QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MITTING
|THE DISTRICT COURT OF SLUPSK, POLAND||(DEFENDANT)|
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Mr Hugo Keith and Mr Ben Watson (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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"unjust" I regard as directed primarily at the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed at the hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; there is room for overlapping and, between them, they would cover all cases where to return him would not be fair".
"So the point now being taken on the passage of time appeal in relation to charges 1 and 2 is that evidence which Mr Piotrowski was able to deploy at his first trial is no longer available. There are two witnesses - Mr Iszesko and Mr Mylnski, and also a lady who has been I think Mr Piotrowski's girlfriend. Mr Keith"
- then and today Mr Keith appears for the respondent -
"submits that (though this is not apparent from the letter of 15th January, it is clear from the material he now wishes to put in) the lady who was Mr Piotrowski's girlfriend has in fact recanted her evidence earlier given in his favour, and his other two defence witnesses, Mr Iszesko and Mr Mylnski, turned out to be, so it is said, members of the same gang as Mr Piotrowski is said to belong to; and thus the argument would go, this material greatly undermines, if it does not eliminate, the force of Mr Fitzgerald's submission that he has lost valuable alibi evidence because of the unavailability of these witnesses. Mr Keith points out that the documents are authenticated because they appear under cover of a letter bearing the stamp, and I think signature, of the Polish prosecutor, and provision is made by section 202 of the 2003 Act allowing the admission of material so authenticated."
"In contradistinction to the murder and attempted murder allegations we know nothing of the nature of the prosecution evidence in support of the other charges. Jack J in Kociukow concluded in paragraph 10: '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 time that has passed. As is obvious, he is 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.' That is very much the position here. In relation to the murder and attempted murder one can blame Mr Piotrowski for leaving Poland when he knew his acquittal was subject to an appeal. However, in relation to these other charges, they had not (although seemingly they could have) been preferred against him before his first trial. To follow the reasoning in Kociukow must result in these charges being discharged. I am required to respect that authority and apply it. I therefore discharge Mr Piotrowski in respect of these charges."
"... we kindly inform that the four allegations dismissed by the British Court [that is charges 3 to 6] were not included in the same proceedings as murder of Robert Kapron and an attempt of murder of Leon Choinski and were not submitted at the time when he was in Poland, because at that time there was no evidence confirming participation of Tomasz Piotrowski in an organised armed criminal group and participation in beatings with use of fire arms and other dangerous tools on 9 September 2000, 18 October 2000 and 28 October 2000. The evidence was obtained later, since only on 07 December 2004 a letter from a suspect - Rafal Markowski arrived at Regional Prosecutor's Office in Slupsk, in which he asked for interrogation because he wanted to discover other vital facts which he had not mentioned before. On 5th January 2005 and on subsequent days, Rafal Markowski was interrogated and only from the interrogation did it result that Tomasz Piotrowski belonged to an organized armed criminal group and that due to his involvement in the group he participated in the beatings. Based on the interrogations, a decision concerning submitting charges and procedure was initialized aiming at issuance of European Writ of Arrest without delay on 02 February 2005. On 22 April  the European Writ of Arrest was issued."
The reference to the European writ of arrest is of course to the EAW.
(The appellant's appeal is dismissed on charges 1 to 2; the judicial authority's appeal is allowed on charges 3 to 6 and remit those matters to the district judge with a direction that he proceed as he would have been obliged to do had he found no section 14 case on those charges; The appellant is remanded in custody on charges 3 to 6, he being already in custody on 1 and 2).