Bulkowski v Regional Court of Elblag, Poland [2012] EWHC 381 (Admin)

Case No CO/6880/2011[2012] EWHC 381 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 14 February 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE TREACY
Between
KAMIL BULKOWSKIClaimantv
Between
REGIONAL COURT OF ELBLAG, POLANDDefendant
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 Martin Henley (instructed by Messrs Freemans Solicitors) appeared for ClaimantMs K Tyler (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE TREACY: This appellant is the subject of the European Arrest Warrant dated 22 February 2008. It is a conviction warrant. It alleges an offence involving elements of driving with excess alcohol or while drunk, poor driving and significant injury being caused to another person. Sentence was passed on 12 March 2003 by the court in Poland.[2]The arrest warrant itself, at part C, states that the length of the custodial sentence imposed on that occasion was one year's imprisonment and that the length of the custodial sentence to be served was also one year's imprisonment. It is to be noted that nothing is said about the sentence being suspended.[3]It is clear from the warrant that the offence was committed in September 2002. Reference to part F of the warrant records that the appellant was present during the hearing and the delivering of sentence and states:
"The convict failed to serve the punishment. By means of the judicial decision issued by the District Court in Braniewo on 7th December 2006, his seeking by means of a domestic search warrant was ordered."
This paragraph suggests that the sentence has not been served.[4]The appellant asserts that the sentence was suspended for a period of three years and acknowledges that he left Poland after about two and a half years of what he says was the operational period. This information does not appear on the face of the warrant. The appellant asserts that the warrant is therefore deficient and that he should be discharged.[5]Section 2 of the Extradition Act 2003 provides, where relevant, as follows:
"(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 - ... (b) the statement referred to in subsection (5) and the information referred to in subsection (6)."
Subsection (6)(e) provides that the information is:
"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."
[6]The Council Framework Decision of 13 June 2002 on the European Arrest Warrant provides the following at Article 8:
"Content and form of the European arrest warrant 1. ... (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."
That information at paragraphs 1(f) and (g) represents information which the European Arrest Warrant shall contain.[7]On 14 July 2001, District Judge Evans ordered extradition and rejected the appellant's arguments based on the alleged defect in the warrant which did not refer to the sentence being suspended. He also rejected an argument based on Article 8 and the hardship which it is said would be suffered by the appellant's partner and children in the event of extradition.[8]The appellant submits that this is not a valid European Arrest Warrant because it fails to state that a suspended sentence was imposed and so, it is argued, it fails to give adequate particulars of sentence under section 2(6)(e) of the 2003 Act. Counsel submits that the question of whether or not an European Arrest Warrant which fails to state that a sentence was originally suspended is a valid European Arrest Warrant within the meaning of section 2 has not been properly considered by this court.[9]Counsel acknowledges that there are decisions of this court -- Jeriorowski, Florescu and Kuchta -- but he submits that there has not been full or proper consideration of the issue as to whether there is a requirement to state that the sentence was originally suspended, and that observations in those cases suggesting that there is no need for a recital in the warrant of the fact that sentence was to be suspended are not to be viewed as authoritative.[10]It is further argued that section 2(6)(e) should be interpreted so as to require more than a simple statement of the time to be spent in custody. It is submitted that it is necessary for it to state that the sentence imposed was in fact suspended. It is argued that a person in the position of this appellant needs full and sufficient particulars in order to be in a position properly to raise potential bars to extradition, for example in relation to any passage of time argument potentially available under section 14.[11]Quite distinct from the points which arise on the validity of the warrant, there is also a ground of appeal stating that the appellant's circumstances are such that it would be contrary to his Article 8 rights to order his extradition.[12]The respondent does not accept those contentions. The argument is that the warrant is a valid warrant, that there is authority from this court which plainly shows that there is no requirement to state that the sentence was originally suspended, and the court is urged to take the view that subsection 2(6)(e) should not be interpreted in such a way as to require the warrant to state that a sentence is suspended, as that would be to introduce formalities not required by the Framework Decision. Moving on to Article 8, the respondent's contention is that the circumstances as disclosed simply are insufficient to render extradition disproportionate.[13]It is clear from Cando Armas v Belgium [2005] UKHL 67 that the contents of a warrant are crucial to the system under part 1 of the Extradition Act 2003. If a warrant does not conform to the requirements of section 2, it will not be a Part 1 warrant and Part 1 of the Act will not apply to it. That said, the purposes of the statute and the Framework Decision are to facilitate extradition rather than to obstruct the process with empty technicalities.[14]On the face of the warrant at Part C, the requirement to give particulars of sentence imposed by section 2(6)(e) is ostensibly met. There is only a failing of any sort if the evidence as to suspension given by the appellant is both accurate and admissible. I am urged, in the absence of any evidence from the judicial authority to contest the evidence given by the appellant, to accept the appellant's evidence as to the fact of suspension.[15]I do not consider that such extrinsic evidence is admissible. In Dabas v High Court of Justice Madrid [2007] UKHL 6 at paragraph 50, Lord Hope stated that a warrant which does not conform to the statement required "cannot be eked out by extraneous information".[16]In Echimov v Romania [2011] EWHC 864 (Admin) at paragraph 28, Davis J, as he then was, said that the converse must be true; that is, if a conviction European Arrest Warrant is valid for the purposes of section 2 of the 2003 Act, then it ordinarily cannot thereafter be invalidated by subsequent and extraneous information.[17]There are also observations to this effect in Asztaslos v Hungary [2010] EWHC 237 (Admin) per Aikens LJ at paragraph 30 and Thompson v Public Prosecutor of Boulogne Sur Mer [2008] EWHC 2787 (Admin) per Scott Baker LJ. The only exception would be if the wording of the warrant was equivocal, see Asztaslos, but that is not the case here.[18]I therefore conclude that the appellant's argument about the warrant fails on this first point. If I were to be in error in this finding, then there are a number of decisions of this court which show that failure to state that a sentence was suspended is not fatal to a warrant; see, for example, the decisions in Jeriorowski v Regional Court of Torun [2010] EWHC 362 (Admin) and Florescu v Lasi High Court of Law Romania [2010] EWHC 2781 (Admin). These decisions are criticised by counsel for the appellant as being weakened by the lack of full legal argument. It is asserted that the case of Kuchta v District Court of Czestochowa [2010] EWHC 432 (Admin) has been misinterpreted by the court in Jeriorowski and Florescu. It is further asserted that the observations at paragraph 8 of Kuchta do not support the proposition which is relied on by the respondent, namely that failure to state that a sentence is suspended on the face of the warrant is not fatal.[19]I have considered Kuchta and I consider that it is implicit in what is said there that it is simply sufficient to state the date upon which a sentence was imposed as opposed to condescending to further detail as to whether that sentence was suspended or not.[20]Those observations made by counsel for the appellant as to the view the court should take of that series of cases cannot apply in the same way, in my judgment, to Polkowski v District Court in Kalisz, Poland [2011] EWHC 3649 (Admin), where Nicol J had the benefit of legal representations before him and came to the same conclusion as those earlier decisions. Moreover, in Pilecki v Poland [2008] UKHL 7 at paragraphs 27 and 28, it was made clear that all the executing member state needs to know is the length of the sentence in order to determine whether or not it falls within the scope of the European Arrest Warrant; see sections 64 and 65 of the 2003 Act. Those considerations are echoed in Thompson at paragraph 26 and Trepac v Slovak Republic [2006] EWHC 3346 (Admin). This series of cases supports the rationale for the contention that a warrant does not need to state whether the sentence was suspended. It also supports the respondent's argument that section 2(6) should not be interpreted in a way which introduces formalities not required by the Framework Decision, as indeed does the case of Dabas at paragraphs 42 and 43.[21]In relation to the point made by the appellant that a person facing extradition requires sufficient particulars concerning suspension of sentence in order to see whether an argument based on passage of time is available to him, I conclude that the warrant must allow the appellant to understand what he has been convicted of and what he has been sentenced for. Absence of information relating to suspension of sentence does not prevent him knowing those matters, nor in my judgment can it realistically prevent him identifying bars to extradition which may be available to him.[22]I am urged to consider that the decisions of this court in Sandi v The Craiova Court, Romania [2009] EWHC 3079 (Admin) and Denis v Regional Court in Warsaw [2010] EWHC 3507 (Admin) point away from this conclusion. I do not see anything in the judgments in those cases which in fact has that effect.[23]So, for these additional reasons, I do not consider that the appellant's contentions, based on the form of the warrant, are well-founded. The District Judge's decision was that:
"The warrant does not make clear whether this was an immediately effective sentence or possibly one that was suspended. This is a typical situation. Very frequently, warrants do not identify when sentences are suspended. Contrary to the submissions made by the defence, there is no requirement to provide such information."
I do not consider that the District Judge was in error. The point therefore in relation to the validity of the warrant must fail.[24]This leaves the Article 8 point. The District Judge accepted that hardship would be caused to the appellant's partner and his children. There would be financial hardship. A medical report showed that the partner is not in good health and may require an operation requiring a night's stay in hospital. However, it is plain that the District Judge had the high threshold recognised in Norris in mind and concluded, rightly in my view, that the evidence in this case fell well short of that high standard).[25]Even taking account of where this case falls in the range of general criminality, and taking account of the passage of time which has elapsed, there is in my judgment nothing to indicate that this case comes near to the sort of threshold which Norris requires. It follows therefore that the District Judge's finding in relation to the Article 8 point cannot be one with which this court could disagree or come to the conclusion that the judge should have decided that particular question differently.[26]Accordingly, this appeal fails and it is dismissed.[27]Yes.[28]MR HENLEY: My Lord, there was left open from the last occasion the questions of costs on that. I mean, clearly it's a matter that, given that the appeal fails, my Lord may feel that there's no reason to take that any further.[29]I'm slightly perplexed because I know that the provisions of the Extradition Act on costs are obscure. I think it's section 60, off the top of my head.

MR JUSTICE TREACY: Well, has your client been publicly funded?

[31]MR HENLEY: Yes, he's publicly funded. So whether a costs order has anything other than a marginal effect --[32]MR JUSTICE TREACY: I can't see any benefit, frankly, in making any order in relation to costs. Do you want to urge me to the contrary?[33]MR HENLEY: I'm inclined to agree, my Lord. Therefore I will only ask for, obviously, my public funding costs, detailed assessment.[34]MR JUSTICE TREACY: Well, I will grant you that, certainly. Thank you. I will make no other order.[35]Thank you for your assistance, both of you.[36]MR HENLEY: Thank you.

Cited in 2 later judgments