Zawadzki v Regional Court in Warsaw, Poland [2013] EWHC 433 (Admin)

[2013] EWHC 433 (Admin)Case No CO/8811/2012Case No CO/2141/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 March 2013
Before
MR JUSTICE KEITH
Between
Albert ZawadzkiAppellantRegional Court in Warsaw, PolandRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss Unnati Bhatt (instructed by Guney, Clarke & Ryan) for AppellantMiss Natasha Draycott (instructed by The Crown Prosecution Service) for RespondentHearing Hearing date: 1 March 2013
JudgmentAs Approved by the CourtCrown copyright©
[1]On 12 August 2012, the appellant, Albert Zawadzki, was arrested pursuant to a European Arrest Warrant issued by the Regional Court in Warsaw on 28 February 2012 (“EAW1”). The warrant had been certified by the Serious Organised Crime Agency on 14 June 2012. An extradition hearing took place at the City of Westminster Magistrates’ Court on 13 August 2012 at which District Judge Zani ordered Mr Zawadzki’s extradition to Poland. That was not a surprising outcome, because Mr Zawadzki was represented by a solicitor with experience of extradition cases who did not suggest that there was any bar to Mr Zawadzki’s extradition. Despite that, Mr Zawadzki now appeals against the order for his extradition.[2]On 20 December 2012, Mr Zawadzki was arrested again, this time pursuant to another European Arrest Warrant issued by the Regional Court in Warsaw on 24 October 2012 (“EAW2”). This warrant had been certified by the Serious Organised Crime Agency on 11 December 2012. An extradition hearing took place at the City of Westminster Magistrates’ Court on 20 February 2013 at which District Judge Coleman ordered Mr Zawadzki’s extradition to Poland. Mr Zawadzki appeals that order for his extradition as well. This is the Court’s judgment following the hearing of both appeals.[3]Both the warrants were what are colloquially called conviction warrants. EAW1 sought Mr Zawadzki’s extradition so that he could serve a sentence of two years’ imprisonment imposed on 19 May 2009 for three offences of fraud committed between April and June 2005. That sentence had been conditionally suspended for five years, but it was activated on 29 July 2011 after he had “evaded the curator’s surveillance” (which I take to mean that his whereabouts were not known to his probation officer) and he had committed “intentional crime” (which I take to mean another offence). EAW2 sought his extradition so that he could serve a sentence of one year’s imprisonment imposed on 30 January 2007 for an offence of infringing the bodily integrity of a police officer in March 2006. That sentence had been conditionally suspended for four years, but it was activated on 16 June 2010. EAW2 did not say why.[4]I deal with the appeal relating to EAW1 first. The appellant’s notice said that full grounds were to follow. None were ever filed. However, in the section of the notice which was to be completed if Mr Zawadzki was making any additional applications, the box for applying for a stay of execution was ticked, and Mr Zawadzki made the following statement in connection with that application:
“I live here with girlfriend, if there is any chance can I stay in prison here. I was imprisoned for one year in Poland. I was harassed, threats and psychologically. I was also assaulted a few times. It’s much safer for me here. Another reason, I wouldn’t be able to find work in Poland and I had a job here.”
Mr Zawadzki was represented on the appeals by Miss Unnati Bhatt. She was under the impression that this statement constituted Mr Zawadzki’s grounds of appeal, and said in her skeleton argument that while these grounds were not abandoned, they were not pursued with any additional submissions or evidence. Even if they were grounds for appeal (which they were not), in the absence of any evidence in support of them, they cannot be pursued at all.[5]The only argument which Miss Bhatt deployed related to the information which EAW1 contained. Poland has been designated a category 1 territory pursuant to section 1 of the Extradition Act 2003 (“the Act”). Accordingly, Mr Zawadzki’s extradition is governed by Part 1 of the Act. The information which a conviction warrant must contain is that provided for by section 2(6) of the Act (which is in Part 1). That information is required by section 2(6)(b) to include “particulars of the conviction”, and by section 2(6)(e) to include “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 giving of this information is critical because a failure to do so is fatal to a request for extradition. That is the effect of what Lord Hope said in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] AC 1 at [28]:
“If the warrant … does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section, and Part 1 will not apply to it.”
[6]At one stage I thought that the point being taken by Miss Bhatt was that the particulars of the “intentional crime” which Mr Zawadzki committed and which was partly responsible for the activation of the conditionally suspended sentence were not given in EAW1. However, it turned out that her argument was much more refined than that. It had to be, because she acknowledged that there was ample authority for the proposition that neither section 2(6)(b) nor section 2(6)(e) required the warrant to include details of an offence for which someone’s extradition was not being sought, but the commission of which was the justification for the activation of a suspended sentence of imprisonment: see, for example, Kaminski v A Judicial Authority in Poland [2012] EWHC 280 (Admin) and Powierza v District Court in Warsaw, Poland [2013] EWHC 36 (Admin). Her argument went like this. The warrant contained no information about the “intentional crime” which Mr Zawadzki was supposed to have committed. Mr Zawadzki did not know whether he was simply suspected of having committed it, or whether he had been charged with it, or whether he had been tried for it in his absence, or whether he had been convicted of it, or whether he had been sentenced for it, and if so what his sentence had been. He was therefore concerned that when he was extradited to Poland, he might be “dealt with” for that offence. Information about the stage which any criminal proceedings in respect of that offence had reached would enable him to know what to expect on his return. That is the information which Miss Bhatt says EAW1 should have contained.[7]There are, I think, two fundamental problems with that argument. First, if neither section 2(6)(b) nor section 2(6)(e) require the warrant to include details of an offence for which someone’s extradition was not being sought, but the commission of which was the justification for the activation of the suspended sentence of imprisonment which he was being extradited to serve, all the more so why they would not require the warrant to include the stage which any criminal proceedings in respect of that offence had reached. Indeed, the language of sections 2(6)(b) and 2(6)(e) is inconsistent with that. Secondly, Mr Zawadzki’s concern about being “dealt with” for his “intentional crime” on his return to Poland is catered for by the speciality arrangements between this country and Poland. The effect of those arrangements is that Mr Zawadzki cannot be “dealt with” (to use the language of section 17(2) of the Act) unless the “intentional crime” was an offence falling within section 17(3). The practical effect of that is that he will not be “dealt with” for that offence unless the offence is not punishable with imprisonment or any other form of detention, or the courts in this country consent to him being dealt with in Poland for that offence. It may be that these speciality arrangements are difficult to police, but extradition proceeds on the basis of mutual respect between nations. Indeed, when it comes to the Framework Decision on the European Arrest Warrant, it has been said that the assumption underlying it is that “member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other’s judicial institutions”: Lord Bingham in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at [4].[8]This latter point is entirely consistent with the approach taken by Irwin J in Pieniazek v The Judicial Authority, Provincial Court of Czestochowa, Poland [2012] EWHC 3986 (Admin). Like the present case, a suspended sentence of imprisonment had been activated after the appellant had committed three further offences, only one of which was identified in further information provided by the requesting authority. Irwin J noted that that information did not make clear whether there was “any outstanding penalty”, but he said that the speciality rule was “a complete answer” to the argument that the appellant’s extradition “may lead to other sentences being served”.[9]I have not overlooked the reliance which Miss Bhatt placed on Echimov v Court of Babadog, Rumania [2011] EWHC 864 (Admin). At [25] Davis J (as he then was) said:
“… the individual for whom extradition is sought needs to have enough information to understand what he has been convicted of and sentenced for with a view, amongst other things, to assessing whether proper grounds [for] opposing extradition might apply. In the present case, whilst the appellant may know the total sentence he is facing, he has, on the face of the European Arrest Warrant, no means of knowing for what the now activated six month sentence was imposed. Thus, to take one example, he has no means of assessing whether it was indeed he, as a matter of identity, who was the subject of the initial conviction and suspended sentence, or, by way of another example, of knowing whether or not the conviction was rendered in absentia.”
It is important to understand the context in which those remarks were made. The appellant in that case had been required to serve a year in prison following his conviction for an offence whose particulars were given, and excused from serving a further six months’ imprisonment. That was described as a “conditional release”. He was subsequently ordered to serve those six months when he was convicted of another offence. The particulars of that conviction did not include any details about the nature of the offence. In the light of the language used in the warrant, Davis J concluded that the warrant related to both offences, which was why he concluded that the failure of the warrant to give particulars of the later offence was fatal to the enforceability of the warrant. So the observations which he went on to make related to why it was important for particulars of an offence for which the appellant was being extradited to be given. Wholly different considerations apply to particulars of an offence which resulted in the activation of a suspended sentence of imprisonment but for which the offender was not being extradited.[10]I turn to EAW2. Grounds of appeal were filed in respect of EAW2. Two grounds were relied on. First, it was said that Mr Zawadzki was “entitled to the protection of passage of time”, which I take to be an argument pursuant to section 14 of the Act that it would be unjust or oppressive to extradite him by reason of the passage of time since he became unlawfully at large. Secondly, it was said that Mr Zawadzki’s extradition was barred by virtue of Art. 3 and/or Art. 8. Again, although the grounds were not abandoned, they were not pursued with any additional submissions or evidence.[11]The district judge found that Mr Zawadzki had left Poland without providing his probation officer with an address in the UK, knowing that the suspended sentence for the offence to which EAW2 related had been activated. He therefore became a fugitive from justice, and the lapse of time which has occurred was down to him. There is, in my opinion, no basis for challenging that conclusion.[12]The evidence before the district judge on which Mr Zawadzki based his claim that his extradition would be incompatible with his rights under Art. 3 and Art. 8 related to his time in prison in 2000. He complained of mental and physical abuse while he was there. A gang in prison forced him to be tattooed with a dot on his nose which signified that he was a police informer, which caused him to be severely beaten. He feared that he would be beaten up by the same gang if he was returned to prison. The district judge noted that Mr Zawadzki’s evidence was completely uncorroborated, and that the events which he described, if true, had happened some twelve years previously. There was nothing to suggest that the same people were still in prison, or that they still bore him a grudge. In any event, the district judge referred to the presumption that member states have adequate safeguards within their prison estate to protect prisoners who are vulnerable or under threat. There had to be clear and cogent evidence before that presumption could be rebutted. There was no such evidence. In my opinion, there is no basis for challenging that finding.[13]For these reasons, the appeals in respect of both EAW1 and EAW2 must be dismissed, with no order as to costs save that there be a detailed assessment of Mr Zawadzki’s publicly funded costs.