CO/9749/06 
Neutral Citation Number: [2007] EWHC 1982 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Date: Tuesday, 12th June 2007
 
B E F O R E:

LORD JUSTICE LAWS 
 
MR JUSTICE MITTING 

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TOMASZ PIOTROWSKI
(CLAIMANT)

‑v‑ 

THE DISTRICT COURT OF SLUPSK, POLAND
(DEFENDANT) 
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Mr Ed Fitzgerald QC and Mr Ben Cooper (instructed by Edward Fail Bradshaw Waterson) appeared on behalf of the Claimant
Mr Hugo Keith and Mr Ben Watson (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE LAWS:  These are statutory appeals brought under Part 1 of the Extradition Act 2003 against orders made by District Judge Evans at the City of Westminster Magistrates' Court on 14th November 2006.  The proceedings arose out of a European Arrest Warrant ("EAW") issued in Poland on 22nd April 2005 for the arrest of Mr Piotrowski ("the appellant") on six charges.  Charge 1 was an offence of murder said to have been committed on 7th November 2000; charge 2 was an offence of attempted murder the same day; charge 3 was an offence of participating in the activities of an armed gang from a date in 1999 to the end of 2000; charge 4 was an offence of taking part in an armed brawl on 9th September 2000; charge 5 was an offence of battery on 18th October 2000; charge 6 was an offence of armed assault causing life‑threatening injury on 28th October 2000.  It was and is accepted that all the charges are extradition offences.  
2.	The appellant was arrested in London pursuant to the EAW on 29 March 2006 and taken before the Bow Street Magistrates' Court the next day.  The extradition hearing conducted under Part 1 of the 2003 Act was adjourned from time to time and finally held before District Judge Evans on 28 September 2006.  The district judge gave judgment as I have indicated on 14 November 2006.  On charges 1 and 2 he ordered the appellant's extradition to Slupsk in Poland.  On charges 3 to 6 he discharged the appellant on the ground that it would be unjust and/or oppressive to extradite him by reason of the passage of time (Extradition Act 2003 section 14).  The appellant appeals against the order for his extradition on charges 1 and 2.  The Polish judicial authority ("the respondent") appeals against the order for his discharge on charges 3 to 6.  Such appeals may be on grounds of fact or law.  It is unnecessary to set out the statutory provisions.  
3.	The case is an unusual one at least in one sense.  The appellant, having been arrested and charged in Poland on 16 January 2001 in relation to charges 1 and 2, was acquitted on those charges on 12th April 2002.  I should mention at this point that the prosecution had been supported by anonymous witnesses whose evidence in part or whole had not been disclosed to the appellant, or presumably cross‑examined on his behalf.  However, Polish law allows a right of appeal to the Prosecutor; and in this case the right was exercised.  On being acquitted, the appellant was informed of the Prosecutor's right of appeal and two weeks later, as he has himself confirmed in his statement (paragraph 8) he received written notice that the Prosecutor proposed to exercise the right.  It seems that in July 2002 the appellant left Poland and went to live in Spain.  He was entitled to do that, as I understand it, but he did not notify the appropriate office in Poland of any change of address or of the fact that he was living abroad.
4.	On 7th November 2002 the Appeal Court at Gdansk allowed the Prosecutor's appeal apparently on the basis, strange to our eyes, that the Prosecutor had himself been at fault in the deployment of anonymous witnesses.  The court ordered a retrial on charges 1 and 2.  The appellant did not attend the appeal hearing.  He was to claim, untruthfully, that he knew nothing of it.  In fact he had been expressly informed about the hearing and was represented at it.  
5.	On 13th November 2002 he wrote to the first instance court at Slupsk notifying the court of an address in Madrid.  That was received on 19th November 2002.  The appellant has stated that he made a family visit to Poland in December 2003 and came to the United Kingdom in February 2004 where he lived quite openly in London until his arrest on 29th March 2006.  He had obtained gainful employment.
6.	On 26th May 2004 a summons was issued for the appellant's attendance at court in Poland but was returned from Spain unanswered.  A further summons was issued on 22nd September 2004, but again returned unanswered from Spain.  On 5th January 2005 a Mr Markowski confessed to being a member of the same criminal gang as the appellant.  On 6th April 2005 the District Court at Slupsk issued a warrant for the appellant's provisional detention, fresh charges having been laid on 2nd February 2005.  Then as I have said the EAW, referring to all six charges, was issued on 22nd April 2005.  
7.	The retrial of certain persons who had been the appellant's co‑accused on charges 1 and 2 began on 30th June 2005.  After one or more lengthy adjournments they were convicted on 11th July 2006, not of murder, but seemingly of an offence equivalent to manslaughter.  
8.	It is notable that a major element in the appellant's case on all six charges, both before the district judge and initially in this court, was that the respondent had perpetrated an abuse of process, principally by putting forward inaccurate and misleading material to justify the passage of time before the appellant's arrest had been sought.  That, however, has been abandoned as a freestanding argument, as has another contention, namely that the appellant's extradition to Poland would expose him to ill‑treatment in violation of Article 3 of the European Convention on Human Rights.  There remains in both the appeal and the cross‑appeal an overarching question: would it be unjust or oppressive to extradite the appellant by reason of the passage of time? 
9.	Mr Fitzgerald QC on the appellant's behalf also canvassed a prospective violation of article 6 of the European Convention on Human Rights by reference to the prospective use of anonymous witnesses at the retrial as they had been used at the first trial.  However, in the light not least of the appeal court's reasoning on 7th November 2002, which has just become available, that has been abandoned.
10.	The law relating to passage of time in this context has been canvassed in many cases.  The starting point is Lord Diplock's opinion in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782: 
"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".  
11.	There are some other broad points: a fugitive cannot plea in aid delay brought about by his own conduct; inexcusable delay on the part of the requesting state may be relevant; the onus is on the appellant to demonstrate that in the circumstances it would be unjust or oppressive to return him by reason of the passage of time "there can be no cut‑off point beyond which extradition must inevitably be regarded as unjust or oppressive" per Simon Brown LJ in Woodcock v New Zealand [2004] 1 WLR 1971 1987.  
12.	I deal first with the delay case relating to charges 1 and 2.  The whole period since the dates of the alleged offences is no doubt relevant.  But in my judgment the question here must primarily be as to the effect of delay since April 2004, since I do not accept that it can sensibly be said that the appellant might not have been properly retried on these charges if everything had been done expeditiously following the first trial.  I do not accept Mr Fitzgerald's submission that the passage of time before 7th November 2002 can be laid at the requesting state's door, as showing culpable delay on the basis that the appeal was generated by the use of inappropriate procedures at first instance by the prosecution, notably the use of anonymous witnesses in camera.  Those matters seem to me to be at some distance from any question as to culpability for delay.  Mr Fitzgerald submitted in terms that the appeal and its outcome, a prospective retrial, was oppressive because the appellant was to be put on trial again for no better reason than that the Prosecutor had adopted unfair processes which were then allowed to be corrected on appeal.  He referred to Fofama v Belise [2006] EWHC (Admin) 744 but that was a double jeopardy case.  Mr Fitzgerald specifically disavows any freestanding complaint of double jeopardy which was of course in any event not run before the district judge.  Mr Fitzgerald says the oppression arises under section 14.  But the oppression he urges arises, on his case, not from the passage of time but from the nature of the appeal.  This point then in my judgment goes nowhere. 
13.	After the appeal in November 2002, in my view much delay was occasioned by the appellant's own actions.  He went to Spain without then notifying the authorities.  Had he either remained in Poland or given notice to the court of his whereabouts in Spain or any substitute address in the United Kingdom or elsewhere, and at all points co‑operated with the authorities, it is reasonable I think to assume that the retrial would have got on foot not too long after the first summons was sent to Spain by the judicial authority in May 2004, or perhaps early the next year.  I do not accept there has been culpable delay on the part of the respondent.  
14.	That of course is not the end of the matter.  It is necessary to consider whether the passage of time, culpable or otherwise, has prejudiced the appellant.  It is said on his behalf that he has been so prejudiced because witnesses available at his first trial might now no longer be available to be called.  
15.	On 22nd March 2007 Beatson J and I adjourned this case because there was then fresh material which Mr Fitzgerald for the appellant was entitled to consider with his client.  On this part of the case it is usefully just to cite a short passage of what I said on that occasion at paragraph 6: 
"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." 
16.	Those submissions adumbrated by Mr Keith are in my judgment amply borne out by the documents; but there is more.  There was also a witness who was a bar owner, Mr Wolodkniwicz; Mr Wolodkniwicz is not tainted by the new material but, as Mr Keith has demonstrated, his evidence at the first trial was, to say the least, equivocal; and in any event he remains in Poland and so may be available.  He gave evidence at the co‑defendant's retrial.  It is right, however, to say that he did give the appellant an alibi in relation to the murder or attempted murder; though by no means did he exonerate him in terms from any complicity in these crimes.  It is also right to say that, at the retrial, he really could not remember what had happened.
17.	It is important, not least perhaps in the context of Mr Wolodkniwicz's position, that in a letter of 15th January 2007 (referred to by me in passing in the judgment on 22nd March) which came from the Regional Prosecutor's office in Slupsk, it was confirmed that the testimony given at the first trial may be read at the retrial; and that plainly must include the record of what Mr Wolodkniwicz had to say.
18.	There is also reference made by Mr Fitzgerald to another witness, Mr Kavinski, who said at the first trial that the anonymous witnesses had been bribed.  It seems, however, that he may still be available to give evidence.  As of 9th October 2006 he was serving a prison sentence in Poland.
19.	As for the lady who was the appellant's girlfriend, not only has she recanted her alibi evidence, but she has stated in terms that the appellant admitted to her that he was present at the scene of charges 1 and 2.  
20.	In my judgment, having reviewed this material overall, no case of injustice or oppression arising out of delay is shown in relation to charges 1 and 2.  
21.	As regards charges 3 to 6, the district judge said this at paragraph 21 of his judgment: 
"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." 
22.	The district judge's later reasoning shows that for his part he had considerable reservations about the reasoning in Kociukow.  However it is not, I think, necessary in this case to travel into the merits of that decision.  As I shall shortly show on the facts as we now know them, Kociukow may readily be distinguished.  I would only say ‑‑ and this is important ‑‑ that the law should not support a state of affairs where, regularly or systematically, requesting states come to be expected to include in the EAW factual material beyond what is required by the Extradition Act to be set out.  That would tend to frustrate the EAW system.  
23.	As for the facts here, it is first necessary to see when the evidence said to support charges 3 to 6 came to light.  In the authenticated letter of 15th January 2007 addressed to the Special Criminal Division care of Interpol in London to which I have referred, this is said:
"... 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 [2005] the European Writ of Arrest was issued." 
The reference to the European writ of arrest is of course to the EAW.
24.	The witness Markowski has given detailed accounts of the facts of charges 4, 5 and 6 and we have seen his written statements dealing with those matters.  It seems to me first that on the basis of all these facts there is no ground for any conclusion that there has been culpable or undue delay on the respondent's part, save perhaps ‑‑ but only because Mr Keith acknowledges it is unexplained ‑‑ one does not know what was happening between the issue of the warrant in April 2005 and the appellant's arrest in March 2006.  We only know that the warrant was certified under the Extradition Act 2003 not long before the arrest.  What had happened from April 2005 until that event remains uncertain.  That, however, seems to me on the whole to be marginal.  
25.	In my judgment, there are no concrete facts demonstrated here which would inhibit the possibility of a fair trial of the appellant on charges 3 to 6.  I do not accept that there is, without more, as Mr Fitzgerald has submitted, obvious prejudice arising out of the passage of time since 1999 or 2000: in particular, as my Lord Mitting J put to Mr Fitzgerald in the course of argument, the question of the appellant's membership of a criminal gang over a considerable period of time is capable of being considered and adjudicated, notwithstanding the delay since the events in question.  In the light of what we now know, I have concluded that the district judge's decision on charges 3 to 6 was in error.  No section 14 case has been made out.  I would allow the respondent's appeal under section 29(4)(a) of the Extradition Act 2003: that is to say, there is evidence before us not available to the district judge which promotes a different result.  The evidence is, of course, the material now seen to support charges 3 to 6 and explaining why those charges were not brought until 2005.  
26.	If my Lord agrees we should hear submissions as to the appropriate orders to be made.
27.	MR JUSTICE MITTING:  I agree that the appeal of Tomasz Piotrowski should be dismissed and the cross‑appeal of the District Court of Slupsk should be allowed for the reasons given by my Lord.
 (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).