England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		6 February 2007

1. MR JUSTICE LLOYD JONES: This is an appeal pursuant to section 26 of the Extradition Act 2003 ("the 2003 Act"), as amended by the Extradition Act 2003 (Multiple Offences) Order 2003 (Statutory Instrument 2003/3150), against an order of Senior District Judge Workman made on 17th August 2006 ordering the extradition of the appellant, Michal Srama, to Poland.
2. On 21st December 2005 Judge Andrzej Bauk, a Judge of the Regional Court delegated to the District Court in Bydgoszcz, issued a European Arrest Warrant requesting that Michal Srama be arrested and extradited to Poland. Although the Warrant does not expressly state that his extradition is sought for the purpose of conducting a criminal prosecution, it is clear from the contents of that document that that is its purpose. The Warrant relates to two offences, which are particularised in the translation of the warrant as follows:

"1. In the period from March 2004 to August 14, 2004 in Zakrzewek Wiecbork Commune, acting in the conditions of one forbidden act, realising the preconceived intent, jointly and in accord with other persons as to which a separate proceedings is pending, assisted supplying Marek Dobrzanski precursors and tools for starting up and running of a professional technological line for production of considerable amounts of narcotics in the form of amphetamine at the volume of at least 2 kgs, what is against the provisions of the Act.

2. In the period from March 2004 to August 14, 2004 in Bydgoszcz and other specified places, acting in the conditions of one forbidden act, realising the preconceived intent, jointly and in accord with other persons as to which a separate proceedings is pending, against the provisions of an Act introduced considerable amounts of narcotics in the form of amphetamine on the market, at the volume of at least 2 kgs, coming from the technological line in Zakrzewek 48, Wiecbork commune."

3. The nature and legal classification of the offences are said in the translation of the warrant to be as follows:

"I. act - illegal trafficking with narcotics and psychotropic agents - article 18 paragraph 3 of the penal code in relation to the article 53 item 2 of the Act as of July 29, 2005 on narcotism counteraction in relation to the article 12 of the penal code.

II act - illegal trafficking with narcotics and psychotropic agents - article 56 item 3 of the Act as of July 29, 2005 on narcotism counteraction in relation to the article 12 of the penal code."

The maximum length of the custodial sentence which may be imposed for the offences is said in each case to be a custodial sentence of 15 years. The framework offence identified in the warrant is "illicit trafficking in narcotic drugs and psychotropic substances".

4. On 26th April 2006, a representative of the Serious Organised Crime Agency in the United Kingdom issued a Part 1 Certificate pursuant to section 2(7) of the 2003 Act.
5. On 17th August 2006, following an extradition hearing, Senior District Judge Workman ordered the extradition of the appellant to Poland pursuant to section 21(3) of the 2003 Act.
6. The appellant now appeals against the order for extradition in accordance with sections 26 and 27 of the Act and seeks an order for his discharge. The principal submissions on behalf of the appellant may be summarised as follows:

(1) The respondent made clear at the extradition hearing that the appellant was no longer accused of or wanted for the purposes of the prosecution for the alleged conduct described as act 2. His extradition in respect of act 2 should not therefore have been ordered.

(2) The warrant identifies the relevant framework offence as the "illicit trafficking in narcotic drugs and psychotropic substances". However, under Polish law the conduct alleged in act 1 is not defined as trafficking in narcotics, and it follows, therefore, that the framework offence has been incorrectly identified in the warrant and that section 64(2) of the 2003 Act has not been satisfied.

(3) The warrant is not a valid Part 1 warrant because it fails to contain sufficient particulars of the offence. It fails to state the correct provision of Polish law under which the conduct described constitutes the offence and it fails to state correctly the particulars of sentence which may be imposed under Polish law in respect of the offence.

(4) The requesting authority has indicated that the appellant would be prosecuted under the law currently in force which imposes a maximum sentence of 15 years' imprisonment. However, at the time of the offence the governing law imposed a maximum sentence of 5 years' imprisonment. Accordingly the appellant is at risk of receiving a harsher sentence than that applicable at the time the offence was committed and this would be an infringement of the appellant's rights under Article 7 of the European Convention on Human Rights.

7. Section 41 of the 2003 Act, as amended by Statutory Instrument 2003/3150 provides as follows:

"41 Withdrawal of warrant before extradition

(1) This section applies if at any time in the relevant period the appropriate judge is informed by the designated authority that they do not wish to proceed with their request for extradition in relation to an offence in respect of which the Part 1 warrant was issued.

(2) The relevant period is the period-

(a) starting when the person is first brought before the appropriate judge following his arrest under this Part;

(b) ending when the person is extradited in pursuance of the warrant or discharged.

(3) The judge must order the person's discharge in relation to that offence.

(4) If the person is not before the judge at the time the judge orders his discharge, the judge must inform him of the order as soon as practicable."

8. In the present case the warrant sought the extradition of the appellant in respect of two offences: act 1 - the supply of precursors and tools for the production of amphetamines; and act 2 - the introduction of amphetamine onto the market. However, the appellant submits that in a letter to the Serious Organised Crime Agency dated 12th July 2006, which was before the district judge, the first respondent indicated that it no longer sought the extradition of the appellant in respect of the second alleged offence. In addition Miss Barnes, who appears for the appellant, maintains that this was made clear orally at the extradition hearing. The appellant submits that the senior district judge erroneously concluded that the requesting judicial authority was seeking the surrender of the appellant in respect of the alleged conduct described in the warrant as act 2 - that is the supply of amphetamine. In these circumstances it is submitted that the senior district judge was obliged to discharge the proceedings against the appellant in respect of act 2, and the senior district judge having decided the matter erroneously, this court is required to quash the original order for extradition in respect of act two and to discharge the appellant.
9. On behalf of the first respondent, Miss Ezekiel now accepts that at the extradition hearing the respondent maintained the request for extradition only in respect of the conduct in act 1.
10. I accept the submission of the appellant that the letter of 12th July 2006 makes entirely clear that the extradition of the appellant is sought in respect of the first alleged offence, but no longer in respect of the second alleged offence. At paragraph 3 the letter refers to the facts alleged and explains that as the police stopped Dobrzanski at the moment when he produced the first portion of amphetamine sulphate, the appellant had no opportunity to market the drug. At paragraph 14 of the warrant again it is stated that:

"Mr Michal Srama shall not be accused of the second offence mentioned in the European Arrest Warrant."

This is followed by an explanation that in the preliminary period Dobrzanski produced only ammonium formate which is not a proscribed drug and the trafficking of which in Poland is not a crime contrary to Polish law.

11. However, it seems that the senior district judge unfortunately proceeded on an erroneous understanding of what had occurred and which charge was being pursued. At paragraph 3 of his judgment he states:

"The warrant itself refers to two incidents which are largely duplication. The Judicial Authority is proceeding on the second of the two allegations."

Similarly, at paragraph 8 of his judgment he states:

"The particulars of the conduct make it quite clear that between March 2004 and the 14th August 2004 it is alleged that this defendant was involved in a conspiracy to supply amphetamine in a volume of at least 2 kilograms and it specifies where the drugs were made. The allegation that he was a conspirator [is] quite sufficient to describe the level of participation by the Defendant."

At the conclusion of his judgment the senior district judge simply ordered the appellant's extradition to Poland.

12. I am satisfied, therefore, that the senior district judge's analysis of the request and, in particular, his consideration of the question whether the requirements of the Act had been satisfied, proceeded by reference to the wrong offence.
13. I consider that the effect of section 41(3) of the 2003 Act is that, by reason of the information communicated to the court by the first respondent, the senior district judge was required to order the appellant's discharge on the second alleged offence. He erred in failing to do so.
14. It is necessary, therefore, to consider the effect of that failure on this appeal and the request for extradition. Section 27 of the 2003 Act (as amended) provides in relevant part:

"27 Court's powers on appeal under section 26

(1) On an appeal under section 26 the High Court may-

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that-

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that-

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must in relation to the relevant offence only -

(a) order the person's discharge;

(b) quash the order for his extradition."

15. In these circumstances I am satisfied that the judge ought to have decided this question differently, and that if he had decided it in the way in which he ought to have done, he would have been required to order the appellant's discharge on the second charge. In those circumstances the High Court may allow the appeal to that extent. If it does so, it must order the appellant's discharge and quash the order for his extradition. However, the effect of the amendment of section 27(5) brought about by the Extradition Act 2003 Multiple Offences Order is that the court is obliged to do so in relation to the relevant offence only. Accordingly, I would order his discharge and quash the order for extradition in relation to the second alleged offence.
16. The question then arises as to the effect of the error of the senior district judge on the first charge. There has been produced at court this afternoon a copy of the order made by the judge. This order does not refer to either of the charges - it simply makes an order that the appellant be extradited to the category one territory in which the warrant was issued.
17. Before us Miss Ezekiel on behalf of first respondent has submitted that it is open to the court to proceed as if the senior district judge had made an order committing the appellant on the first charge as opposed to the second charge. She submits that the same legal issues arise and that we should proceed on that basis. I am unable to accept that submission.
18. It is clear from the terms of the judgment, as I have already indicated, that the senior district judge proceeded on the basis that the requesting authority was proceeding only on the second of the two allegations. In these circumstances, he did not address the submissions on behalf of the appellant in relation to the first charge. In particular, he did not address the appellant's argument that the first offence did not fall within the framework offence identified in the framework decision. I would observe here that, contrary to the submission by Miss Ezekiel, that argument is not identical to the argument which would arise in relation to the second charge. Moreover, there has been no ruling by the senior district judge on the issue which was before him - that is the issue in relation to the first charge. Furthermore, to my mind the senior district judge has not purported to make any order that the appellant should be extradited to Poland in respect for the first alleged offence. His understanding of the matter was that he was making an order in respect only of the second offence. For the reasons I have already given, I would quash that order.
19. Accordingly, I conclude that there is no order in force for the extradition of the appellant to Poland.
20. I would make four further observations. First, the proceedings for extradition are still extant. To my mind the senior district judge is still seised of them and I consider that there should be a further application to the senior district judge.
21. Secondly, I consider that in coming to this conclusion and in making the order which I propose, if the order is made, this court would not be exercising its powers pursuant to the 2003 Act to allow or dismiss an appeal: rather, it would be declaring its understanding of the position which has come about as a result of this unfortunate error.
22. Thirdly, to my mind nothing which has occurred would prevent the restoration of the proceedings before the senior district judge. Nor would it prevent a further application for the extradition of this appellant to Poland in respect of the first alleged offence. I consider that there has not yet been an adjudication on that application.
23. Fourthly and finally, so far as the further grounds of the appeal are concerned, these have not been fully argued before the court and so I make no comment in relation to them. Any arguments in relation to these should to my mind be addressed to the senior district judge.

SIR IGOR JUDGE:

24. I agree with the order that my Lord has proposed and the reasons for it. The case must therefore go back.

MISS EZEKIEL: I am grateful, my Lord. Can I just clarify one matter? Because the hearing is still extant that the appellant is still on bail, he still has an obligation to surrender to the court as and when. Of course if your Lordships disagree with me on that it would follow that bail proceedings are outstanding, the appellant is still on bail.

SIR IGOR JUDGE: We should go back to where we were, should we not?

MISS BARNES: I think my Lord perhaps, two observations to make. Firstly, with regard to the jurisdiction of this court to have made the ruling or clarified its understanding as it has done, whether or not the jurisdiction under the Act to do that, I wonder whether at this stage it might be appropriate -- under the Act there is a 14-day period by which one can put forward a certified question ---

SIR IGOR JUDGE: Miss Barnes, let us get to the real world. We produced an order, my Lord's judgment explains the reasons. What advantage is going to be to your client if this case wanders up to the House of Lords?

MISS BARNES: Well the advantages ---

SIR IGOR JUDGE: Seriously, what advantages are to him? It delays the hearing, the House of Lords may of course agree with you but it may be 12 months before it comes on for hearing.

MISS BARNES: In very practical terms?

SIR IGOR JUDGE: Yes, that is what I am after. What is the practical advantage?

MISS BARNES: The immediate advantage to him is that he is about to become a father in a few weeks, and so to put -- but not putting it very specifically, any delay under these circumstances is a very immediate advantage; so obviously very practical advantages ---

SIR IGOR JUDGE: So this is just a delaying step so he can happily enjoy the birth of his son or daughter without being under the pressure of the present proceedings. I think you had better try on a better basis than that another time. What is your second point? You said there were a couple.

MISS BARNES: There were. The second point with regards to bail, if I can just turn my back for one moment.

SIR IGOR JUDGE: Yes, of course.

MISS BARNES: No, I do not think we have any objections to proceeding as Miss Ezekiel has suggested under the circumstances.

SIR IGOR JUDGE: He is still the appellant although he has had a successful appeal, Mr Srama will now continue on bail on the same conditions that obtained as at the time when he was before District Judge Workman.

MISS EZEKIEL: My Lord, yes, and for clarity once of course the senior district judge or any district judge makes on order the only condition is that he surrenders as directed either by your Lordships or another court ...

MISS BARNES: I believe ---

MISS EZEKIEL: If it be the order of the court the court will inform him that he is to surrender to the courts. I am quite content for it to proceed on the same basis.

SIR IGOR JUDGE: At the moment he is on unconditional bail, is he not?

MISS BARNES: He is on conditional bail, and there is the additional condition to that he surrenders either to the court or at a time and place that the court determines so there are certain conditions to his bail in addition to the condition that I have just been highlighting.

SIR IGOR JUDGE: We will order that he will continue on bail on the same conditions as before. I would be very grateful if you could let our associate have a copy of the conditions so the order will be made, and then no doubt those who instruct you will be told when the hearing will take place and they will ask him to come. In the meantime let us wish him all the best for the birth of his new child. Thank you both very much.

MISS BARNES: I beg your pardon, my Lord, there is one other point in terms of an application for assessment for the purposes of legal aid with regard to this hearing.

SIR IGOR JUDGE: Yes.

MISS BARNES: I am grateful.

SIR IGOR JUDGE: Thank you both very much.