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
		2 May 2012

1. MR JUSTICE MITTING: Mr Cooper, who appears for the appellant for the first time today and at very short notice, applies on his behalf for an adjournment of his appeal against the order of the district judge that he be extradited to Poland on an accusation European Arrest Warrant issued by the Regional Court of Lodz on 9 March 2011. His extradition is sought to stand trial for drug trafficking offences, said to have been committed between October 2003 and 5 May 2004.
2. The warrant was certified by SOCA on 30 May 2011. He was arrested on 5 June 2011. There was an initial hearing at which he was represented by the duty solicitor. He was released on bail, but failed to surrender to bail. He was arrested and brought before the court on 10 January 2012 and remanded in custody, where he remains.
3. On 29 February 2012, his extradition was ordered by District Judge Coleman. The only issue raised at the extradition hearing which was supported by the appellant's evidence was that he had not committed the offences to which the warrant related. That, as any extradition practitioner knows, is not a ground upon which extradition can be resisted.
4. He then appealed in time against the district judge's order. The only grounds given in his Notice of Appeal were the following:

"Article 3 of the Human Rights Convention protects me from inhumane treatment and Polish prisons do not provide living space in compliance with EU standards. It is too overcrowded. Therefore I wish to call upon Article 3 to appeal against extradition."

5. Those grounds are familiar to any judge who has heard Polish extradition cases in recent years. I suspect, although do not know, that they originated from a fellow detainee in the prison in which the appellant is detained. They are wholly unsupported. As has been said repeatedly, they afford no ground on which to resist extradition.
6. Mr Cooper states today, for the first time in any document lodged in connection with this appeal, that the appellant has a further ground of challenge, that extradition would be barred by his right to respect for family and private life under Article 8. This ground, too, is familiar. It has not been fully elaborated, but it seems that he has a family in the United Kingdom, a common enough occurrence in Polish cases of some antiquity. As of today, the appellant has no material upon which he could possibly challenge the district judge's order.
7. Because he was acting in person, on 8 March 2012 Ouseley J directed that the appellant was to be produced in the interests of justice, and a Polish interpreter was to be warned. He directed that the Crown Prosecution Service should produce the European Arrest Warrant and a note of the judgment by 12 March, and serve both on the appellant. The CPS complied with that paragraph of the order. The appellant was indeed produced today, and a Polish interpreter is present.
8. Meanwhile, the appellant contacted solicitors, Steel & Shamash. They did not come on record in this appeal but on 17 April 2012 emailed the Administrative Court Office in the following terms:

"We write as a matter of courtesy to bring you up to date with developments in this case.

Firstly, we are arranging an appointment to see Mr Gogolinski either Thursday of this week or Monday of next week. In addition, we have identified a Polish lawyer, President of the Polish Lawyers Association, who has agreed to provide a report or evidence in support of our client's appeal.

We hope to update you further with progress in this matter next week."

9. That produced a standard formal acknowledgement from the Administrative Court Office acknowledging receipt of the email, stating that it would be treated as incoming correspondence and would be dealt with within the usual time scales. The email went on to state:

"If you have used this address to submit a skeleton argument, it has been sent to the wrong address and you must resend it immediately," and then gave the address of the office.

10. That prompted a response, or perhaps coincided with a further email from Steel & Shamash in these terms on 19 April 2012:

"We attended our client today to take further instructions and to seek his agreement to instruct an expert.

Our client expressed concern that we would not be ready in time for the contested appeal hearing, and we informed him we had not been given a date. He said that he had received a letter, dated some time in mid March suggesting this matter was listed for final hearing on 2 May 2012. Is this correct or is our client mistaken?

We can say that we will not be ready by that time, not least because we will need to obtain prior authority to instruct an expert, thereafter, instruct him by email, and once received and if appropriate, serve his report on the Crown Prosecution Service and yourselves. In addition, this is a matter in which it would appear that the only evidence against our client comes from what might be loosely described as two co conspirators in the criminal enterprise for which extradition is sought and whose evidence may be less than reliable. It may be that given the passage of time between these two men notifying the Polish authorities of our client's alleged involvement in their criminal enterprise and the failure to arrest our client whilst resident in Poland in the intervening period, that in addition to delay our client may have a right to a fair trial argument, and this is something that we can only explore once further inquires have been made with the assistance of the Head of the Polish Bar Association.

We trust the above is of assistance and look forward to hearing from you."

11. There is no record of any response on file. By further email today, addressed to me, Steel & Shamash said the following:

"We understand that this matter is listed for Hearing today. Unfortunately, as has been confirmed this morning in a telephone call with staff of the Administrative Court Office, we were not made aware of today's Hearing.

We were granted a Representation Order on 2 April 2012. It would appear that the written notification of the Listing was sent out to the Defendant before the Representation Order was granted. We have received no further contact from the Administrative Court since.

We should say that Mr Gogolinski informed us that he thought that the matter had been listed today, and that we emailed the Administrative Court Office on 19 April 2012 to clarify the position, and also, if necessary, to seek a further adjournment of the Hearing. We enclose a copy of that email. We fear that the email may not have been sent but attach a copy for your information. We also enclose earlier email correspondence dated 17 April 2012 for your information.

We confirm that we have now applied for prior authority to instruct the Head of the Polish Bar, Mariusz Paplaczyk, to provide a report in respect of the matters raised in our email.

In the circumstances, we humbly apologise for our part in this misunderstanding and respectfully request an adjournment of the matter until a date towards the end of May, to enable us to obtain the expert's report and, in the light of the content, advise Mr Gogolinski as to the merits of continuing with his appeal.

We apologise for any inconvenience or waste of court time."

12. That sequence of correspondence and events satisfies me of the following. The appellant appealed in person. He gave a ground of appeal which stood and stands no prospect of success and which now does not appear to be pursued. He instructed solicitors on 2 April 2012. They did not come on record, as was their duty if they were acting for him. Instead, a fortnight later, they wrote to the Administrative Court and received an immediate response. They drafted, but may well not have sent, an email dated 19 April 2012. If it had been sent, I have no reason to believe that the office would not have responded to it. Despite knowing that the hearing of this appeal was fixed for today, they did not attend and did not instruct counsel until they instructed Mr Cooper at 1.15 pm this afternoon.
13. If I had thought that there was any arguable merit in the appellant's appeal, I would have adjourned the appeal and required the solicitors to attend to show cause why they should not pay the costs thrown away. But nothing that has been said to me and nothing that I have read in the documents persuades me that this appellant has an arguable ground of appeal.
14. As to the ground upon which he resisted extradition before the district judge, that is self-evidently hopeless. It is not a bar to extradition that you are not guilty of the offence with which you are charged. As to the claim that prison conditions would infringe Article 3, that is a commonplace assertion and is wholly unsupported and could not bar extradition. As to family circumstances, I have not been told anything which would persuade me that this is a case out of the ordinary or that there is any reason why this appellant should not return to Poland to stand trial for the offence of which he is accused, notwithstanding that he has, and would for a short time at least if he is innocent, to leave them behind in England.
15. As to accusations about the Polish trial process, it is settled law that in extradition cases this court looks to the law of the country to which the individual will be extradited. If the law guarantees a fair trial, as Polish law does, then issues such as those sought to be raised by the appellant about the doubtful nature of the evidence that may be deployed against him will be dealt with by the court that tries him. Even if that were not to be the law and evidence of Polish criminal practice is admissible to call into question the manner in which Polish courts conduct criminal trials, there is simply no basis upon which it can be anticipated now that the President of the Polish Bar would produce a report which said that the appellant would receive in Poland a flagrantly unfair trial such that it would put the United Kingdom in breach of its obligations to him under Article 6 if he were to be extradited.
16. I remind myself that the Strasbourg court has only once held that to deport an individual to a country in which he would stand trial would result in the infringement by the United Kingdom of an individual's rights under Article 6, the recent and notorious case of Abu Qatada. In only one instance of which I am aware has a British court held that the extradition of an individual to stand trial in a foreign country (I think from memory Burundi) would put the United Kingdom in breach of an individual's rights under Article 6.
17. For those reasons this appeal, even if further material were assembled to support it, stands no prospect of success. I am satisfied that I can on the material that I have justly dismiss it. I refuse the adjournment. I dismiss the appeal.