Goluchowski v District Court in Elblag Poland [2015] EWHC 332 (Admin)

Case No CO/5487/2014[2015] EWHC 332 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 4 February 2015
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
MACIEJ GOLUCHOWSKIAppellantv
Between
DISTRICT COURT IN ELBLAG 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)
Mr J Stansfeld (instructed by Lawrence & Co) appeared for AppellantMs S Iveson (instructed by the Crown Prosecution Service Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE MITTING: Mr Stansfeld, for the appellant, makes two applications in connection with the appeal. The first is to admit recently obtained medical evidence about the condition of the appellant's mother. The second is that the hearing of the appeal should be adjourned so that the issues briefly canvassed in that evidence can be more fully explored.[2]It is necessary to say a little about the background. The extradition of the appellant is sought on a conviction warrant issued in 2010. The appellant and his mother arrived in the United Kingdom in 2010 and she, and until his arrest on 1 August 2010 he, lived in Leeds but the evidence suggests that they lived at separate addresses. In the GP's report of 21 December 2014, which despite its date was not it seems put before the District Judge, her address is given as 57~Buslingthorpe Lane, Leeds LS7 3AH. In the letter responding to questions asked by the appellant's solicitor dated today, 4 February, her address is given as Flat 6, 1 Oak Road, Halton, Leeds LS7 3JU. The appellant, according to the statement of the arresting police officer, was arrested at neither address but at 41 Sholebroke Place, Chapeltown, Leeds, the police having originally attended at 43 Sholebroke Place to arrest him. The warrant seeks the extradition of the appellant to serve sentences imposed for drug possession and trafficking. On arrest, cannabis was found in the house at which he was arrested and there was a strong scent of cannabis in the premises.[3]Before the District Judge an Article 8 case was briefly advanced. It is not entirely clear what it was. The appellant's proof of evidence referred in paragraph 4 to his partner, Ewa Malasinska, with whom he said he had been together for 3 years. It also referred to his mother's health, which he briefly describes as that she was an alcoholic since he was 3, has artificial veins and had surgery because she had had two heart attacks. He spoke to his mother on the telephone and she cried every day because of his situation.[4]There is an undated and unsigned statement from his mother, which it seems was not before the District Judge, in which she says that he has lived with her since they arrived in the United Kingdom 6 years ago. She says that he did shopping for her and helped her with the cooking and the washing and supported her financially.[5]It was clear when the District Judge heard this case that the mother's health was poor and the fact that she was due to undergo an operation for amputations in December 2014 which was eventually cancelled suggest that the severity of her condition must then have been known. Her General Practitioner's answers to the questions asked by the appellant's solicitors today suggest that following amputation, which make take place within the next 6 months, she will require rehabilitation of 6 months and that her life expectancy is in the order of 3 years.[6]On the basis of that material Mr Stansfeld submits that the appellant has a viable ground upon which to resist extradition because of his mother's condition and because of the care which, Mr Stansfeld asserts, he has provided to her.[7]The evidence so far obtained does not begin to satisfy me that he lived with his mother. I also doubt, given the circumstances in which he was arrested, that he provided anything other than occasional assistance to her. My doubts are by the by. Plainly, on any view, if this argument was going to be advanced, it had to be (and if this argument is now going to be advanced, it would have to be) subject to careful examination, including cross-examination by the requesting authority.[8]I am entitled to ask, and do, why this material has only been produced at the very last minute. The hearing took place on 23 October 2013. The District Judge's judgment was delivered on 21 November 2014. The state of the appellant's mother's health was, I am satisfied, known, and known in detail, at the time of the hearing before the District Judge. Although this is an Article 8 case, and although the rights to family and private life of the appellant's mother are plainly engaged, it is less than clear that his own rights to family and private life are engaged. If so, they can only be engaged indirectly by reference to the help, if any, which he provided to his mother.[9]This has all the hallmarks of being a desperate and last-ditch attempt to avoid extradition. Although there is an extended discretion in new evidence cases when Convention rights are engaged, nevertheless an appellant relying on them for the first time on appeal has to demonstrate why the evidence was not put in at first instance, what changes have occurred that make it more compelling now than then and that it would be just to admit the evidence.[10]None of those tests are satisfied here. I decline to admit the evidence. I decline to adjourn the case for further evidence to be obtained. (Further submissions by counsel)[11]MR JUSTICE MITTING: By a conviction European Arrest Warrant issued by the Vice President of the District Court of Elbag on 13 August 2010 the extradition of the appellant is sought to serve sentences of 10 months and 2 years respectively imposed on 22 October 2007 and 8 April 2008 at the Regional Court at Elbag for possession and distribution of psychotropic substances such as amphetamine on 7 June 2007 and 7 December 2007.[12]The European Arrest Warrant was certified by the Serious and Organised Crime Agency on 29 October 2010 and the appellant was arrested on 1 August 2014. His extradition was ordered by District Judge Purdy after a contested hearing on 21 November 2014. Two grounds were argued before the District Judge. (1), the European Arrest Warrant did not comply with section 2(6)(c) of the Extradition Act 2003; (2), Article 8 grounds. A notice of appeal was filed in time on 27 November 2014. Only the first ground is now pursued.[13]Section 2 of the 2003 Act was enacted to give effect to Article 8 of the Council Framework Decision of 13 June 2002, 2002/584/JHA. But, as has long been recognised, it does not do so precisely.[14]Article 8(1)(c) requires that a European Arrest Warrant should contain information including "evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2".[15]For presents purposes I am only concerned with Article 1.1, which requires that a European Arrest Warrant be a judicial decision issued with a view to the arrest and surrender by a Member State of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence.[16]It is common ground that Article 8(1)(c) sets out alternatives: there must be evidence of an enforceable judgment or of an arrest warrant or of any other enforceable judicial decision having the same effect; and of course it must be for the purpose of either criminal prosecution or executing a custodial sentence.[17]As transposed into the law of England and Wales in section 2 of the 2003 Act, the effect is not precisely the same. Section 2(3) and (4) deal with accusation warrants. Section 2(4)(b) requires that an accusation warrant must contain "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence". Subsections (5) and (6) deal with conviction warrants. Subsection 2(6)(c) is in identical terms to section 2(4)(b) so that I need not set it out again. Subsection 2(6)(e) requires that the statement in the European Arrest Warrant must contain the following information: "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".[18]The warrant which is the subject of this appeal is in simple terms. After setting out the particulars of the name, age and appearance of the appellant in box B it identifies the decision on which the warrant is based and under the heading "enforceable judgment" it says the following:
"1) Regional Court in Elbag, date October the 22nd, 2007. 2) Regional Court Elbag, date April the 8th, 2008"
. The file number of each case is then given. Box C2 identifies the length of the custodial sentence or detention order imposed:
"1) in case X K 986/07 - 10 (ten) months. 2) in case II K 105/08 - 2 (two) years"
. Box C3 sets out the remaining sentence to be served, the same as the sentences imposed. Box E describes the offences in respect of which the sentences were imposed. There is no other relevant entry in the European Arrest Warrant.[19]In fact, a good deal else had occurred in relation to the two cases, as the requesting authority made clear in its letter of 2 September 2014. In summary, it disclosed that in relation to the first of the two sentences on 13 June 2008 a sentence which had previously been suspended was activated and that on 17 June 2008 the appellant filed a motion for deferring sentence which was successful. His sentence was deferred until 19 February 2009. He then did not appear at the correction facility on the date at which he was required to, 20 February 2009, so that on 10 March 2009 the municipal police headquarters were ordered to bring the appellant to the correction facility. In relation to the second case the suspended sentence was activated on 10 March 2009. On 23 April 2009 the appellant was summoned to appear in the correction facility to start his term of imprisonment from 7 May 2009. He did not do so. So on 8 January 2010 an arrest warrant was issued in the territory of Poland. The judicial authority was then informed that the appellant might be staying in Great Britain or Ireland so that a European Arrest Warrant was applied for.[20]In an interesting, and I say at the start superficially attractive, argument Mr Stansfeld submits that this warrant did not comply with section 2(6)(c) because it did not specify either of the two domestic warrants issued, according to the information provided by the judicial authority, on 10 March 2009 and 8 January 2010. The foundation for his argument is the words of section 2(6)(c) itself. He says those were domestic warrants issued "in respect of the offences". Therefore, he submits, they had to be referred to in the warrant itself. But it is common ground that the warrant cannot in this respect be supplemented by the further information provided by the judicial authority to cure any defect in it. If the warrant does not itself contain the particulars required by the statute then it is not a valid warrant and the appellant must be discharged.[21]Before the District Judge, the same arguments were advanced but the District Judge concluded that the issue had been conclusively determined against the Appellant by a recently reported case in the Divisional Court: Poland v Wojciechowski [2014] EWHC 4162 (Admin).[22]Mr Stansfeld's starting point is the decision of the Supreme Court in Louca v Public Prosecutor, Bielefeld, Germany [2009] 1 WLR 2550, in which the question arose whether in the context of section 2(4)(b) and 2(6)(c) the reference to "any other warrant" was to a European Arrest Warrant issued in respect of the offence or a domestic warrant issued in respect of the offence only. The certified question was set out in paragraph 15, as was the answer, of the judgment of Lord Mance, with whom all other members of the court agreed:
"The question certified by the Divisional Court is: 'Whether the reference to "any other warrant" in s.2(4)(c)of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based'. For the reasons given above and those given by the Divisional Court, the answer is that the reference is to any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant."
[23]Lord Mance's words, in my view, need to be read carefully and taken as a whole. They establish that the European Arrest Warrant need not refer to any other European Arrest Warrant issued in respect of the same offence; it is a domestic warrant to which the statute is directed. However, it is a domestic warrant of a particular kind. It is, as Lord Mance observed, a reference "to any domestic warrant on which the European Arrest Warrant is based" (my emphasis).[24]For Mr Stansfeld's argument to succeed it would have to be established, if necessary by expert evidence of what Polish law required, that the European Arrest Warrant was based (my emphasis) on the domestic warrants referred to in the further information provided by the judicial authority issued to the police on 10 March 2009 and 8 January 2010. There was no such evidence before the District Judge, and there is none before me; although I acknowledge, as Mr Stansfeld submits, that in most Polish cases (and I, like most judges dealing with extradition cases, have seen many Polish warrants) the fact of the issue of a domestic warrant (often referred to as a "search warrant" within the territory) is usually cited.[25]In Poland v Wojciechowski [2014] EWHC 4162 (Admin) the Divisional Court held that it was not necessary that a conviction warrant issued by a Polish judicial authority which referred not only to the imposition of a suspended sentence but also to its activation should also refer to the search warrant within the territory for it to be valid. At paragraph 26, Pitchford LJ, with whom Cox J agreed, said the following:
"The domestic warrants, I accept, were not to do with the offences but to do with securing the surrender of the respondent to serve the sentences imposed by the court in the enforceable judgments identified."
[26]It is true that that observation was made in respect of sentences the activation of which were fully described in the European Arrest Warrant but the observation of Pitchford LJ applies, in my judgment, with equal force to a European Arrest Warrant which does not set out the process of activation of a suspended sentence for the simple reason which he identified: that the warrant is not issued "in respect of the offence". It appears to be issued in respect of the intention of the court to ensure that the requested person in fact serves the sentence which has been imposed upon him. It is, in other words, an administrative step which does not found the juridical basis for the issuing of the warrant or, in Lord Mance's words, it is not the warrant "on which the European Arrest Warrant is based", as may well be the case in an accusation case when there is nothing other than a warrant upon which to base the European Arrest Warrant.[27]That that is the proper interpretation of the underlying rationale for the requirement is, in my judgment, established by the observation in Artola v Spain [2013] EWHC 524 (Admin) by Toulson LJ at paragraph 8:
"The effect, therefore, of section 2(4)(b) is that the EAW must identify the jurisdictional fact which, under the law of the issuing state, provides a legal basis for issuing an EAW within the scope of Articles 1 and 2. By 'jurisdictional fact' I mean the legal process which domestic law recognises as a proper foundation for the issue of the EAW. To take a simple building analogy, the EAW must identify the foundation brickwork on which the EAW stands."
[28]If there had been evidence which had been accepted by the court that Polish law required the issue of a domestic search warrant before a European Arrest Warrant could be issued by the judicial authority then, in Toulson LJ's words, not all of the jurisdictional facts would be stated in the warrant. Because, as I have already observed, there is no such evidence in this case, and nothing which can be derived from the case law to demonstrate that it must be accepted to be the case in any Polish extradition case.[29]There would be a problem for the judicial authority if English law required there to be set out in the European Arrest Warrant a statement to the effect that a suspended sentence had been activated and by which court and when. But that issue has been settled by a long line of authorities illustrated by Kamil Bulkowski v Regional Court of Elblag Poland [2012] EWHC 381 (Admin) in which, having reviewed the authorities, at paragraph 19 Treacy J (as he then was) said:
"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."
[30]Under English law, on the basis of a settled statement of the law at this level, it is therefore not required that the European Arrest Warrant should state that a sentence initially suspended was later activated. All that is necessary is that the founding decision upon which the European Arrest Warrant was based, namely the conviction of the appellant and the imposition of a sentence of imprisonment upon him, must be stated on the face of the warrant.[31]On that analysis, this warrant fully complies with the requirements of section 2(6).[32]For these reasons, which are rather longer than given by the District Judge in deference to the skill and detail of the arguments addressed to me, I dismiss this appeal.[33]MR STANSFELD: My Lord, I am grateful. Can I just make one observation. My Lord made reference to the fact that I appeared in the court below when it was not, I have only appeared on appeal, it was Ms Gildernew, my instructing solicitor.[34]MR JUSTICE MITTING: I am so sorry, you are quite right. You told me so as well, so it is my slip. If ever I have to correct a transcript, which given that this is an appeal I will have to, I will correct that mistake.[35]MR STANSFELD: My Lord, I am very grateful. My Lord, it will come as no surprise that I will give consideration to seeking to certifying a question in this matter. I am not in a position, and I do think it would be wise, to try and create one on my feet now.

MR JUSTICE MITTING: No, I do think that would be wise either.

[37]MR STANSFELD: I have 14 days in which to put it before the court. May I ask simply ask at this stage therefore for an expedited transcript. I have taken a fairly detailed note but of course an expedited transcript will enable me to ensure that I am postulating the question on a proper basis.[38]MR JUSTICE MITTING: Yes, I cannot extend your time. This is not an ordinary civil case in which I can extend time for doing things, there is a strict statutory time limit and so you need to have, if it can humanly be done, a corrected transcript from me so that you can formulate your question appropriately.

Cited in 1 later judgment