Krawczyk v Court In Kielce Poland [2014] EWHC 1407 (Admin)

Case No CO/42/2014[2014] EWHC 1407 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2014
Before
THE HON MR JUSTICE BURNETT
Between
Maciej Sylwester KrawczykAppellantCourt in Kielce PolandRespondent
Joseph Middleton (instructed by Neumans LLP) for AppellantBen Issacs (instructed by Crown Prosecution Service) for RespondentHearing Hearing dates: 2 April 2014
JudgmentThe Hon Mr Justice Burnett:
[1]On 30 December 2013, District Judge Devas ordered the extradition of the appellant to Poland pursuant to a conviction European Arrest Warrant [“EAW”] to serve an 18 month prison sentence. The EAW was issued on 26 March 2013 by the Polish Court and certified on 6 May 2013 by the SOCA. There was a contested extradition hearing on 16 December 2013. The District Judge reserved his decision and handed down a detailed ruling setting out the relevant legal provisions engaged by the arguments which had been advanced before him, together with his conclusions.

The Warrant

[2]The warrant identified the defendant, his date and place of birth and his last known residence. Section B of the warrant described the type of judgments in this case as follows:
“1. Issued by the Court … dated on 5 April 2007, the custodial sentence previously suspended was ordered to be executed on the basis of the decision issued by the court… dated on 23 April 2008; 2. Issued by the court … dated on 5 April 2007, the custodial sentence previously suspended was ordered to be executed on the basis of the decision issued by the court … on 24 June 2009.”
[3]The file references for each case were identified and it was specified that the appellant had received a custodial sentence of 10 months imprisonment in respect of the first order and 8 months imprisonment in connection with the second. Further information within the EAW confirmed that the appellant did not appear in person at the trial but; “This person was properly notified about the scheduled date and place of the trial as a result of which this decision was issued and he was informed that the judgment might be issued if he did not appear at the trial V1K150/07 and V1K247/07”[4]Those were the two numbers of the cases. The warrant went on to say that the appellant was provided with the judgment and told about his right to a re-hearing, but made no request within the statutory time.[5]Details of the offences were provided in these terms:
“1. This warrant relates to three offences in total; 2. The circumstances of committing the offences: i. In the closely unidentified period from April 2005 to 7 October 2006 in (a particular location) acting with the preconceived intent in a similar way in a short period of time, 20 times he had drugs in the form of amphetamines in the dose of 0.5 gram and 1.0 gram contrary to the provisions of the Act; ii. On the closely unidentified day in the summer of 2004, in (an identified place) he provided Tomasz Raczkiewicz with a drug in the form of marijuana; iii. On 26 December 2006, in (a particular place) he damaged a car make Opal Corsa, the registration number TOS-22SC by kicking and jumping on the body and puncturing the tyres at the amount of PNN 1000, to the detriment of Robert Adamczyk.” i. In the closely unidentified period from April 2005 to 7 October 2006 in (a particular location) acting with the preconceived intent in a similar way in a short period of time, 20 times he had drugs in the form of amphetamines in the dose of 0.5 gram and 1.0 gram contrary to the provisions of the Act; ii. On the closely unidentified day in the summer of 2004, in (an identified place) he provided Tomasz Raczkiewicz with a drug in the form of marijuana; iii. On 26 December 2006, in (a particular place) he damaged a car make Opal Corsa, the registration number TOS-22SC by kicking and jumping on the body and puncturing the tyres at the amount of PNN 1000, to the detriment of Robert Adamczyk.”
[6]The EAW identified the relevant statutory provisions providing for those offences.[7]The substance of the EAW can therefore be summarised in this way. On 5 April 2007, the appellant received two suspended sentences, one of 10 months and one of 8 months imprisonment. The 10 month sentence related to drug offences. There were two of those, possession of amphetamines on 20 occasions between April 2005 and 7 October 2006; and supply of marijuana on a date unknown in the summer of 2004. The 8 month sentence was imposed for an offence of criminal damage to a motor vehicle on 26 December 2006. The suspended sentences were activated respectively on 23 April 2008 and 24 June 2009. The EAW suggests that the appellant was properly notified of the time and place of his trial in April 2007, but failed to appear. The result was notified to him.[8]Four arguments were advanced before the District Judge. First, that so far as the drugs offences were concerned, the EAW did not provide the necessary information relating to the offences required by Section 2(6) of the Extradition Act 2003. Secondly, that pursuant to Section 20 of the 2003 Act the appellant was not present at his trail, had not absented himself and would not be entitled to a re-trial. Therefore he should be discharged. Thirdly, that the appellant was entitled to rely upon Section 14 of the 2003 Act (passage of time) because it would be unjust or oppressive to extradite him. Fourthly, the appellant contended that his extradition to Poland would amount to a disproportionate violation of his Article 8 rights.[9]Only one of those arguments is now pursued, namely that relating to section 2(6) of the 2003 Act.[10]At the hearing of the appeal Mr Middleton raised a new point. He submitted on instructions that the outstanding sentence has been reduced by the Polish court to six months. That was almost exactly the time which the appellant had spent on remand in custody in connection with the extradition proceedings. If that were right it would be disproportionate to extradite him: Wysocki v Polish Judicial Authority [2010] EWHC 3430 (Admin). No proper evidence was produced in support of the argument. The appellant sought an adjournment of the hearing but instead I heard the argument which arose under section 2(6) but agreed to defer giving judgment until the factual position regarding the outstanding sentence in Poland was clarified. To that end the appellant was given until 22 April to lodge further material. The expectation was that if, as he was suggesting, the sentence had been reduced to six months the appeal would be allowed without objection from the respondent.

The section 2(6) Argument

[11]The District Judge concluded that the particulars set out in the EAW satisfied the requirements of Section 2(6) of the 2003 Act that the EAW must contain specified information:
“The information is: (a) particulars of persons identity; (b) particulars of the conviction; (c) particulars of any other warrants issued in the Category 1 Territory of the persons 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.”
[12]This case does not concern ground (d) because the appellant has been sentenced. It is submitted that the particulars of the convictions given under (b) are inadequate because the precise dates of the drug offences are not found in the EAW and the quantities of drugs involved are unclear. More generally, it is said that the language is obscure especially by use of the phrase “on a closely unidentified date”. There is no complaint about the other particulars. The District Judge directed himself correctly by reference to the decision of this court in Sandi v Craiovia Court, Romania [2009] EWHC 3079 (Admin) where the difference in requirements for particulars between accusation EAWs, governed by section 2(4), and conviction EAWs, governed by section 2(6), was discussed:
“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 terms of 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, and having regard to Article8(1) of the Framework Directive, 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. Furthermore, common sense dictates that it is likely that more particulars will be appropriate in more complex crimes such as fraud than in crimes such as simple theft. However, there is no formula for appropriated particularisation. Each case will depend upon its own facts and circumstances”
[13]I have already summarised what I take to be the meaning of the EAW. The phrase “on a closely unidentified date” is clumsy, but not obscure. It means “on a date or dates unknown”. Such a formulation is not uncommon in indictments in this jurisdiction. As regards the amphetamine charge, any sensible reading would suggest that the single conviction encompasses 20 discrete occasions on dates unknown when the appellant possessed that drug in the locality identified, each time in a quantity of half or one gram. The appellant submits that he has no real idea of the seriousness of the criminality alleged against him. I disagree. The information is clear and the sentence of one year’s imprisonment itself suggests that this was relatively low grade possession, rather than anything more elevated in culpability terms. Similarly, the detail given of the single offence of supplying cannabis to a single individual on a date unknown in the locality concerned provides sufficient information for the purposes of section 2(6).[14]The conclusion of the District Judge on this issue is unassailable. The EAW contains sufficient details of the circumstances of the underlying offences to enable the appellant sensibly to understand what he has been convicted of and sentenced for. He was in a position to raise any relevant bars to extradition. The number of offences is clear as are the broad circumstances in which they were said to have taken place.

The Remaining Sentence

[15]The information provided by the appellant to his lawyers at the appeal hearing was inaccurate. The Polish Court has not reduced his sentence. It remains at 18 months. So the argument which Mr Middleton wished to run fails. Instead he seeks to erect an entirely different argument under article 8 (albeit that the appellant has no family in the United Kingdom). It is that the Polish Criminal Code allows the court to release a prisoner from his sentence at any time after serving half of it. Those provision contrast with the automatic early release provisions which apply to most sentences of imprisonment in this jurisdiction. It follows that on his return to Poland, the appellant would be able to make an application for early release, although how it would fare is not known, not least because there is no information before this court concerning the basis upon which it would be made.[16]This was an argument available to the appellant at the hearing of this appeal. There is no ground of appeal relating to it, nor any evidence. Nothing has changed since the hearing of the appeal, save the passage of a further month. I note that the appellant being eight days late in filing a further submission. There would have been no question of deferring judgment on account of this point. It provides no basis for allowing the appeal.[17]That said, the early release provisions in Poland were discussed in Janaszek v Circuit Court Poland [2013] EWHC 1880 (Admin). In paragraph [41] of his judgment Foskett J outlined the nature of the scheme and the factors which the Polish court would take into account. This appellant, even allowing the short period that will follow the dismissal of his appeal before physical return can be achieved, will have served less than half his sentence. He will be at liberty to make his application for early release to the Polish court, providing evidence directed towards the criteria identified in the Polish Criminal Code. His application may be rejected, allowed in full or for part of the remaining sentence. On the basis of the grounds of appeal and evidence in this case, that is a matter for the Polish Court.[18]In those circumstances the appeal will be dismissed. ORDER UPON hearing counsel for the parties; IT IS ORDERED THAT:-

ORDER

[1]The appeal is dismissed.[2]The appellant’s publicly funded costs be subject to detailed assessment.[3]There be no other order as to costs. Signed: Date: