and that in the event that an indictment is filed, it will be filed in the Regional Court in Katowice. These are all matters for the internal arrangements of the Polish criminal justice system and are of no concern to the courts of the United Kingdom. It is sufficient for the purposes of section 2(3)(b) of the Extradition Act 2003 that the warrant states that the extradition of the requested person is sought:
"for the purpose of being prosecuted for the offence"
. It is immaterial whether he will be prosecuted for that offence by the particular regional court which has issued the warrant, provided it is clear that he will be prosecuted for that offence. It is clear that the appellant will be prosecuted for the offences identified in this warrant albeit that he will be prosecuted by the prosecuting authority of another regional court. The material upon which Ms Bramwell relies to show that there is no intention to prosecute for the offences described in this warrant does not demonstrate her point. It does no more than indicate the sensible arrangements that will be made within the Polish State for the prosecution of the appellant.[9]Accordingly, although I have given permission to amend the grounds of appeal, the first ground, that there is no intention to prosecute, is not made out and I dismiss that ground of appeal.[10]As to the second ground, that it is an abuse of process to seek extradition on both warrants, I am satisfied that it is not. The appellant has identified the conduct which he contends amounts to an abuse of process but it simply is not an abuse of process for two prosecuting authorities in different courts faced with criminal conduct that spans the geographic jurisdiction of both courts and is temporally elongated, for two warrants to be issued in respect of that conduct. I agree with Keith J in Voros, who had to consider a similar submission, that it does not amount to an abuse of process. It may or may not prove to be the case when the appellant's appeal against the second extradition order is heard, if it is, that the third offence in that warrant is invalid because it replicates precisely the third offence in the first warrant. That is a matter for the court in due course. Further, that issue may be short circuited by a decision being taken by the Polish authority not to proceed on the third charge in the second warrant. If that course is taken then these proceedings may be brought to a more rapid conclusion than at the moment appears likely.[11]Satisfied as I am that neither of Ms Bramwell's grounds are made out, I dismiss the appeal against the extradition order made on this warrant.[12]MS BRAMWELL: My Lord, insofar as I need to mention it, Mr Borowski is publicly funded and I ask for the usual assessment, if I may.

MR JUSTICE MITTING: There will be a public funding assessment of the appellant's costs.

[14]MR HEARN: My Lord, can I mention two matters. The court may feel it appropriate in the circumstances of the second appeal for an expedited transcript to be ordered, as no doubt the judgment will of some assistance to both parties in relation to that appeal.[15]MR JUSTICE MITTING: I think you will find that transcripts do not take that long to produce, so it is probably not necessary to order an expedited transcript.[16]MR HEARN: Very well, my Lord. The second matter is that I believe the second appeal is currently listed for 13 February.

MR JUSTICE MITTING: I know it is listed in February, I do not know the precise date.

[18]MR HEARN: I know that I am unavailable on that day. It is a case that could be covered by someone else if necessary but given that Ms Bramwell and I have dealt with this matter it might assist to court if counsel remain the same. I do not know if there is any flexibility about that date at all.[19]MR JUSTICE MITTING: I suggest that you make representations through the usual channels. I am very reluctant to interfere in listing, which is a difficult enough task as it is without judicial interference.[20]MR HEARN: Very well, my Lord.

MR JUSTICE MITTING: Thank you both.