England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1st February 2011

1. MR JUSTICE DAVIS: This is an appeal brought by Mr Robert Olszewski pursuant to the provisions of section 26 of the Extradition Act 2003 against an order of District Judge Riddle made on 7th October 2010 whereby the District Judge ordered the extradition of the appellant to Poland.
2. The background facts can be relatively briefly stated. The appellant is a citizen of Poland. The offences in question and by reference to which his extradition was sought took place in around 2001. In the event the appellant left Poland in 2002 before any charges had been brought against him. In a witness statement put in by the appellant and which was before the District Judge, and indeed by reference to which the appellant gave oral evidence before the District Judge, the appellant said that he left in 2002, essentially because he was fearful of retribution and violence from certain criminal persons connected, he says, with the Mafia. He says that he did not in any way leave Poland in 2002 to avoid being prosecuted in respect of the current matters. It was part of his evidence contained in his witness statement (in respect of which part of his evidence I was told he was not cross-examined before the District Judge) that he had been interviewed with regard to these matters by the police in 2001 but thereafter so far as he was concerned no further steps had been taken.
3. The warrants themselves were issued and certified in the course of 2010. There are two warrants. The first, emanating from the relevant court in Poland, starts off, after reciting that it is of course a European Arrest Warrant:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

Thereafter in box (a) details are given. In box (b) there is specified the decision on which the warrant was based, that specifying it as an arrest warrant or judicial decision having the same effect, that was by judicial decision of the District Court in Katowice of 29th December 2005. It states with regard to whether there was an enforceable judgment that it was "NOT APPLICABLE". Indications of the length of sentence then were given by reference to the maxima are there set out. Then under box (d) it was said with regard to a decision rendered in absentia, that was "NOT APPLICABLE". Then with regard to the other matter, namely "The person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia but has the following legal guarantees after surrender (such guarantees can be given in advance)", and the answer was this, as translated:

"THE ACCUSED PERSON WAS NOT PRESENT WHEN THE COURT IMPOSED PRELIMINARY DETENTION ON HIM BECAUSE HE WAS IN HIDING FROM THE POLISH PROSECUTION AGENCIES. AFTER SURRENDER, HE SHALL HAVE THE RIGHT TO APPEAL AGAINST THE DECISION TO THE COURT OF HIGHER INSTANCE".

And then with regard to the typed-in proforma question specifying legal guarantees no answer was given to that.

4. Details were then given of the offences in respect of which the warrant was issued. First, it was said that from March until the end of the year 2001, in Warsaw and other towns, he led an armed criminal organisation, referred to as a particular named group, the purposes of which was to commit offences against property. Second, it is said that he committed a continuous offence in combination with the same criminal group relating to an amount of amphetamines. Third, it is said that from March until June 2002, in Belchatow, acting jointly in concert with other persons for the purpose of gaining material benefit in a criminal organisation (again referring to the same group) and using various methods, he attempted to obtain property in a significantly large amount of money.
5. So far as the second arrest warrant was concerned, that also started with the words:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

Then details are again given in table (a). In (b), with regard to the decision on which the warrant was based, it is said that it was based on an arrest warrant or judicial decision having the same effect, the order on preliminary detention being dated 19th March 2010 and issued by the District Court in Bialystok. It then referred to whether the judicial decision involves an Enforceable judgment, stating: "not applicable". Then the indications on the length of sentence were answered by what the prospective maximum length might be, and with regard to length of custodial sentence or detention order imposed it was said "not applicable", as likewise was the answer to the question regarding the remaining sentence to be served. Again, the matters relating to decisions rendered in absentia were set out and so far as the legal guarantees question was concerned that was answered "not applicable". In terms of the details of the matter, the answer, as translated, was this "Robert Olszewski is under suspicion that...": and then it sets out in the period of time from April 10th 2001 to April 30th 2001 in various places, certain alleged matters which, in summary, would seem to involve some kind of insurance fraud involving an amount of 17,000 Polish zlotys.

6. It may be noted that the answer to the formal question in the first European Arrest Warrant stated, as translated, that the appellant was "hiding". However, before the District Judge it was expressly conceded for the purposes of that hearing that the appellant was not barred from arguing passage of time as a fugitive. It was said at that stage that the respondent's lawyers had only very recently received notification of the nature of the defence case and the requesting state had not had time to confirm the statements in the warrant to the effect that the appellant was a fugitive.
7. In the event, after the hearing before the District Judge it appears that further attempts were made on behalf of the requesting state to find out more details about this finding that the appellant was "hiding". According to a witness statement made by Miss Tyler at the end of January 2011 several requests were made to the Polish authorities to provide the details. Ultimately an answer was provided by a document dated 19th January 2011. In the event that document, which I initially read de bene esse, did not really seek to justify an assertion that the appellant was a fugitive or was "hiding" in the sense that he had left Poland deliberately to evade prosecution for these matters, but in the event sought to comment on the amount of intervening delay that had occurred.
8. Miss Kopel, on behalf of the appellant, objected to the admission of this evidence, saying that it was too late.
9. Having considered the matter, I decided that I would not grant leave for this document to be put in. It may well be that before the District Judge the requesting state had only had relatively short notice - although I was told that it was some weeks - of what the defence was going to be, although I have to say that upon the footing the matter was going to be opposed it did not take too much imagination to see that an assertion of delay, injustice and oppression and so on was likely to be raised. But more than that, many, many weeks have elapsed since the decision of the District Judge. The answer from Poland only came in on 19th or 20th January 2011. It then took some days after that for the witness statement of Miss Tyler to be prepared and served. Miss Kopel told me she only received this information a day or so before this hearing before me. Taking all these matters together, I declined to grant leave to allow this extra material to be adduced as evidence.
10. This court well understands the difficulties that can be occasioned in requesting information from requesting states, and indeed it also adds to the delay that translations and the like are needed once the relevant authorities have processed the information. It must be borne in mind, however, that extradition matters do need to be dealt with as a matter of expedition and it is important that materials relevant to an extradition case are produced promptly. If they cannot be produced promptly at the relevant time then they should be produced promptly if they are sought to be relied upon at a later hearing: leave of course being necessary for such purpose.
11. The District Judge in his ruling dealt with the matter both fully and carefully. He indicated that he was satisfied that what might be called all formal matters were fulfilled. He dealt fully with the issue of passage of time. It was noted that before him, as indeed on this appeal, both limbs of section 14 of the Act were raised: that is to say whether it would be unjust for the appellant to be extradited or whether it would be oppressive for the appellant to be extradited, although in truth there can often be a degree of overlap between the two matters. In dealing with the question of whether there would be injustice and whether the appellant could have a fair trial, the District Judge indicated that he was satisfied that Poland could and would ensure that the appellant would have a fair trial if he were extradited. As he said:

"Historic trials are, for a variety of reasons, not uncommon here and I am sure the same applies in Poland. Courts bear in mind the difficulties that arise when witnesses are dead or cannot be traced."

Dealing with the argument specifically on oppression, the District Judge's ruling was to this effect:

"The factual background relied on is that the defendant has been in this country for eight years. Despite a disability that restricts his work, he nevertheless does have employment. However he had also told me he that his former wife works and as a result the caring responsibilities for the children fall on him. He says that as he has been backwards and forwards to Poland, and received an identity document from the Polish authorities, he has been lulled into a sense of false security. There is nothing in this argument. There will be hardship arising from extradition, as there almost always is. However this hardship is at the lower end of the scale. The children can be cared for by their mother who is in work. Moreover the allegations faced by this defendant are very serious. I do not find that the defendant has been lulled into a sense of false security. It is well established that some functions of the state are properly conducted without necessarily involving other functions of the state. For example the Polish embassy would not necessarily know of any potential criminal proceedings, and neither would the Town Hall that he says he visited more recently."

The District Judge then cited the case of Spanovic [2009] EWHC 723.

12. The District Judge then went on specifically to deal with whether it would be compatible with the defendant's Convention rights to extradite him, in particular having regard to Article 8, and decided that it would be.
13. The first point taken by Miss Kopel logically by reference to this appeal is that the District Judge had no jurisdiction to make the order that he made because, as she submitted, the warrants did not comply with the requirements of section 2(2) and (3) of the 2003 Act. Putting it broadly, she submitted that the warrants, when one looked at them, did not make clear whether or not extradition was sought on the basis of these being accusation warrants or conviction warrants. She had a further point by reference to the second warrant that it did not make clear whether or not this was an accusation warrant or whether or not the appellant was simply the subject of suspicion, as opposed to having been formally arrested and charged.
14. It seems to me that there is nothing whatsoever in those points. True it is that in the case of each of the two warrants the warrants start with the ambiguous wording that the request was directed for the purposes of "conducting a criminal prosecution or executing a custodial sentence or a detention order". But thereafter, when one looks at the substance of each of the warrants - and it is elementary in this context that one construes the warrants as a whole - what in each case is clearly intended and clearly designated is an accusation warrant. For example, taking the first European Arrest Warrant, the box indicates that there is an arrest warrant or judicial decision having the same effect resting in the judicial decision on 29th December 2005 and that there is no enforceable judgment. Then, in the indications on the length of sentence, the maximum length of sentence is specified for each of the relevant matters. That would be incomprehensible if this were a conviction warrant whereby he had already been sentenced. Again, in dealing with box (d), by reference to whether or not a decision had been rendered in absentia, what is said is that the "accused person" was not present because, so it was said, he was hiding. The words "accused person" speak for themselves. Miss Kopel sought to make something out of the absence of any answer to the specification of legal guarantees. That was not something that needed any answer and has no bearing on whether or not this can properly be construed as possibly connoting a conviction warrant. Reading the arrest warrants in the round, I am in no doubt at all that these were valid accusation warrants.
15. With regard to the second arrest warrant, Miss Kopel did latch on to the words as translated contained in the section dealing with the description of the offence that the appellant is "under suspicion" that he had done the various matters alleged. Her suggestion was that the words "under suspicion" were vague and did not connote that this was a true accusation warrant in the sense that he had been arrested and charged. But again, reading the warrant as a whole, there is nothing in that. The words "under suspicion" are perfectly capable of accommodating either scenario, and when one looks at the remainder of the warrant it is quite clear that this is a valid accusation warrant. Accordingly, this technical ground, which I add does not seem to have been taken below, is of no substance and I reject it.
16. Miss Kopel's primary point, however, was by reference to section 14. First, she submitted that it would be unjust for the appellant to be extradited and that the District Judge was wrong in concluding to the contrary. Miss Kopel emphasised the lapse of time that had occurred here, the events in question having taken place in 2001. She draws attention in particular to the witness statement of the appellant submitted before the District Judge below and in respect of which he gave oral evidence to the effect that, as he said, one potentially important witness, being a warehouse owner, had in the interim period died. It has to be said that quite what relevant evidence that warehouse owner might have given is not entirely clear, nor indeed does the appellant name him in his witness statement. But suffice it to say it seems to me the District Judge dealt with this entire issue properly, and indeed, if I may be permitted to say so, in an orthodox way. As the law currently stands, the essential position is that ordinarily (albeit rebuttably) one can trust fellow member state countries to give persons fair trials compliant with Article 6. As the District Judge pointed out, all courts are familiar with difficulties that can be raised by cases which have historic features to them. It is to be presumed that Poland will accord the appellant a fair trial compliant with Article 6; certainly, there is no evidence before me to rebut that. It seems to me that the District Judge was justified in concluding as he did that, notwithstanding the lapse of time, there would be no injustice in extraditing the appellant to Poland to face a trial there.
17. The particular emphasis of Miss Kopel's argument under section 14, however, was by reference to her submission that it would be "oppressive" to return the appellant to Poland. Here again she emphasised the delay that had occurred here, these matters going back as far as 2001. Furthermore, the appellant had explained in his witness statement that he had been interviewed in respect of, if not both, then certainly at least one of these matters in 2001 and yet nothing thereafter happened so far as he was concerned.
18. In the course of her arguments, Miss Nice, on behalf of the respondent, submitted that there was no evidence to establish that he had indeed been so interviewed; but the answer is there is evidence to this effect, that is to say what he himself says in his witness statement. If that was desired to be challenged then it should have been challenged by way of cross-examination before the District Judge. It is, however, right to record that the District Judge seems to have made no express finding one way or the other in that respect; but all I can say is that he had no material, as I see it, on which to disbelieve the appellant on that particular point.
19. Secondly, Miss Kopel then said nothing has happened since to cause the appellant to believe that he would be facing prosecution for these matters. As stated in his witness statement, and as the District Judge seems to have been prepared to accept, he has in the interim gone back to Poland on several occasions quite openly, just as he has been quite openly living in the United Kingdom. For example, on one occasion, as he sets out in his witness statement, he applied in Poland for an identity card, but no challenge was made in consequence of him having done that or any indication given that the police were then seeking him. That is a point to be borne in mind. But, as the District Judge pointed out, and as Miss Kopel rightly accepted, one cannot equate all branches of the state for this particular purpose. What a town hall may know may not be the same as what the police may know and one cannot, as it were, roll all their knowledge together in that sense.
20. The third point that Miss Kopel made is that the appellant cannot fairly be described as a fugitive in the sense of having deliberately fled Poland to avoid a prosecution which he knew was pending. As I have noted in the first extradition warrant, the Polish courts have recorded that the appellant was "hiding"; but, as I have also said, it was not contended before the District Judge that he was a deliberate fugitive and that remains the position before me today on the material admissibly put before me. The position thus is that the appellant did deliberately leave Poland in 2002 as he says to avoid retributive action from certain persons against him, but it is not shown that he did so with a view to evading prosecution for these matters.
21. Fourth, Miss Kopel relies on the fact that since 2002 the appellant has established a home in England. He is married (although as I gather he is separated from his wife) and he has two children, aged about eight to ten, to whom of course he is very close and I have no doubt they are very close to him. Further, he has been working quite regularly in the United Kingdom, at all events until an unfortunate industrial accident.
22. Finally, Miss Kopel in this context referred me to the decision of the Divisional Court in the case of Kovac [2010] EWHC 1957 Admin. That, it must be remarked, was a decision on its own particular facts, as indeed all these cases are. But she says that the approach of the court there at all events is significant, and she says that the decision in that case, whereby a European Arrest Warrant was not acceded to and an appeal against an extradition order was allowed, should likewise be applied in this particular case, albeit accepting as she does that this particular case has its own facts.
23. For her part, Miss Nice's submissions can be summarised in the following way. True it is that these alleged offences occurred in 2001, but at least so far as the first European Arrest Warrant is concerned, it can be seen from the face of the warrant that a preliminary detention order and decision was being sought in 2005. The statement set out in the warrant that the view of the authorities then was that the appellant was "hiding" indicates that the authorities had sought to find him but could not; and indeed in one sense that must be right because of course he was by then no longer in Poland but had gone to the United Kingdom. But her point is that steps had been taken in 2005 and it can be inferred from the warrant itself that the authorities had not been able to find the appellant with a view to progressing the criminal matter. Then Miss Nice draws attention to the fact that these are serious matters, particularly at all events the matters the subject of the first European Arrest Warrant which, according to the allegations there made, involve the appellant, so it is said, being a leader of an armed criminal organisation and furthermore, amongst other things, engaging in drugs matters and in obtaining a very great deal of money by unlawful means. That, she says, is serious. Certainly it is the case on the appellant's own evidence that he seems to have come into contact with people who have Mafia connections, as he says; indeed it was through fear of them that he fled the country, albeit he makes clear that he himself had no involvement in leading a gang contrary to what is alleged by the prosecuting authorities.
24. Miss Nice draws particular attention to the finding of the District Judge in this regard, a finding which, as I see it, must be taken as a finding of fact, even though Miss Kopel at one stage sought to style it a matter of law. The ruling, I repeat, was by reference to the actions and inactions which had been relied upon, and in particular to the case of the appellant that he had been lulled into a false sense of security. The District Judge rejected that and he in terms stated that he did not find that the defendant had been lulled into a false sense of security. The position thus is on the evidence as found, and in my view which cannot now be challenged, that it cannot be said that there was some positive representation, whether express or implied, by the requesting state to the effect that the appellant would not be prosecuted and in respect of which he placed reliance and acted to his detriment. On the District Judge's findings of fact, as Miss Nice submits, that cannot be so. It is also of course understandable in such circumstances that Miss Nice places emphasis on authorities such as Gomes & Goodyer [2009] UKHL 21.
25. Finally, with regard to the decision in Kovac on which Miss Kopel has placed reliance, Miss Nice submits that that is a decision on its own facts. In particular, she pointed out that in that particular case the delay which the court found was entirely unexplained was a delay of the order of some 14 or 15 years, so quite different from the present case in that regard alone, although in other regards also. She submits that, in contrast with Kovac moreover, it could not be said that there was here a deliberate dragging of the feet of the kind illustrated by Kovac.
26. Having reflected on the arguments and reviewed the papers before me, I have come to the conclusion that Miss Nice's submissions are to be preferred and that this appeal must be dismissed. True it is that these matters go back to 2001. But in respect of the first warrant, which it has to be said would look to be much the most serious of the matters, steps had been taken by 2005 at a time by when the appellant had chosen to leave the country. I do not think any particular point in such circumstances arises by virtue of the fact that proceedings in respect of the second matter only first stated in 2010. I think I must respect, and I do respect, the judge's finding that the appellant had not been lulled into a false sense of security. Whilst he may not be a fugitive as such, it does appear to be a legitimate inference to draw that the Polish authorities in 2005 simply had been unable to find him. The delay here is of a far lesser order than occurred in Kovac and, furthermore, as I have indicated, some steps were sought to be taken into 2005, albeit unsuccessfully. I must have regard, of course, to the approach indicated in cases such as Gomes & Goodyer. It is also I think a matter to be borne in mind that what is charged here, certainly under the first warrant, are very serious matters. One must have respect to the purpose of extradition and to the comity that is to be expected to exist between member states, albeit that does not of course absolve the court from its responsibilities under the Act and from striking down an extradition request where the circumstances require.
27. Ultimately I do not think this case can even be described as a borderline case. It seems to me that the District Judge reached a conclusion which he was fully entitled to reach, indeed I have to say I think he was right to reach, and in the result I dismiss this appeal.
28. MR JUSTICE DAVIS: You have a legal representation order, do you?
29. MISS KOPEL: I do, my Lord, yes.
30. MR JUSTICE DAVIS: So there is nothing further you require from me then by way of order?
31. MISS KOPEL: Simply a request that there be detailed assessment of the applicant's legally aided costs.
32. MR JUSTICE DAVIS: The order will contain that.
33. Thank you both very much for your submissions.