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 WC2A 2LL
		23 March 2010

1. MR JUSTICE GRIFFITH WILLIAMS: Following his conviction of two offences of assault and drug offences, the appellant, who was on bail, was sentenced in his absence on 18 August 2006 at the Regional Court in Elblag 11, Criminal Division, Poland, to 18 months' imprisonment, of which 1 year, 1 month and 17 days remain to be served.
2. He came to this country in October 2006. On 18 November 2007, a Domestic Arrest Warrant was issued. On 14 January 2008, a European Arrest Warrant was issued. This was certified by the Serious Organised Crime Agency on 23 March 2009. The appellant was arrested on 6 January 2010, and on 15 January 2010, in the City of Westminster Magistrates' Court, District Judge Caroline Tubbs ordered his extradition to Poland.
3. He appeals against that order on the following grounds: first, that, as he was not legally represented at the hearing on 15 January 2010, he was deprived of his Article 6 rights; secondly, that his extradition would be incompatible with his Article 3 rights, and so barred by section 21 of the Extradition Act 2003 -- although a ground of appeal was that his extradition would be incompatible with his Article 8 rights, that ground of appeal has been abandoned; thirdly, that the European Arrest Warrant did not satisfy the requirements of section 2 of the Act; and fourthly, that a copy of the warrant was not given to him as soon as practicable after his arrest, in breach of the provisions of section 4(2), of the Act.
4. As the lawfulness of the European Arrest Warrant is a condition precedent to any extradition proceedings, I shall consider that ground of appeal first. Section 2(5) and section 2(6) of the Act, and in particular paragraph (e) of section 2(6) of the Act, provide that, in the case of someone who is unlawfully at large, the European Arrest Warrant must contain particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence. The submission made is that the warrant specifies only the aggregate sentence for all of the offences, and does not specify the sentences for the individual offences and so one or more of the sentences may be for less than 4 months (see section 65(3) of the Act), and so not qualify as an extradition offence. For the reasons given by Lord Hope of Craighead in his opinion in Pilecki v the Circuit Court of Legnica Poland [2008] UKHL 7, there is nothing in that submission; in short, section 2(6)(e) must be read with the modifications specified in the Schedule to the Multiple Offences Order 2003, and to sections 10 and 65 of the Act.
5. Mr Atlee submitted that, notwithstanding that decision, the warrant is nonetheless defective, and so unlawful, because there are inconsistencies as to the offences in respect of which the appellant was sentenced. The point, taken shortly, is that the certificate issued by the Serious Organised Crime Agency specifies offences different to those specified in the warrant.
6. It is necessary to consider the terms of the warrant, which can be done quite briefly, because, on my reading of the warrant, the point made by Mr Atlee has, in fact, no substance. His submission is that, on the reading of the warrant, there are six offences but on reading the warrant, it is perfectly clear that there are two offences of assault, both committed on the night of 11 March 2006 and 12 March 2006 in a park in Ilawa, Poland, the first against an identified complainant who sustained an undisplaced nasal fracture, the second against an identified complainant who sustained bruising. The confusion seems to have arisen because both offences were expressed to have been committed within 5 years of the commission of an earlier offence of violence. The drug offences are identified in the warrant as one series of offences, and it is clear that the drug offences related to the possession of and the supply of amphetamine to others.
7. For those reasons, there is, in my judgment, no substance in the argument as to the form of the warrant, and, in my judgment, it complies with the provisions of section 2 of the Act.
8. The second point taken about the warrant is the failure to provide the appellant, as soon as reasonably practicable, with a copy of that warrant, as required by section 4(4) of the Act. There is no issue that the appellant was not provided with the warrant, and the attendance note of the solicitor who acted for the appellant on 7 January is agreed. That records that a submission was made that the appellant should be discharged because of non-service of the warrant, and the district judge said:

"I find the warrant was not served, but this is a post-conviction warrant, no prejudice. I use my discretion not to discharge".

9. There is an issue as to further findings of fact made by the District Judge, which I consider it unnecessary to detail. In my judgment, it must be a matter of inference that the appellant knew full well of the proceedings in Poland; knew that he was due to be sentenced; knew that he had been sentenced; and it was for that reason that he left the jurisdiction of the Polish courts. In my judgment, the decision of the District Judge, one for the exercise of his discretion, cannot be criticised. It was a decision which, on the same facts, I would have reached myself.
10. The appellant was brought before the Magistrates' Court on 7 January, as I indicated earlier. The solicitor's attendance note records that the appellant did not consent to extradition and raised Article 3 and Article 8 issues as bars to extradition. Bail was refused and the hearing adjourned to 15 January. The submission made is that, on 15 January, the appellant was informed by the District Judge that he had not been granted a Legal Representation Order, and so, contrary to his expectations, he had no legal representation. It is submitted that, in the absence of that legal representation, and the time to prepare his case, he was not equipped properly to identify the issues and represent himself. It was submitted that his case needed careful preparation, and it follows that there was inequality of arms at the extradition hearing. These are matters, it is submitted, which amounted to unfairness in breach of Article (2) of the Framework Decision of 13 June 2002, and so constituted an abuse of process.
11. Reliance is placed upon that part of the judgment of the Lord Chief Justice, Lord Phillips, in R (Governor of the United States of America) v Bow Street Magistrates' Court [2007] 1 WLR at 1157, at paragraph 84, where the Lord Chief Justice set out the four stage procedure which is required to be taken when an abuse of process is alleged. As part of that four stage procedure, the judge is required to consider whether the conduct, if established, is capable of amounting to an abuse of process. The note of the judgment of the District Judge is in these terms:

"Mr Pisarek did not ask for an adjournment of the hearing, he was not legally represented, legal aid had not been granted as insufficient financial details had been provided. When the court enquired whether Mr Pisarek wished for an opportunity to supply those financial details, or to pay privately for a lawyer to represent him, he indicated he did not. He confirmed in terms that he was ready to proceed with the extradition hearing that afternoon".

I observe that that note earlier records that the appellant had the benefit of an interpreter.

12. On those findings of fact, the explanation for the lack of a Legal Representation Order was the failure of the appellant to provide the necessary financial details. He cannot now rely upon that failure to invalidate any part of the proceedings before the District Judge on 15 January. In any event, the note makes clear that it was his wish that the case proceed on that day and he asked for no adjournment.
13. I turn to consider the submissions made in respect of the appellant's Article 3 rights. The arguments advanced in this court are far narrower than those advanced in the Magistrates' Court. The submission made by Mr Atlee in this court is that the appellant's Article 3 rights will be infringed by reason of the prison conditions in Poland, and in particular, the overcrowding in Polish prisons. Reliance is placed upon the Strasbourg decision of the European Court of Human Rights in Orchowski v Poland (22 October 2009), no citation provided. Mr Atlee relies also upon a number of United States State Department reports on human rights in Poland. There are six in all between 2006 and 2010, the 2009 report being dated 11 March 2010.
14. In the Strasbourg decision in Orchowski, that court found it established, to the standard of proof required under Article 3 of the Convention, that the majority of the cells in which that applicant had been held for most of his detention, over a period of some 6 years, were overcrowded beyond their designated capacity, leaving him with less than the required minimum space, and concluded that there had been a breach of his Article 3 rights. In the most recent State Department report, it is reported that prison and detention centre conditions in Poland remained poor in 2009, and did not meet international standards.
15. On behalf of the respondent, Miss Rafter submitted that the burden of establishing an Article 3 claims lies on the appellant; that the appellant must show that there are substantial grounds for believing that, if extradited, he would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country; that a real risk is more than a mere possibility, but something less than the balance of probabilities; and an assessment of the threshold of risk appropriate in the circumstances to engage Article 3 necessarily involves an assessment of the sufficiency of state protection to meet the threat of which there is a risk. There is a high evidential threshold for the appellant to satisfy. He has to establish that, if he is returned to Poland in accordance with the extradition order, there is a real risk to him of an Article 3 breach, the Article 3 breach relied upon being prison overcrowding. While it is perfectly permissible for him to rely upon the State Department report, it must be borne in mind that they are historical records and, as Miss Rafter pointed out, they are reports in which the State Department set out to identify potential human rights problems.
16. Miss Rafter also submitted that regard should be had to the fact that the decision in Orchowski is very much fact specific. The judgment contains a close analysis of that applicant's treatment during his period of 6 years custody in Polish prisons, and the judgment is concerned with what happened to him. She submitted, and with this submission I entirely agree, that it cannot be concluded from that judgment that all prisoners in a Polish prison will be held in such conditions as will amount to breaches of their Article 3 rights. At most, that decision points to the risk of a potential exposure to conditions which might breach those rights, and she submitted that that would be insufficient evidentially to satisfy the necessary threshold to establish a real risk of a breach of the appellant's Article 3 rights.
17. It is important to note that, in that judgment, the Strasbourg Court emphasised that it was dealing with historical matters. Paragraph 89 of the judgment reads:

"The government submitted that the problem with overcrowding in Polish detention facilities had started in September 2000. It was at its worst in November 2006, with a rate of overcrowding peeking at 24 per cent. Since then, however, a series of robust measures have been undertaken to fight the problem of overcrowding. As a result, the rates of overcrowding, calculated for all detention facilities, dropped, by September 2008, to 6.8 per cent, and calculated only for prisons and remand centres, to 8.1 per cent."

18. Later in the judgment, the court acknowledged that these were matters which had been addressed by the Constitutional Court in Poland, in its judgment of 26 May 2008. That judgment makes clear that the Constitutional Court had viewed with seriousness the problem of overcrowding. The Strasbourg Court, at paragraph 152, took note of the fact that the respondent state has recently taken certain general steps to remedy the structural problems related to overcrowding.
19. In the State Department report, it is recorded that, while there is prison overcrowding, the government generally respects the human rights provisions, and whilst prison and detention centre conditions remain poor, and did not meet international standards, overcrowding eased somewhat during 2009. Indeed, at the year end, the prison population was at 95 per cent of capacity. The State Department report recorded that:

"On December 6, a new provision took effect that provides mechanisms to prevent prison overcrowding, including deferring sentences if the total number of prisoners would accede the prison capacity. In an effort to meet this requirement, prison officials converted many common areas, such as activity rooms and libraries, into cells".

20. On the available information, I am not persuaded that, in respect of this appellant, there is a real risk that, if returned to Poland, he will be detained in such overcrowded prison conditions as will breach his Article 3 rights. The material, to which I have referred in some detail, indicates that while there are problems, these are problems which are being addressed by the authorities in Poland, and being addressed as a matter of urgency.
21. For all the reasons which I have sought to explain in the course of this judgment, I would dismiss the appeal.
22. LORD JUSTICE TOULSON: I agree.
23. In Orchowski the European Court of Human Rights concluded that, from 2000 until at least mid 2008, overcrowding in Polish prisons and remand centres revealed a structural problem which was incompatible with the Convention. Since May 2008, there have been four significant developments to which Griffith Williams J has referred. First, on 26 May 2008, the Polish Constitutional Court ruled that conditions in Polish prisons exposed detainees to the risk of inhuman treatment, and required that measures be taken to stop this. Secondly, the European Court of Human Rights gave its judgment in Orchowski on 22 October 2009. Thirdly, on 6 December 2009, a new provision took effect in Poland that provided mechanisms to prevent overcrowding, including deferring of sentences if a total number of prisoners would exceed prison capacity. Steps have also been taken to convert communal areas such as libraries into cells. Fourthly, at the end of 2009, the total prison population in Poland was below the total capacity level instead of exceeding it, as it had done historically over a long period. The third and fourth facts emerging from the US State Department report, to which reference has already been made.
24. We have no reason to doubt that the Polish prison authorities have taken, and will take seriously, the rulings of both the Polish Constitutional Court and the European Court of Human Rights. The third and fourth developments are indicative that they have.
25. I agree that the appellant has not established to the requisite standard, a risk that his extradition to Poland now would place him at risk of Article 3 ill-treatment. On all other issues, I also agree with Griffith Williams J.
26. The appeal is therefore dismissed.
27. MR ATLEE: I have no applications to make.
28. LORD JUSTICE TOULSON: No. Thank you very much.
29. MISS RAFTER: My Lord, I wonder if I may raise one matter. It is in respect of the -- I am greatly assisted, I should say, by my instructing solicitor who appears in court behind me, since the appeal has been in progress. It relates to the current European Arrest Warrant that is outstanding at the City of Westminster, which I mentioned at the start. I should perhaps draw your Lordship's attention to section 44 of the Extradition Act.
30. LORD JUSTICE TOULSON: Yes.
31. MISS RAFTER: Which deals with the term of that section as of course competing warrant, and competing, in my submission, does relate to a situation such as this.
32. LORD JUSTICE TOULSON: Well, there is authority on this. What are you going to ask us to do?
33. MISS RAFTER: Well, my Lord, the first application I would make is that the appellant, in this case, extradition pursuant to the warrant that was before your Lordships today could be deferred until the warrant at the City of Westminster has also been disposed of.
34. LORD JUSTICE TOULSON: Well, I think what you had better do is go away and look this point up and mention it later in the day. I remember being a member of this court which dealt with either an appeal or a judicial review application where there were successive EAWs issued by the same judicial authority, and as I recall, Workman DJ deferred dealing with the first until after the others had caught up. We had a good deal of argument about whether they were competing warrants, and my recollection is that we concluded that they were not competing warrants, but, as always, my memory on this is likely to be wholly deficient. All I am saying is I think you need to look through the point, and then, if you are going to make a specific application, tell the other side and come back and make it.
35. MISS RAFTER: My Lord, forgive me, as your Lordship was detailing that incident, the case has sprung to mind. The name of the case escapes me, but I do recall this situation, my Lord, and of course it was in terms of the fact that it was from the same judicial authority. My Lord, I do remember that point. Perhaps if I could leave it as I had set out at the outset, that it may be for those who instruct me --
36. LORD JUSTICE TOULSON: Well, if we do not see or hear from you again, we thank you for your assistance, if we do, we shall no doubt be told exactly what it is you apply for and on what, ground.
37. MISS RAFTER: My Lord, I am very grateful.
38. LORD JUSTICE TOULSON: Thank you very much.