Zmijewski, R (on the application of) v Crown Prosecution Service [2013] EWHC 368 (Admin)

Case No CO/11856/2012[2013] EWHC 368 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 31 January 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF ZMIJEWSKIAppellantv
Between
WESTMINSTER MAGISTRATES' COURTRespondentCROWN PROSECUTION SERVICEInterested Party
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)
Mr M Hawkes (instructed by BSB Solicitors) appeared for Appellant for The Respondent did not appear and was not representedMr A Payter (instructed by Crown Prosecution Service) appeared for Defendant
J U D G M E N T

JUDGMENT IN APPLICATION FOR PERMISSION FOR JUDICIAL REVIEW

[1]MR JUSTICE MITTING: This is an application for permission to apply for judicial review to challenge District Judge Evans's refusal to grant an adjournment to permit further evidence to be put in and/or to refuse to allow the appellant to give oral evidence in an extradition hearing held on 31 October 2012.[2]I need to say a little about the background before turning to the grounds of challenge. The claimant's extradition was sought by the Polish judicial authorities on two accusation European Arrest Warrants. The first was issued by a judge of the Regional Court in Warsaw on 2 December 2010 and certified by the Serious and Organised Crime Agency on 10 January 2011. The second was issued by a judge of the Circuit Court in Lublin on 12 April 2007 and certified by the Serious and Organised Crime Agency on 1 June 2011. The appellant was arrested on 3 May 2012 and brought before Westminster Magistrates' Court on 4 May. Extradition proceedings are supposed to be dealt with within a strict and rapid timetable. This case was not. On 4 May, at the initial hearing, the extradition hearing was fixed, in accordance with section 8 of the 2003 Act, for 24 May 2012, 21 days after the arrest of the appellant. Directions were given that a skeleton argument and a proof of evidence be served by 21 May 2012. The appellant was remanded in custody. Legal aid was granted to permit him to be represented on 9 May 2012.[3]On 11 May 2012, the extradition hearing was opened. The court reiterated the directions to serve the skeleton argument and proof of evidence by 21 May. On 24 May, the date originally fixed for the substantive extradition hearing, the requested party was not ready for the hearing, and so a new hearing was fixed for 20 June 2012, with an hour and a half set aside. On 20 June 2012, the requested party was still not ready for the hearing and, accordingly, a new hearing was fixed for 2 July 2012. On 28 June 2012, the requested party applied, unsuccessfully, to break the fixture for 2 July. On 2 July, the requested party was still not ready. The difficulties put before the court were that he had made an asylum claim and believed that he had been granted asylum but was having difficulty in obtaining confirmation of that fact from the Secretary of State for the Home Department or the UK Border Agency. The case was again adjourned.[4]On 20 July, the case was put over for review to 31 August 2012. It then came before Deputy Senior District Judge Wickham, who made a comprehensive order. I have three versions of the order, all are consistent with each other and they are set out in a succinct summary in the written judgment of District Judge Evans, handed down after the hearing, on 31 October. She ordered that a statement of issues be filed by 28 September, that the asylum status of the claimant be confirmed on the same date, and that a proof of evidence from him was to be filed by 5 October 2012. On the basis of those orders, the hearing was adjourned for an hour and a half hearing on 31 October 2012. On 31 October, the claimant's asylum status had not been confirmed. The claimant's solicitor has produced a witness statement in which he exhibits the requests made to the UKBA to give details about the claimant's asylum status, to which he says he received no more than formal responses. He has not exhibited the responses but I accept what he says. The latest letter from the UKBA says that no further response is to be expected within the usual 40 days period for providing responses to queries about asylum claims.[5]The District Judge, having recited the history of the proceedings and briefly summarised the two European Arrest Warrants, stated the following:
"9. As can be seen from the above on three occasions the court has given directions that there should be served on the court and CPS a statement of issues or skeleton argument and a signed proof of evidence. Those directions have been ignored and even today there is nothing in writing from those who represent this requested person. Mr Hawkes tells me that his instructing solicitors have been trying, no doubt assiduously, to obtain information from the UKBA and have been unable to obtain any response. Quite recently a new application and a new cheque have been sent to the UKBA and it is hoped that there may be a response in the near future. 10. I have decided that enough is enough. It doesn't take someone 6 months to establish whether or not they have asylum. If they haven't established that within 6 months, then they can't rely upon it. I cannot disguise my scepticism that this RP [requested party] ever obtained asylum. As I understand the position if asylum status is granted the successful applicant is sent a formal letter which they are told must be treasured and kept in a safe place because replacement copies will not be supplied. This RP says he has lost his letter and he cannot now remember the name of the solicitors who helped him. Furthermore the fact that in 2007 the RP was in Poland allegedly driving whilst disqualified and with excess alcohol in Poland is not consistent with a man who has a well found fear of persecution etc., in Poland. 11. Having refused to adjourn this hearing Mr Hawkes then told me that the RP wished to put evidence before the court and make submissions under section 14 of the Act (passage of time) and to argue that his extradition would not be compatible with his Convention rights in particular under Article 8 ECHR. 12. I did not permit the RP to give evidence or place any evidence before the court and I indicated I would not entertain any submissions on any of these points. 13. This court has got to be in a position to give proper directions which need to be followed if this court is to achieve proper case management of extradition proceedings. Those representing RPs need to be aware that the Criminal Procedure Rules apply. If 'passage of time' is raised as an issue that will almost inevitably involve a request for further information from the JA [judicial authority]. The RP needs to assert when he left the country, what the circumstances were, whether he knew of proceedings, were there any restrictions on his movement etc. Then for the CPS to consider whatever is said; thereafter make a determination whether it does, in fact, require instructions from the requesting state and if it does, to obtain it. For this RP to want to go in the witness box and give an account which cannot be effectively cross-examined, that may require an adjournment is just not acceptable. Repeated requests for 'skeleton and proof' over 6 months have just been ignored. I am not prepared for the court to be misused any further. The court does not know how these points might have been argued, but they could and should have been put into writing and served on the court and CPS as directed and, in any event, before the hearing. 14. If the court had agreed to await the information (ie if I had granted the adjournment) and then found he doesn't have asylum, it would have been an abuse of the process of this court, as further delay would inevitably have been occasioned, whilst the CPS were given time to make the necessary enquiries."
[6]Since that hearing, and for the purposes of this claim, the claimant has put in a detailed witness statement dated 22 January 2013. In it, he has given a detailed account of his whereabouts since 1996 and of the circumstances in which he came to be in Poland when the events occurred which gave rise to the two European Arrest Warrants. He says that he believed he applied for asylum in 1996 when his whole family applied and that indefinite leave to remain was granted to them. In an addendum proof, undated but supplementary to that and served under cover of a letter dated 28 January 2013, he asserts that he believes that he was granted asylum on the same grounds as those of his family members. He then goes on to give a detailed account of events in Poland in 2001:
"At the time of the offence in EAW 1, I was living with my partner, [whom he names]. I was having an affair with the woman named in the warrant, [whom he also names]. She was aware that I was living with someone else, but [his partner] didn't know about the affair."
He then goes on to explain that the woman with whom he was having an affair had asked to borrow money "in order to do some home renovations". On the day of the alleged offence, 29 October 2001, she came to his flat with her daughter and they had lunch together. He then goes on to describe what he says happened in the flat, which included police officers bursting into it and assaulting him. He then said that he spent 6 months in a prison hospital and a further 2 months on remand. Because, he says, the complainant did not attend court, "I was released on 13 May 2002 without any bail conditions." He goes on to say that "at all times the police had my registered address in Poland [which he gives]. This property is owned to this day by my parents. I have lived there since 1990 and the police were fully aware of it." He then goes on to say that in 2003 he moved to Germany but continued to travel back periodically to Poland using his Polish passport. On one such visit he was stopped by police while driving, thus giving rise to the charge set out in the second European Arrest Warrant.[7]That statement makes it clear beyond argument that any claim that he might have made to asylum in the United Kingdom and any asylum status that he may have been granted in the United Kingdom has long since ceased to have effect. Article 1C of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as supplemented by a later protocol, provides:
"This Convention shall cease to apply to any person falling under the terms of section A if: (1) He has voluntarily re-availed himself of the protection of the country of his nationality."
On the facts sets out in his statement he had clearly done so. He was plainly living as a settled resident of Poland at the time of the 2001 incident and remained living in Poland after his release from prison hospital or prison on 13 May 2002. He continued to use his Polish passport to come and go from Germany to Poland. On no view was he entitled to asylum in the United Kingdom and if he had been granted asylum by the united Kingdom, then in accordance with Article 1C of the Convention, it ceased to apply to him.[8]Accordingly, the ostensible ground advanced to the District Judge for an adjournment of the case was never good. Had this proof of evidence been obtained earlier, then it would have been obvious to any lawyer conversant with refugee law that his claim to asylum, even if he had been granted refugee status in the United Kingdom, was not capable of being a bar to extradition under section 39 of the Extradition Act 2003. It is not good enough for an asylum claimant seeking to resist extradition to give the vague information that this claimant did to those instructed by him about the grant of asylum, or for them to do nothing beyond writing to the UKBA to investigate it. Of course, writing to the UKBA was a sensible step but it was not a sufficient step. If they had obtained the proof of evidence which they later obtained, it would have been obvious to them that the claimed asylum status asserted by the claimant could not have availed him in the extradition proceedings. The District Judge's instinct proved right. If the proof of evidence had been obtained earlier, it would also have been obvious that if any other ground to resist extradition were to be relied upon, then it would have to be set out in the proof of evidence, and in accordance with the directions of the court given on at least three occasions, filed with the court and provided to the CPS.[9]The Criminal Procedure Rules apply to extradition proceedings to the extent that they can be applied (see USA v Senior District Judge, Bow Street Magistrates' Court [2007] 1 WLR 1157, paragraph 76). The current version of the Rules, which were mirrored by their 2011 equivalent, empower a Magistrates' Court to give a direction on its own initiative for the management of a case before it. Its duty, set out in Rule 3.2(f), includes "discouraging delay ... and avoiding unnecessary hearings". Under rule 3.5(6):
"If a party fails to comply with a rule or a direction, the court may— (a)fix, postpone, bring forward, extend, cancel or adjourn a hearing; ... (c)impose such other sanction as may be appropriate."
In an extradition context, where speed is of the essence, those rules plainly apply with at least equal force as in any other criminal case. This court thrice sought a proof of evidence and a statement of issues to be filed and served on the CPS. If that had been done, the case could have been disposed of within, or at any rate not far outside, the statutory time limit for dealing with extradition cases. It is the failure of the claimant, including perhaps (although I have no right to inquire behind the veil of legal professional privilege) those who represented him, that he did not comply with clear court orders. It is no good to say, "I was waiting for the UKBA to respond to letters". It is no good to say, "Until my asylum claim was finally determined one way or another, I could not advance my case". For the reasons that I have explained, if elementary steps had been taken to explore the validity of the asylum claim, it would have revealed that it lacked any basis and could and should have led to the rapid and full deployment of any other bar to extradition upon which the claimant sought to rely.[10]In those circumstances, the District Judge was perfectly entitled to refuse to adjourn the case. His decision cannot possibly be criticised as irrational or unlawful or not open to him for some other reason.[11]Mr Hawkes, who has made economical and helpful submissions to me today, submits that nonetheless the District Judge should have warned the claimant beforehand, before adopting the draconian step of refusing to allow him to advance other bars to extradition on 31 October or to give evidence about it. Mr Hawkes, acknowledging the well-known case of Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), realises the difficulty that that would place a claimant in if he sought on appeal to raise the issues that he should have deployed at first instance. I acknowledge that it would have been preferable for Deputy Senior District Judge Wickham to have made what is called in another context an "unless" order on 31 August 2012 but the Criminal Procedure Rules to which I have referred gave District Judge Evans expressly the power to do that which he did. He was entitled to do it, his reasons for doing it were cogent and, in my judgment, by taking the step that he did, he committed no error of law or irrationality and his decision is not open to challenge in judicial review proceedings.[12]Because of the importance of the issues for other cases, and for that reason only, I give permission to apply for judicial review. The judgment which I have given is my judgment on the substantive review and, accordingly, it can be reported.[13]Mr Hawkes, we now have the appeal.[14]MR HAWKES: Yes, my Lord. I just did not catch the last few words of your judgment.[15]MR JUSTICE MITTING: I said that I have given you permission to apply for judicial review because of the importance of the issues the case raises, and so my judgment can be reported. Ordinarily, a judgement refusing permission cannot be, and certainly does not carry the same weight as does one on a substantive review.[16]MR HAWKES: I am very grateful, I just did not catch the word reported. Perhaps I was hoping to hear the word remitted, but there we are.

MR JUSTICE MITTING: I think you would have been an optimist in the light of what I said before it.

[18]MR HAWKES: My Lord, at this side optimism is necessary.[19]My Lord, in terms of where this places the appeal, I am not going to make the argument for my learned friend but I think in many senses the judgment just given really addresses many of the Fenyvesi points.[20]MR JUSTICE MITTING: What I have just said is going to make it extremely difficult for you to surmount the Fenyvesi hurdle.[21]MR HAWKES: In the absence of anything from my learned friend, I am reluctant to concede the point entirely but on my feet I do not think I can really get round what your Lordship has found, really, as a matter of fact, as it were, which is that arguments which could have been deployed were not deployed and they were in the possession of the requested person. I think all I can say to that, and if I state it very shortly, is this: that it is a matter of fundamental importance to a man who is facing removal to face allegations some almost 12 years stale in the first instance and 6 years stale in the second, and his case being that with regard to the first warrant on multiple occasions the complainant did not attend the court, and that seems to be a failing, it is an unanswered allegation. Only for that reason do I say that the court ought to hear the appeal but I have to concede I do not think I can tackle, is it, paragraph 31 of Fenyvesi any better than that.

JUDGMENT IN THE APPEAL

[22]MR JUSTICE MITTING: I do not repeat the history of the matter which I have set out in my judgment on the judicial review claim. If anyone wishes to know more about the detail of the history, they should refer to that judgment.[23]The issues upon which the appellant now seeks to rely are all issues which, if he had complied with the directions of the court below, he could and would have raised before the court below. All of the issues would have been in his own knowledge and there was no reason why he should not have deployed them fully. Accordingly, applying Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), I decline to admit any further evidence on these matters. It follows, therefore, that this appeal must be dismissed.[24]Mr Hawkes, do you need any form of order about your own representation costs? I never know because people tell me different things.[25]MR HAWKES: I am in the same position. I think, as a belt and braces approach, my Lord, might I ask for the legal aid assessment.

MR JUSTICE MITTING: If you need it, you may have a public funding assessment.

[27]MR HAWKES: I am very grateful.[28]MR JUSTICE MITTING: There is one further matter I think I should raise with you. In the judicial review claim, you have the right to apply for permission to appeal to the Court of Appeal. I do not know whether you intend to exercise that right but, if you do, may I invite you to do it now rather than later.[29]MR HAWKES: My Lord, I suppose, formally, I ought to take instructions from my lay client but, my Lord, could I leave it that I will take instructions and if there is any intention to take it further, I will come back into court but if I do not re-appear, that is a no.[30]MR JUSTICE MITTING: That is very sensible. Thank you very much indeed.[31]MR HAWKES: I am grateful.