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
		21 July 2011

1. MR JUSTICE MITTING: I have heard the two appeals of Zacharski and Wierzbicki together because they raise a common question of some significance. Before I turn to that question, I set out the brief details of the extradition procedures and then apply them to each appellant.
2. In Zacharksi's case, a European Arrest Warrant was issued by the District Court of Legnica in Poland on 13 February 2010, it was certified by SOCA on 28 February 2010 and the appellant was arrested under the warrant on 28 February 2011. He appeared before the district judge at the City of Westminster Magistrates' Court on 1 March 2011. After various adjournments, the extradition hearing proper took place on 10 May 2011, at the end of which, the district judge ordered his extradition.
3. The issues raised before me were raised before the district judge. He dealt with them shortly:

"No written ruling is necessary in this case. I accept all that Miss Soule says in her response to Mr Henley's written submissions. None of the technical points are valid and some are nonsense".

4. In the case of Wierzbicki, a European Arrest Warrant was issued at the Koszalin District Court in Poland on 30 August 2010, it was certified by SOCA on 1 February 2011 and the appellant was arrested pursuant to it on 14 March 2011. After various adjournments the final extradition hearing took place before District Judge Tubbs on 27 April 2011. On 19 May 2011, she gave judgment and ordered extradition. She gave a written judgment in which she dealt with the issues raised in this appeal at somewhat greater length than did her brother judge in Zacharski's case:

"I do not accept the defence submission as being correct. S. 2 of the Act does not require an EAW to be exclusively an accusation or exclusively a conviction warrant. Mr Henley was unable to point to any reason as to why such an exclusivity requirement should be 'read into' Section 2. The authorities to which I am referred did not address the question of whether a mixed warrant, in which it is clear whether each matter is a conviction or an accusation, can be valid and cannot properly be read as doing so. That such an issue has not been raised or decided in the eight years of a much-examined statue being in force does not, of course, necessarily mean it is without merit. Many EAWs contain both accusation and conviction matters and many such warrants have come before the High Court on appeals on other points. In none of these cases did the existence of both accusation and conviction matters within the same warrant cause comment or concern in the High Court."

5. She then cited a particular case in which a mixed warrant had been dealt with.
6. In each case there was a secondary argument about the clarity of the warrants to which I will return at the end of this judgment. The question of principle which arises can be simply posed: Can a warrant validly be issued, which is both an accusation and a conviction warrant? The answer to that question is primarily to be sought in the language of section 2 of the Extradition Act 2003, which provides relevantly:

"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains -

"(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or.

"(b) the statement referred to in subsection (5) and the information referred to in subsection (6)."

7. Mr Manjit Singh Gill, QC, for the appellant Zacharksi, submits that the draftsman could easily have included the words "or both" at the end of subsection (2) to put the matter beyond argument, if it had in fact been intended that a warrant could be issued which contained both elements of accusation and conviction. He submits that the use of the unqualified word "or" between subsections (a) and (b) indicates that they are alternatives and cannot be aggregated. He also submits that a joint warrant creates procedural problems for domestic courts which should drive me to the conclusion for which he contends. I can deal with the procedural problems rapidly because in the course of argument, although he has identified the two streams of decision making -- which must be followed in a conviction and in an accusation case and they are of course separate -- he has not persuaded me that they give rise to any greater difficulty in a case in which there is a joint warrant as in a case in which there are two separate warrants; one conviction and one accusation. The problems arise in either case. Provided they are distinctly addressed, it does not matter in which form the document, which sets off the process, appears.
8. I do not accept Mr Gill's submission that as a matter of language Section (2) requires that a warrant is either a conviction or an accusation warrant. I can explain my reasons briefly, and then refer to the only authority, directly in point.
9. What subsection (2) does is to identify what an arrest warrant is. It is a document issued by a judicial authority which contains the statement referred to in subsection (3) and the information referred to in subsection (4): an accusation case; or, a statement referred to in subsection (5) and information referred to in subsection (6): a conviction case. A warrant which contains neither the information set out in subsections (3) and (4) or that set out in subsections (5) and (6) is not an arrest warrant. But if it contains the information set out in subsections (3) and (4), or the information set out in subsections (5) and (6), it is an arrest warrant.
10. As a matter of language therefore, a warrant which contains both the information set out in subsections (3) and (4), and the information set out in subsections (5) and (6), is an arrest warrant because it contains the information required to be contained in it by subsection (2). For Mr Gill's point to be right as a matter of language, subsection (2) would have to provide that a warrant must not contain both the information set out in subsections (3) and (4) and the information set out in subsections (5) and (6).
11. The issue arose -- and was decided by Lloyd Jones J in Ciesielski v District Court in Kalisz, Poland [2011] EWHC 1503 (Admin), in which he dealt with the submission that as a matter of language, subsection (2), did not permit a joint warrant:

"It is certainly correct that the statute draws this important distinction [between conviction and accusation]. However, I am unable to accept that section 2 imposes a requirement that an extradition warrant be issued either in respect of an accusation or a conviction matter and I am unable to accept the submission that it is not possible to contain both in the same warrant. There is nothing in the wording of subsection (2) which leads to that conclusion. The use of the word "or" simply makes clear that separate requirements exist for accusation and conviction cases and there is nothing here to suggest that separate warrants would have to be issued in respect of accusation and conviction cases."

12. He also relied upon Article 8 of the Framework Decision. It provides:

"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annexe:

"(a) the identity and nationality of the requested person;

"(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

"(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

"(d) the nature and legal classification of the offence, particularly with respect of Article 2;

"(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

"(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

"(g) if possible other consequences of the offence."

13. The form in the Annexe is apt to cover either an accusation case, or a conviction case, or both. A single form is prescribed, the form serves all three purposes.
14. In construing section 2 (2), I am required to have in mind two principles expounded by Lord Bingham and Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67. Lord Bingham at paragraph 8 said:

"Part I of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part I to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."

My Lord Hope at paragraph 24 said:

"But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part I of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that. where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."

He identified two particular matters which would result in an order for discharge in paragraph 28:

"...If the warrant does not conform to the requirements set out in section 2, it will not be a Part I warrant within the meaning of that section and Part I of the Act will not apply to it. And if the offence that it describes is not an extradition offence within the meaning of section 64 or 65, as the case may be, the judge must order the person's discharge: section 10(3). In either of these two situations there is no way back for the judicial authority of a category 1 territory..."

15. As regards Lord Hope's qualification, there is in fact no relevant difference between the requirements of Article 8 and the Annexe to the Decision and the provisions of section 2 (2). The directing observation which I must apply is therefore that of Lord Bingham in paragraph 8. Construing as I do, section 2(2) in the light of Article 8 and the Annexe to it, I can find nothing in the Decision which requires that section 2(2) be construed so as to prohibit the issuing of a joint warrant. I agree with Lloyd Jones's J observations Ciesielski at paragraph 20 where he drew attention to the fact that:

"...Article 8 of the Framework Decision, as Mr Henley accepts, does not distinguish in the manner provided for in section 2 of the Act between accusation and conviction cases. Moreover, the pro forma warrant which is annexed to the Framework Decision contains nothing which would appear to support the view that accusation and conviction offences may not be combined in the same warrant and Mr Henley accepts that they may be..."

I share his conclusion that there is no principled objection to a warrant containing both a conviction and an accusation matter.

16. Accordingly, and for those reasons, I reject Mr Gill's primary submission, supported as it was by Mr Henley, for Wierzbicki.
17. I have not found it necessary to review the other cases cited by Mr Gill. He draws some comfort from the fact that in none of them has any judge in any court considered the possibility that a warrant might contain both an accusation and a conviction matter. The simple answer to that is that the question did not arise for decision in any case other than that of Ciesielski. Accordingly, the absence of any reference to the possibility of a joint warrant is unsurprising.
18. Both Mr Gill and Mr Henley make submissions about the clarity of the warrants and their respective cases. In the case of Zacharski, he submits that it is far from clear whether individual offences identified in the warrant are accusation or conviction cases. I could set out at length the English translation of the warrant in his case. No useful purpose would be served by it. I am satisfied that, read as a whole, the first five sections of the warrant, (a) to (e), are perfectly clear. They make it plain that in two cases identified by numbers 211/8 and 306/8, the appellant is required to stand trial for offences of which he has not yet been convicted and may be remanded in custody for 14 days pending trial and that in the third, 829/05, he has already been convicted and sentenced to one year's deprivation of freedom. The warrant is entirely clear.
19. So, too, is the warrant in the case of Wierzbicki. It deals with two sets of court proceedings. In 892/08, the appellant is accused of an offence of robbery and two driving offences. In a separate case, 1271/07, he has already been convicted -- probably at the conclusion of his trial in his absence -- of a single offence of assault for which he has been sentenced to one year's imprisonment. Again, in his case, the warrant is entirely clear.
20. Those being the only grounds upon which the decisions of the district judges are challenged, these appeals are dismissed.
21. Mr Gill, the question that you raise is of general importance, even though I don't think that you will get anywhere in arguing it, but that is not the test as I understand it at this stage.
22. MR GILL: Well, the test is two-fold: One, your Lordship should consider whether it is a point of general importance and, second, you should decide whether you would grant permission to appeal on it or not.
23. MR JUSTICE MITTING: I certainly won't grant permission to appeal on it because I don't think you have realistic prospects of success.
24. MR GILL: I understand.
25. MR JUSTICE MITTING: The point is one of importance which is I think apparent from the number of cases where this has gone through on the nod over the years and there may therefore be some merit in having it clarified above the level of this court.
26. MR GILL: My Lord, I would therefore invite the court to proceed on that basis. If your Lordship were to make a ruling in those terms, the effect would be that I would be able to ask the Supreme Court whether they were interested in the court. That is essentially it.
27. MR JUSTICE MITTING: Yes.
28. MR GILL: In order to do that, I would also need a representation order, an extension of the representation order in order to enable me to file that application with the Supreme Court.
29. MR JUSTICE MITTING: If I certify, you will have that.
30. MR GILL: I am grateful. I would ask you to certify, bearing in mind the test which is in section 32, I think it is. Certified there is a point of law of general public importance which, as your Lordship has already said, there is some significance, to quote the opening words of the judgment.
31. MR JUSTICE MITTING: Yes.
32. MR GILL: I would therefore invite the court to give that certification -- the court has already indicated it would refuse permission -- and ask for a representation order to be extended. I would also ask that the current representation order be amended to permit appearance by leading counsel because although there is a representation order to permit appearance by junior counsel, it doesn't extend to leading counsel.
33. MR JUSTICE MITTING: Do I do that retrospectively?
34. MR GILL: You can do that as of today's date, certainly.
35. MR JUSTICE MITTING: I think it is appropriate that there should be a certificate for leading counsel in the case of Zacharksi.
36. Do either of you have anything to say about certification?
37. MR GILL: No.
38. MISS TYLER: No.
39. MR JUSTICE MITTING: Mr Henley?
40. MR HENLEY: I would also ask that obviously that the certificate for leading counsel be extended to Wierzbicki because clearly they are going to be run together.
41. MR JUSTICE MITTING: Well it is not a case, frankly, which justifies the employment of two counsel. They are not cases which justify the employment of two counsel at an appellate stage. It happens that -- for reasons I need not go into, two counsel appeared here today -- but from here on it is not a justified use of taxpayers' money to have two of you arguing the matter in the Supreme Court.
42. MR HENLEY: I understand. I wasn't actually saying that for leading counsel for -- I have probably made the wrong submission, indeed, because I wasn't envisaging anybody else other than Mr Gill representing Mr Wierzbicki, it was just that so he could also represent Mr Wierzbicki so we didn't have to have this two separate counsel, as it were.
43. MR JUSTICE MITTING: Exactly. The old days, in which junior counsel had the enjoyable and interesting experience of sitting in leading counsel making submissions to their lordships have now gone in taxpayer funded cases, where it is not needed.
44. MR HENLEY: So be it. The only other thing that I would raise with you, my Lord, and it is just simply arising from the judgment of course, the district judge was Caroline Tubbs.
45. MR JUSTICE MITTING: Caroline Tubbs, you are quite right. I will correct that in the transcript.
46. MR HENLEY: Thank you.
47. MR JUSTICE MITTING: Thank you.
48. Mr Gill, can I ask you to formulate the question please? It only arises out of the construction of section 2(2) and no other issue.
49. MR GILL: My Lord, the question is as straightforward as the way in which your Lordship put it, which is: can a warrant, within the meaning of section 2(2) validly be issued, which is both an accusation and a conviction warrant? That is slightly clumsy. Which subclause may have to be moved a bit further forward. Where your Lordship put it was, can a warrant validly be issued which is both an accusation order and a conviction warrant.
50. MR JUSTICE MITTING: The question I propose to certify is "can a European arrest warrant validly be issued for the purposes of Section 2(2) of the Extradition Act 2003 which is both an accusation and a conviction warrant".
51. MR GILL: Yes, I am grateful. My Lord, I express to your Lordship formally, it needs to say, "permission to appeal is, however, refused".
52. MR JUSTICE MITTING: Permission to appeal is refused. I certify that question by granting a representation order for leading counsel in both cases to file an application for permission to appeal to the Supreme Court. As far as the appeal to this court is concerned, I extend the representation order in Zacharksi's case to include leading counsel.