QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON MR JUSTICE JACK
| Krzysztof Kociukow
|- and -
|District Court of Bialystok III Penal Division
(A Polish judicial authority)
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Mr Mark Weekes (instructed by Crown Prosecution Service) for the Respondent
Crown Copyright ©
The Hon. Mr. Justice Jack :
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."
The judge held that it would not be unjust or oppressive to extradite the appellant by reason of the passage of time. The first ground of the appeal is that he was wrong to do so.
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures." [From paragraph (5)]
"Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender." [Paragraph 8]
Article 3 of the Decision sets out grounds for mandatory non-execution of a European arrest warrant and Article 4 sets out optional grounds. The passage of time is neither a mandatory nor an optional ground.
" "Unjust" I regard as primarily directed 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 cover all cases where to return him would not be fair. 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 on 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."
Lady Justice Hallett:
LADY JUSTICE HALLETT: We now hand down our judgments in this case. For the reasons given in those judgments, the order for expedition of Mr Kociukow will be quashed.
Mr Robinson, Mr Weekes, anything else we need to do?
MR ROBINSON: Yes, my Lady, just an order for an assessment of costs, please.
LADY JUSTICE HALLETT: Very well. Mr Weekes, I appreciate from your submissions that it sounds as if you attempted to give the appropriate advice and it went unheeded. Thank you both for your assistance.
MR ROBINSON: My Lady, there is just one other matter. I do not know what the bail position was, whether it falls away, but I suspect that it will sorted out at Bow Street.
LADY JUSTICE HALLETT: Well, once we have quashed the extradition order, presumably all other orders or detention orders or remand get quashed as a result.
Thank you both very much. (Pause)
Just for the sake of clarity, Mr Robinson, you were seeking an assessment of publicly funded costs? You were not seeking an order for costs against them?
MR ROBINSON: No. Well, the position is that this is a privately paid individual, so it would be an application for costs from the Central Fund for those costs to be assessed.
MR JUSTICE JACK: When you say from the Central Funds, that means that the respondent to the application is the Polish court. I mean, in an ordinary case, if Parliament seeks an order for costs, it will be made against the respondent. Now, this is a rather more complicated situation, so it requires pause for thought; so who is going to be asked to pay the costs and on what basis?
MR ROBINSON: Well, my understanding in situations such as these is that the application for costs is usually through the Central Fund.
LADY JUSTICE HALLETT: This is a akin to the order for costs sometimes made in a criminal trial?
MR ROBINSON: Yes.
LADY JUSTICE HALLETT: Mr Weekes, any observations?
MR WEEKES: None, if the order for costs is through the Central Funds, my Lady.
LADY JUSTICE HALLETT: And you accept that we have jurisdiction in this court to make a similar order as one might be able to do in a Crown Court?
MR WEEKES: I have often seen the order made when a judgment is given. (Pause)
LADY JUSTICE HALLETT: The appellant's costs to be paid out of the Central Fund for assessment in the usual way.