CO/8971/2006 
Neutral Citation Number: [2006] EWHC 3227 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 28th November 2006
 
B E F O R E:

LORD JUSTICE KEENE 

MR JUSTICE WALKER 
 
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LISOWSKI
(CLAIMANT)

-v- 

REGIONAL COURT OF BIALYSTOK (POLAND)
(DEFENDANT) 
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MS R BARNES (instructed by Hallinan Blackburn Gittings & Nott) appeared on behalf of the CLAIMANT
MR J KNOWLES (instructed by the CPS) appeared on behalf of the DEFENDANT
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J U D G M E N T
1.	MR JUSTICE WALKER:  The question which arises on this appeal is whether the appellant's extradition to Poland is barred under section 11(1)(c) and section 14 of the Extradition Act 2003.  Under those provisions a person is not to be extradited where it would be unjust or oppressive to do so by reason of the passage of time since the extradition offences.  
2.	The respondent sought the extradition of the appellant in order to prosecute him for two alleged offences of fraud.  The first of these related to the registration of a purchase of a car engine in 1995.  The second concerned the making of a claim under an insurance policy for damage caused by a road traffic accident.  
3.	The process of extradition was begun in the present case when a European Arrest Warrant ("EAW") was issued by the respondent in Poland on 13th August 2004.  The EAW appears to have been translated into English on 22nd May 2006 and on that same date faxed to London.  It was then certified as a Class 1 warrant by the Serious Organised Crime Agency on 7th July 2006. 
4.	After an oral hearing on 9th October 2006, District Judge Purdy on 27th October 2006 ordered the appellant to be extradited.  His conclusions, so far as material, included the following: 
 (1) Given the nature of the fraud alleged, the Polish authorities conducted a proper and expeditious inquiry frustrated, if not actually obstructed, by the appellant's whereabouts being unknown or deliberately concealed from investigators. 
(2) The appellant had lived and worked since 2000 in the United Kingdom.  However, given that his closest relatives were in Poland, it could not be said that he would suffer oppressive consequences, or anything like, if returned to Poland beyond the routine or inevitable disruption of compulsory return for trial. 
(3) There would be nothing unjust in a fraud trial of the kind alleged 11 years on.  The Polish criminal justice system must be taken to have adequate safeguards to ensure a fair trial.  No actual evidential difficulty had been demonstrated, merely possible speculative difficulties that might perhaps arise.  This was not enough to discharge the burden of establishing the bar to extradition relied on.
5.	At the hearing before the District Judge, the appellant gave evidence that he was unaware of any criminal investigation against him until he was arrested in this country pursuant to the EAW on 19th September 2006.  There is no express finding by the District Judge to the contrary.  Mr Knowles who appears for the respondent contends, however, that we should treat the appellant as someone who was evading justice.  I shall say more about this in due course.
6.	It is common ground that under sections 26 and 27 of the 2003 Act this court must consider whether the District Judge ought to have decided differently the question which was put before him as to whether the present case fell within sections 11(1)(c) and 14 of the Act.  If this court concludes that he should have decided that question differently, then it must go on to consider whether if he had decided the question in the way he ought to have done, he would have been required to order the appellant's discharge.  
7.	It is also common ground that section 14 is similar to section 11(3)(b) of the Extradition Act 1989, which was derived from section 8(3) of the Fugitive Offenders Act 1967, and that authority in relation to these provisions remains applicable.  In particular, the court should examine the matter on the basis described by Lord Diplock in the House of Lords in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 782: 
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair." 
8.	Ms Rachel Barnes, who appears on behalf of the appellant, accepts that the burden lies upon him to show, on the balance of probabilities, that it would be unjust or oppressive to extradite him by reason of passage of time.  She advances a number of reasons why the District Judge ought to have decided the relevant question differently.  
9.	I shall start with the question whether it would be unjust to extradite the appellant.  In this regard it is said to be sufficient to demonstrate a risk of prejudice in his defence by the passage of time.  Reliance is placed on the judgment of Jack J, with whom Hallet LJ agreed, in Kociukow v District Court of Bialystok III Penal Division [2006] 2 AER 451.  Jack J observed in that case that Lord Diplock had made the observations I identified earlier.  In his judgment at paragraphs 9 and 10, Jack J referred to "a very real risk" and "a serious risk" of injustice.  It seems to me that these two concepts are essentially the same.  Adopting Lord Diplock's approach, the court in relation to an injustice is primarily concerned with the risk of prejudice to the accused in the conduct of the trial itself.  In that context I shall refer in this judgment to the test as being whether there is a serious risk of injustice.
10.	At the hearing before the District Judge, the appellant gave evidence as to what he could recall of events giving rise to the charges against him.  He owned a Polonez vehicle with the registration number BIF 2518, which is identified in the EAW, and was involved in an accident with a Volvo car in 1996.  There was approximately £410 worth of damage to his car, for which he claimed against the insurance company identified in the EAW.  He had bought the Polonez vehicle from a person called Lupinska, named in the EAW, and bought a replacement engine from a person named Czarnowski, also named in the EAW, and had registered these events with the local authorities.  He denied any wrongdoing in relation to either of these events.  He said he has had no contact with Lupinska since buying the Polonez, nor with Czarnowski since buying the replacement engine.  Police officers attended the scene of the crash in 1996, took a statement from him, told him that the driver of the other car had broken the speed limit, and made a full report at the police station.  He has no paperwork from this period and no contact details for either Lupinska or Czarnowski, or any other possible witnesses.  He did say, however, that he had instructed Polish lawyers to investigate the matter.
11.	No description of the nature of the evidence against the appellant has been given by the respondent.  In these circumstances, Ms Barnes submits that crucial witnesses are unlikely to be able to be located and if located are unlikely to be able to remember relevant events.  The whereabouts of Lupinska and Czarnowski is unknown to the appellant.  Even if they could be located and were able to give evidence to a Polish court, it is reasonable to assume that their memory of events 10 or 11 years ago would be significantly impaired.  It is not known whether any documents that were produced by police at the time would still be in existence 10 years later, assuming that some form of written report was made.  Nor is it known whether the police could identify the particular officers involved.  Even if the officers could be identified and are still available, it is improbable that they would be able to remember the incident itself.
12.	Mr Knowles counters that the question under section 14 is not whether it would be unjust to try the defendant, but whether it would be unjust to return him to face trial.  In deciding this question, he submits that the court is entitled to take into account protections for the defendant under the law of the requesting state.  Authority for both these propositions is found in the judgment of Simon Brown LJ, with whom Royce J agreed, in Woodcock v Government of New Zealand [2004] 1 WLR 1979 at paragraph 21.
13.	For present purposes, I am prepared to accept those propositions, although I should observe that none of the authorities shown to us appear to me to have applied precisely the Woodcock approach to cases concerned with the European Arrest Warrant scheme.  Accepting those propositions, however, the main question which arises is whether in the circumstances of the present case protections under Polish law will remove any serious risk of prejudice to the appellant.  There is then a subsidiary question whether the appellant's conduct has been such as to disentitle him from relying on the passage of time.  I shall return to that later in this judgment.
14.	On the main question, the appellant produced no evidence to show that the Polish court has no procedure designed to identify cases where proceeding to trial would, on account of delay, constitute an abuse of process.  It was submitted by Mr Knowles that the burden lay on the appellant to show an absence of any such procedure.  He added that the court should, in the context of a European Arrest Warrant case, give the benefit of mutual trust to the courts of the requesting state and proceed upon the footing that a requesting state which is a member state of the European Union and a party to the European Convention will comply with Article 6 of that Convention and thus afford to the appellant all the necessary safeguards.
15.	In the circumstances of this case, it is not, in my view, necessary to decide that question.  Again, for the purpose of the present case only, I am prepared to assume that the Polish courts would indeed have an appropriate abuse of process jurisdiction and would, in accordance with Article 6, examine the question whether by reason of delay it would be unjust to allow the prosecution against the appellant to proceed.
16.	The fact remains that the evidence of the appellant that I have described earlier in this judgment was not countered by the respondent at the hearing before the District Judge.  This appears to have led the District Judge to describe as speculative the risk of prejudice arising from delay.  On the evidence of the appellant given before him, however, the risk of prejudice was far from speculative.  In the absence of countering evidence there is, in my view, such an obvious risk of prejudice that it would plainly be unjust to allow the case to proceed.  The present case in that regard is to be distinguished from cases such as Dziedzic v Government of Germany [2006] EWHC 1750 (Admin), where the court was furnished with information about the evidence that would be adduced in any trial and was satisfied that it was such that the requesting court would be able to provide the necessary safeguards.
17.	Mr Knowles submitted that the evidential picture is not concluded and that this court should think long and hard before shutting out a conclusion that the Polish court may, with fuller knowledge of the evidence, rule that a fair trial can be held.  It is not clear to me that a submission of that kind was in fact advanced to the District Judge.  In my view, if the Polish authorities wished to make a submission of that kind, it was incumbent on them, at the least, to put forward some evidence.  The appellant had produced evidence which pointed clearly to the conclusion he would be prejudiced.  True, as Mr Knowles points out, he had said that he had asked for investigations to be made, but at the time of the hearing there was nothing which had emerged from those investigations.  We are told by Ms Barnes that that remains the position today.  
18.	This court, in the decision in Woodcock at paragraph 21, acknowledged that the courts of the requesting state may be best placed to examine abuse of process issues.  Before relying on this proposition, however, I consider that the requesting state must produce some evidence that there was good reason to think that there would be a basis for rejecting an abuse of process application.  That has not been done here.  Accordingly it does not seem to me that it is open to the respondent to suggest that this court should simply decline to deal with the matter and leave it to be examined by the court in Poland.
19.	I turn then to the subsidiary question.  Both sides agree on the relevant legal principles.  They are found in a passage in Lord Diplock's speech in the Kakis case which immediately follows the passage I cited earlier.  What Lord Diplock said was this: 
"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him.  Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making.  Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them." 
20.	Mr Knowles submits that the appellant concealed his whereabouts.  However, there is no express finding by the District Judge to that effect.  Nor, in my judgment, could the evidence before the District Judge justify such a finding.  The respondent said that the appellant's mother was questioned in Poland by the police, who executed a search warrant at her address on 5th March 2002, and said she was unable to give any information as to his whereabouts other than that he was "abroad".  As against that, the appellant said in evidence to the District Judge that his mother did not tell him about the police raid on 5th March 2002.  It was said by Mr Knowles that the Polish authorities had interviewed other relatives of the appellant and that it was incredible that they would not have told the appellant about the police enquiry.  However, the information we have is that the appellant plainly said in evidence that he was unaware of any criminal investigation prior to 16th September 2006 and we have no finding by the District Judge to the contrary.
21.	In support of his contention that prior to 16th September 2006 he knew nothing of the criminal investigation, the appellant gave evidence before the District Judge that he had come to this country lawfully in 2000 and had held a UK Business Visa since 2002, that he had been back to Poland approximately 12 times since 2005 and that he last visited Poland in December 2005, having travelled openly by car.  He said that on that occasion he stayed for three weeks and was not challenged by the Polish police during that time.  The District Judge accepted expressly that the appellant's evidence about his visit to Poland in December 2005 may well be correct.
22.	It was said by Mr Knowles that evasion does not require a deliberate choice on the part of the appellant to seek to avoid the consequences of a criminal investigation.  I am by no means satisfied that that is right.  In any event, however, it seems to me that the conduct of the appellant, including a recent visit to Poland in December 2005, makes it quite impossible for this court to conclude that he has behaved in any way which would require this court to deprive him of the benefit of a conclusion in his favour that the delay has been such as to render a trial unjust.
23.	In my view, the most that can be said for the respondent is that the appellant's mother was uncooperative when enquiries were made in March 2002.  It is, in my view, entirely plausible that a mother who decided to be uncooperative could equally have decided to say nothing whatever to her son about those enquiries.  Overall, I can find no evidence to challenge the appellant's assertion that he has been completely open and above board, both when residing here and when returning to Poland on numerous occasions.  I conclude that there is no factual basis to support the subsidiary argument advanced by the respondent.
24.	In these circumstances, I need not examine the alternative submission of Ms Barnes that it would be oppressive to extradite by reason of the passage of time.  The appellant's position in that regard may be much less strong than it is in relation to the question of injustice.  I conclude that the District Judge ought to have decided the question which arose under section 11(1)(c) differently.  In the light of the conclusion which he ought to have reached, namely that section 11(1)(c) applied, the District Judge ought to have concluded that the defendant should have been discharged.  For those reasons I would allow this appeal.  
25.	LORD JUSTICE KEENE:  I agree.  It seems to me that the time lag of 10 to 11 years, even assuming a trial could take place now in 2006, is such as would bear out the points made by the appellant in the court below about his problems over evidence.  I accept therefore that there is a serious risk that a fair trial cannot now be held.  Despite Mr Knowles' very capable submissions, the findings of fact made below do not show that the appellant has, by his actions, deliberately caused the delay in bringing this matter to fruition.  
26.	I would add only one further point, namely that, in my judgment, one needs to be careful about how far the issue of injustice in a European Arrest Warrant case can be determined merely by the fact that the requesting state is a signatory to the European Convention on Human Rights.  Section 14 of the 2003 Act imposes a duty upon this court to make its own decision as to whether it would be unjust or oppressive to extradite someone by reason of the passage of time.  The fact that the requesting state is a signatory to the ECHR is a relevant factor but I do not myself see it as being determinative of this issue in the absence of other evidence about the legal processes in that state.  After all, states do not always comply with their Convention obligations in every case.  It is a matter of record that many signatory states have been found to have breached Article 6 of that convention from time to time.  
27.	Carried to its logical conclusion, Mr Knowles' argument would rob section 11 of most of its force in so far as it raises the issue of injustice.  The decision in Woodcock does not bear on this point, since that was not an ECHR case and there was also evidence put before the court of the trial processes in the requesting state.  For all these reasons, I too would allow this appeal and quash the extradition order.
28.	Are there any further applications from the bar?
29.	MS BARNES:  My Lord, simply following on from your order quashing the extradition order, to make a formal order to discharge the appellant. 
30.	LORD JUSTICE KEENE:  Is he in custody at the moment? 
31.	MS BARNES:  He is not.  He is on unconditional bail. 
32.	LORD JUSTICE KEENE:  He still needs to be discharged.  Very well, we will make an order for his discharge.  You have a representation order already, I suspect? 
33.	MS BARNES:  There is one for counsel, yes. 
34.	LORD JUSTICE KEENE:  Then you do not need any order from us.  I do not think you need one for Legal Aid assessment either.
35.	MS BARNES:  I do not believe so. 
36.	LORD JUSTICE KEENE:  I make it clear that if you do, you can have one.  
37.	MS BARNES:  I am obliged, my Lord.  
38.	LORD JUSTICE KEENE:  Thank you both very much.