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
		22 March 2007

1. LORD JUSTICE LAWS: Before the court there is a statutory appeal under Part 1 of the Extradition Act 2003. The appeal is brought by Mr Piotrowski, who was ordered by the learned district judge on 14th November 2006 to be extradited to Poland to stand trial at a court at Slupsk on two charges - one of murder, one of attempted murder. The district judge discharged him in relation to four other charges.
2. A principal issue before the district judge was whether his extradition was barred by the passage of time; it was said it would be unjust and/or oppressive to extradite him because of delay in the case. It was that argument to which the district judge acceded on the four charges -- charges 3 to 6 -- upon which Mr Piotrowski was discharged.
3. The Polish authority cross-appeals under the statute in relation to that latter decision. This morning Mr Keith, for the Polish authority, has applied to this court for a direction admitting evidence that was not put before the learned district judge. The evidence in different respects is relevant both to the appeal and to the cross-appeal. Part of it is summarised in a letter from the regional prosecutor's office in Poland, dated 15th January 2007. That letter has been in the hands of Mr Fitzgerald QC for Mr Piotrowski since, as I understand it, 30th January 2007. Behind the letter there are a number of documents, and it became apparent that the documents cross-referred to other documents. Most of the documents were in Polish and translations would have to be provided. In the result, some of the documentation has only become available this week, and in particular to Mr Fitzgerald yesterday or the day before.
4. The relevance of this material in briefest outline is as follows. It is plain from the terms of the letter of 15th January itself that there is some material showing that the facts behind charges 3 to 6 only came to light so far as the Polish authorities were concerned, in December 2004. That, said Mr Keith, is plainly relevant to the merits of any argument concerning the passage of time in relation to counts 3 to 6. In particular, the documents include material showing, or apparently showing, that a man called Markowski, said to be a member of the same gang as Mr Piotrowski, had alleged that Mr Piotrowski had committed criminal acts as a member of the gang, and had so alleged in a statement in January 2005. So again that material would tend to suggest that less time had passed before the Polish authorities took action against Mr Piotrowski in relation to the matters in question than might otherwise have been supposed.
5. Those points then, as I say, in very broad outline may be evidence relevant to the cross-appeal on charges 3 to 6. So far as Mr Fitzgerald's appeal on charges 1 and 2 are concerned -- and again I summarise -- the argument is in large measure to the effect that because of the passage of time there will no longer be available to Mr Piotrowski alibi evidence that in fact was available at a previous trial.
6. The case is unusual because Mr Piotrowski was in fact acquitted of these matters at an earlier hearing. However under the Polish criminal justice system there is a prosecutor's appeal. That appeal was at length allowed with a direction for a new trial. 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 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. That is, if I may use the expression, a technical point that is not itself contentious between the parties.
7. Both counsel have drawn attention to section 29(2) and (4)(a). Subsection 29 is cross-headed "Court's powers on appeal under section 28". It is under that section that this appeal proceeds. Section 29(2) provides:

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

The material provision is that set out in section 29(4)(a) as follows:

"an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing."

8. Mr Keith says that this material was not in practical terms available at the extradition hearing, and should be admitted now for the reasons I have given in summarising his submission. Mr Fitzgerald has pointed to the dates on some of the documents, and statements made on various dates in 2005 before the extradition hearings, in particular the statement of the lady who was Mr Piotrowski's girlfriend which bears the date 21st November 2005. He says the Polish authorities have simply been sitting on this material. The hearings before the district judge took place variously from between April and I think July 2006 or perhaps later. Mr Fitzgerald submits that, given the dates to which I referred, the evidence plainly was available at the extradition hearing.
9. It is to be noted, however, that section 29(4)(a) does not establish a condition for admitting the evidence: it establishes a condition for allowing the appeal. It seems to me that even if this material is allowed in it may remain open to Mr Fitzgerald at the appeal to submit, nevertheless, that it was available at the extradition hearing for the purposes of section 29(4)(a). I say nothing about the merits of such an argument, save to note that the background to Part 1 of the 2003 Act is of course the European Framework Decision. In relation to that, there is this broad point: it is a feature of the European Arrest Warrant system that is introduced by the Framework Decision that States Parties are not obliged in the ordinary way to submit evidence supporting the factual prosecution case. The system works on the footing that the European Arrest Warrant contains all that is ordinarily necessary for the requested State to make a decision on extradition. That is certainly right. It is also right that in this particular case the Polish authorities were effectively bombarded with requests for material by the defence, and made at any rate quite a number of responses. What was not done, however, was for those representing the Polish authority in the Magistrates' Court before the district judge to appreciate that there may have been material resting in Poland highly relevant to issues concerning the passage of time; and, in the result, one way or another the material which Mr Keith now seeks to put in did not see the light of day in the Magistrates' Court.
10. This application to admit new evidence is made at the very hearing fixed for the appeal. The appeal has already been adjourned once because there was outstanding material. The matter has proceeded in a shaky and undisciplined fashion, and procedurally the court has been frustrated by a lack of clear preparation. However, it seems to me that it is not really possible to do justice in the appeal or the cross-appeal unless the court is in a position to consider this material. If Mr Keith's submissions about it are right, then it goes to the very core of the merits both of the appeal and the cross-appeal on the passage of time issue.
11. I would propose with some misgivings, therefore, to admit the evidence. It is elementary that Mr Fitzgerald's client must have an opportunity to consider it and those advising him to take instructions. It therefore may very well be necessary to adjourn the hearing today, and I will hear further submissions about that in a moment if my Lord agrees with the order I would make for the reasons I have given, namely that the evidence should be admitted.
12. MR JUSTICE BEAN: I do so agree.
13. LORD JUSTICE LAWS: Mr Fitzgerald, on that basis I do not think anyone will seek to contradict the proposition that you are entitled, with your client, to have this properly considered.
14. MR FITZGERALD: No.
15. LORD JUSTICE LAWS: I am going to adjourn it to a fixed date, but you have a choice of possible fixed dates. The dates I have are 1st May; 4th May; 14th to 16th May, I assume inclusive; and 12th to 15th June, I assume inclusive. I would have thought, though I have had only the briefest of words about it with my Lord, that with this evidence in -- although we do not know what your response might be -- it will be necessary to revise the time estimate, and I would think to two days.
16. MR FITZGERALD: Yes.
17. LORD JUSTICE LAWS: So that would rather exclude 1st and 4th May, which are single days.
18. MR FITZGERALD: Well, my Lord, I think perhaps you better allow at least a day and a half. I now make it clear that of course we are not pursuing as a free-standing point the abuse, although we say that the shifting sand goes into the passage of time issue and that the Article 3 point is also not pursued.
19. LORD JUSTICE LAWS: That is another shifting ground, Mr Fitzgerald. That was said earlier in the week; then it was said they are going to be pursued afterall, there was a phone call to the office; then it was said, "We are going to make submissions about human rights abuses." Whether it meant submissions as to the world in general about abuses in general seem very clear.
20. MR FITZGERALD: My Lord, it perhaps indicates that it is best not to try to help informally, because that is all we were seeking to do.
21. LORD JUSTICE LAWS: No, Mr Fitzgerald, it does not indicate anything of the kind, with respect to you; it indicates within two or three days before the hearing in relation to a point, namely the human rights Article 3 point, and does not depend on this material, I would have expected a clear position to be taken. But let us not quarrel about it any more. I have given you the dates which the court can fix and I propose to fix a hearing on one of those dates now.
22. MR FITZGERALD: My Lord, can I find out whether I am available on the 14th?
23. LORD JUSTICE LAWS: Certainly you can do that, and we will sit again in 15 minutes' time.
24. MR FITZGERALD: The 14th to 16th May, and ---
25. LORD JUSTICE LAWS: Fourteenth to 16th May and 12th to 15th June. We can leave out the 1st and 4th May if we are all agreed that it is more than a day's worth. Mr Keith?
26. MR KEITH: I am not agreeing, my Lord, but I am not prepared to take the risk that it does go off a day, because we will be even worse than before. I am bound to say that all the material is relevant as to passage of time, which would itself be determinative of Article 6; the Article 3 has been a free-standing ground, it has just been abandoned, in my submission it would be unlikely to take more than an hour.
27. MR JUSTICE BEAN: It may be, Mr Keith and Mr Fitzgerald -- and I hesitate to come back to this -- to put the papers in what I call a semi-professional form will assist.
28. MR KEITH: I was going to invite my Lords to return all my Lords' copies.
29. LORD JUSTICE LAWS: I am glad my Lord mentioned that.
30. MR KEITH: We submit, if my Lords would be good enough to keep the authorities, that they could be added to.
31. MR JUSTICE BEAN: It is unlikely it is going to be the same constitution, so you may as well ---
32. LORD JUSTICE LAWS: My Lord will be on circuit.
33. MR KEITH: In that case may we take everything back?
34. LORD JUSTICE LAWS: I think that would be best.
35. MR KEITH: And we can do one authorities bundle and one core bundle.
36. MR JUSTICE BEAN: I have another page that has "page 167" on it which was not the letter; so with one lot of pagination.
37. LORD JUSTICE LAWS: That is like the 13th chime on the clock that makes everything that went before uncertain.
38. MR FITZGERALD: It would, my Lord.
39. MR KEITH: If my Lord would give us 10 minutes so we could see which is the best date.
40. LORD JUSTICE LAWS: We will return at about 12.15.
(Short adjournment).
41. LORD JUSTICE LAWS: Where have we got to?
42. MR KEITH: Thank you for the time, my Lords. We are unable to agree between us, because of the two group dates 14th to 16th May I am professionally engaged all those days, but Mr Fitzgerald is free on the last day, 16th May; and of the dates 12th to 15th June I am free but Mr Fitzgerald is professionally engaged in other matters for all of those days. So we feel that the best to do is simply to leave it to my Lords to decide which date would be preferable.
43. LORD JUSTICE LAWS: The 16th is not any good because it is a single day. That is the only one you are free on, Mr Fitzgerald, is it?
44. MR FITZGERALD: Yes, my Lord. I am free on 16th May. It may be that it could be concluded in a day, but if my learned friend says it may not, we cannot guarantee ---
45. LORD JUSTICE LAWS: I am not going to fix it just for the 16th. Mr Keith may be right but I have an instinct that this may be more than a day.
46. MR FITZGERALD: Well, my Lord, on 12th to 15th June I have (inaudible) cases, but one never quite know what is going to happen with these cases. It might turn out to be on (inaudible) day or something of that sort, but I would obviously not know until nearer the time.
47. LORD JUSTICE LAWS: One thing one can say about counsel's diaries is that they tend to be a movable feast.
48. MR FITZGERALD: Well ---
49. LORD JUSTICE LAWS: It is true of counsel generally, I think, Mr Fitzgerald. It is pot luck I think. Should we just take the earlier ones ---
50. MR FITZGERALD: Neither of us could do that.
51. LORD JUSTICE LAWS: I know, but now you cannot do the June ones either I do not think one day, the 16th, is good enough.
52. MR FITZGERALD: My Lord, could I make a request, that if your Lordships are going to fix it to fix at least a date where there is some possibility I could do it and some possibility my learned friend could do it, rather than a day when we definitely know we cannot.
53. LORD JUSTICE LAWS: All right, if you make a suggestion on that basis.
54. MR KEITH: That is 12th to 15th.
55. LORD JUSTICE LAWS: Then I will fix this for 12th June. What day of the week is 12th June?
56. MR FITZGERALD: Tuesday, I think.
57. LORD JUSTICE LAWS: This case will be fixed for Tuesday, 12th June, expected to go into a second day, and I hope that it turns out that you are available, but I make it clear that that date will remain fixed, with respect, whatever the position about counsel's convenience and will not be further adjourned on any other grounds unless there are wholly exceptional circumstances.
58. MR FITZGERALD: Just one further matter. Would your Lordships then give leave for my learned friend, Mr Cooper, to represent in that situation?
59. LORD JUSTICE LAWS: If you are not free, certainly.
60. MR FITZGERALD: The second point, my Lord is this. One of the problems is that neither side appear to have the court's reasons for the acquittal, or the Court of Appeal's decision in reversing the acquittal. Your Lordships may have seen enough to see that those documents would be pretty relevant.
61. MR JUSTICE BEAN: Is there not?
62. MR FITZGERALD: No, it is just the verdict, but not the reasons.
63. MR JUSTICE BEAN: I am not familiar with Polish judgments, but do they give reasons in the way we do?
64. MR FITZGERALD: I think there is just what one would call the order, but ...
65. LORD JUSTICE LAWS: What are you asking us to do?
66. MR FITZGERALD: What I am asking your Lordships to do is to indicate that the prosecution should use their best offices to obtain reasoned decisions in both those cases. I am not saying that that should be a precondition of the matter going ahead, but I would say it is clearly in the interest of justice to know this. There is a reference in the Court of Appeal decision to the appeal being on the basis that the court below had not believed the incognito witnesses. Now that might be quite important because then it is not because they believed the alibi witnesses, but because they did not believe the prosecution case.
67. MR JUSTICE BEAN: That is why I wonder whether what we have seen is just the order, or whether what we have seen is ---
68. MR FITZGERALD: I think I can take your Lordships in the chronology to the relevant ---
69. MR JUSTICE BEAN: I am looking at pages 30 and 31.
70. MR FITZGERALD: The only explanation received subsequently is pages 84 and 85, which is from the prosecutor, which explains the prosecution' view as to why the Court of Appeal reached the view it did.
71. LORD JUSTICE LAWS: Those are the only two references that I found in the ---
72. MR KEITH: There is a third reference which my Lords may not have seen.
73. LORD JUSTICE LAWS: It is probably academic.
74. MR FITZGERALD: (Inaudible) it is now page 244.
75. LORD JUSTICE LAWS: Do you know, Mr Keith, whether there is likely to be some court document that expresses reasons which has not found its way into our bundle? Do you not know one way or the other?
76. MR KEITH: I simply do not know, but I would say this. Given that we have had the order from the appellate court of Gdansk and a protocol and an explanation from the prosecution, I would have thought the fact the prosecution felt the need to advance their estimation of the reasons could only have been because there was in existence no ruling.
77. LORD JUSTICE LAWS: That may very well be right, but I do not think it is going too far to invite you to ask your people to make an inquiry about it.
78. MR KEITH: We will certainly make the enquiry. My learned friend recognises we have no power to order it, but we will certainly do the best we can.
79. LORD JUSTICE LAWS: All right, Mr Fitzgerald, I think that is the most I can do for you.
80. MR FITZGERALD: That is, the enquiry as to the decision acquitting and the reasons for that, and the decision reversing the acquittal; but the decision of the court below and of the Court of Appeal.
81. LORD JUSTICE LAWS: Mr Keith will cause enquiries to be made in relation to that.
82. MR FITZGERALD: I am obliged.
83. LORD JUSTICE LAWS: Maybe they will bear fruit: maybe they will not.
84. MR FITZGERALD: I am obliged, my Lord.
85. LORD JUSTICE LAWS: All questions of costs obviously will go over to the substantive hearing.