Case No: CO/315/2006
Neutral Citation Number: [2006] EWHC 56 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 27th January 2006

Before :

THE RT HON LADY JUSTICE HALLETT DBE
THE HON MR JUSTICE JACK
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Between :

	Krzysztof Kociukow	Appellant	
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	District Court of Bialystok III Penal Division
(A Polish judicial authority)	
Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Sam Robinson (instructed by Clapham & Co) for the Appellant
Mr Mark Weekes (instructed by Crown Prosecution Service) for the Respondent

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Judgment
The Hon. Mr. Justice Jack : 
1.	This is an appeal against an order for extradition made under Part 1 of the Extradition Act 2003 following the issue of a European arrest warrant.
2.	On 6 January 2006 District Judge Evans sitting at the Bow Street Magistrates Court ordered that the appellant, Krysztof Kociukow, should be extradited to Poland. Poland is a category 1 territory for the purposes of Part 1 of the Extradition Act 2003, having been designated by the Secretary of State pursuant to section 1 of the Act. Mr Kociukow appeals against that order as provided by section 26.
3.	The extradition proceedings followed the issue of a European arrest warrant, dated 22 July 2005, by the District Court of Bialystok III, Penal Division, Poland, which was certified by the National Criminal Intelligence Service under section 2 of the Act on 15 December 2005 to be an appropriate judicial authority. The warrant was executed on 25 December. The offences in respect of which the warrant was issued were offences of attempted robbery and robbery alleged to have been committed by the appellant on 18 August 1999 in Bielsk Podlaski in Poland. The circumstances of the attempted robbery set out in the warrant were that the appellant ran into a stall with another person, brandishing a knife, with the intention of robbing a woman, Anna Jakubowska, but was prevented by her husband. Those of the robbery were that with another person the appellant hit a second woman, Teresa Niewinska, in the face with his hands and a knife, making her defenceless, and stole 2000 zlotys. The offences are each punishable with 15 years imprisonment.
4.	Section 11 of the Act, titled ‘Bars to extradition’, required the judge to consider whether the appellant’s extradition was barred by, among other matters, ‘(c) the passage of time’. Section 14 provides in relation to that:
“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.
5.	Having ruled against the appellant under section 11 the judge was required by section 21 to decide whether the appellant’s ‘extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998’.  It was alleged on behalf of the appellant that his extradition would infringe his rights in two respects. First, it was alleged that extradition would infringe the appellant’s right under Article 6  that the charges against him be heard within a reasonable time. Second, it was alleged that extradition would infringe his right to respect for his private and family life contrary to Article 8, in that he had lived in England for 6 years and had an English fiancée, Ms Sonia Johnson, whom he intended to marry and who was bearing his child. The judge ruled against the appellant on both those points. We were informed that the suggestion that the Ms Johnson was pregnant was based on a misunderstanding and was incorrect. We were however told that she was seriously ill and needed the appellant’s support. The evidence as to her illness was somewhat unsatisfactory.
6.	During the course of his submissions to us on behalf of the appellant Mr Sam Robinson accepted that the grounds of appeal based on Articles 6 and 8 could not succeed. He accepted that the ‘reasonable time’ within which Article 6 entitled an accused person to have a charge heard, began at the point when the person was officially alerted to the likelihood of criminal proceedings being brought against him: Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72. So the earliest date that the appellant could put forward here was 25 December 2005. He accepted that the balancing process which Article 8(2) required between the appellant’s rights under Article 8 and, here, the need for the prevention of crime, must be adverse to the appellant: see Launder v United Kingdom (1998) 25 EHRR CD 67. That left the appellant’s case in relation to ‘the passage of time’ under sections 11(c) and 14.
7.	The origin of  Part 1 of the Extradition Act 2003 is in part the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA). Two passages from the introduction to the Decision merit quoting in the context of the present case:
“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.
8.	The wording of section 14 of the 2003 Act closely follows that of section 11(3)(b) of the Extradition Act 1989, which in turn was derived from section 8(3) of the Fugitive Offenders Act 1967 and section 10 of the Fugitive Offenders Act 1881. Authority as to the meaning of the words as used in the former provisions must remain applicable. In Kakis v Republic of Cyprus [1978] 1 WLR 779, House of Lords, Lord Diplock stated at page 782:
“ “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.”
9.	Section 206 of the 2003 Act is titled ‘Burden and standard of proof’. It provides that any question as to burden or standard of proof must be decided as if the proceedings were proceedings for an offence with the person sought to be extradited being the person accused, and the extraditing territory being the prosecution. That means that the court must proceed as if the accused were being prosecuted before an English court with the extraditing state as the prosecutor. It is not obvious how that should be applied to issues arising under sections 11(1)(c) and 14. In my view there is an analogy with an application to stay proceedings on the ground of abuse of process arising from the passage of time. There the burden is on the accused and the standard of proof is the balance of probabilities. That was the position under the previous law relating to extradition and the passage of time. I refer to Union of India v Narang [1978] AC 247 at 293 per Lord Keith. So, in my judgment, that is the basis on which the appellant’s case is to be decided.
10.	It is the appellant’s case that it would be unjust to return him to Poland to stand his trial because over six years have gone by since the alleged offence which gives rise to serious prejudice to him in his defence. It is his case that he came to the United Kingdom in late August 1999 or soon thereafter, entered lawfully and has been residing here lawfully since then.  He asserts that he has otherwise no knowledge of the robbery, of the stalls in question, or of the women referred to. He has no knowledge now of what he was doing on 18 August 1999. There is no information as to the nature of the evidence against him. I conclude that there is a very real risk that the appellant will be prejudiced in his defence by the passage of the time that has passed. As is obvious, he is very likely to have difficulties in dealing with evidence which he first hears about over six years after the events.  Also, if, for example, the case turns on identification evidence, there is very likely to be a much greater risk after this period of time of a wrong conviction. If the appellant is not to blame for this situation, I would be satisfied that it would be ‘unjust’ that the appellant be extradited because of the serious risk of substantial prejudice to him in the conduct of his defence. 
11.	Mr Mark Weekes, who was instructed  on behalf of the respondent to the appeal, the Polish District Court, through the Crown Prosecution Service, had no instructions as to why the warrant had not been issued until last year. The explanation may be simple. It may be that it is alleged that after he had committed the offences the appellant fled from Poland and that enquiries had not been able to locate him until last year. Equally it is possible that no attempt was made to trace him. We do not know.  In this situation it cannot be for the appellant to show that there are no good reasons for the delay. It is his case that his leaving Poland was unconnected with the offences. In the absence of any explanation from the extraditing authority he is entitled to assert that there is a prima facie case calling for an answer, which is unanswered. I am therefore satisfied that it would be unjust to extradite the appellant by reason of the passage of time since he is alleged to have committed the offences.
12.	I have more difficulty with the appellant’s case that it would be oppressive to extradite him because he has been living here for six years, has got a fiancée, and that she needs his support in her illness. As I have said, the evidence as to her illness was not satisfactory. I would not be satisfied that it would be oppressive in the circumstances that they should be separated so he can stand his trial in Poland if I had thought that it were otherwise right that he should do so.
13.	I therefore find myself differing from the district judge on the issue of the passage of time and whether it would be unjust that the appellant be extradited. We have no transcript of his ruling but only a brief note of it prepared by counsel, and have not been able to consider his reasoning. 
14.	The effect of section 11(3)(b) of the 2003 Act taken with section 14 is that, if it appears to the court that it would be unjust or oppressive to extradite a person by reason of the passage of time, extradition is barred and his discharge must be ordered. There is no discretion. Section 27 of the Act applies where a person ordered to be extradited exercises his right of appeal under section 26. It provides that, where the judge ought to have decided a question differently and, if he had decided it in the way he ought to have done, he would have been required to order the person’s discharge, then the court may allow the appeal and then shall order the person’s discharge and quash the order for his extradition. That is the course that I would propose. 
15.	This case demonstrates the need for authorities seeking to enforce European arrest warrants under Part 1 of the Extradition Act to be aware that it may be necessary to provide information to the English court beyond that contained in the warrant itself.
Lady Justice Hallett:  
16.	I agree.
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	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.
	Thank you.