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
		17 July 2011

1. MR JUSTICE IRWIN: This is a conjoined appeal in relation to two decisions by district judges of the Magistrates' Court both in relation to the appellant, Krzysztof Strazewski. I will call the two warrants European Arrest Warrant 1 and 2. In relation to European Arrest Warrant 1, a point is taken which is separate from any point taken on the second warrant, namely that EAW1 fails to comply with the requirements of the Extradition Act.
2. The background to this part of the appeal is as follows. The decision to extradite was taken by District Judge Tubbs on 1 August 2011 and in relation to a warrant which reads as follows:

"The circumstances of committing the offences.

Between 8 November and 9 November 2000 in the village of Przydatki Golaszewskie, the Kujawsko-Pomorskie Province, and in other yet unidentified places, for the purpose of appropriating someone else's property, acting jointly and in agreement with [and then nine other individuals are named] and other unidentified persons, he participated in the robbery of Adam Gagol, where the person traders used a pistol of unidentified brand and calibre, in such a manner that by using violence against Adam Gagol, namely holding him down, twisting his arms, putting a jacket over his head and holding the pistol at his head made him defenceless, and subsequently deprived of him of liberty for a dozen or so hours, detaining him in a car and a yet unidentified house and subsequently left him tied to a tree; then took in order to appropriate 494 Phillips TV sets with a value of PLN 239000, a Scania tractor [and the registration number is given] with a value of PLN 240000, a semi-trailer with [registration number given] and a value of 100,000 to the detriment of BRE Leasing sp.z. o.o, in Gdansk and a 'Nokia' mobile phone with a value of PLN 100,3200 German marks equivalent to PLN 6392.32 and PLN 500 to the detriment of 'WARTA' forwarding company from Gdynia, and 70 German marks equivalent to PLN 139.832 and PLN 800 to the detriment of Adam Gagol; the combined value of the stolen property equalled at least PLN 587932.15 i.e. the offence under article 280 paragraph 2 of the Penal Code and article 189 paragraph 1 of the Penal Code in connection with article 11 paragraph 2 and Article 64 paragraph 1 of the Penal Code."

3. It is conceded by Mr Williams that if the particulars given by the warrant stated that the appellant was present while the events described took place, then that would be sufficient to satisfy the obligation of particularity under the warrant.
4. His complaint is that the warrant does not specify the role played by the appellant, although it is accepted that the allegation is one of joint enterprise and/or conspiracy. Mr Williams says that the role which, in effect, makes him part of the joint enterprise, should have been specified and that without such particularity the warrant is defective and does not comply with the Extradition Act 2003.
5. On this issue I have been taken to a number of authorities. The first in time is Peter Von Der Pahlen v Government of Austria [2006] EWHC 1672 (Admin), a decision of the Divisional Court in which the lead judgment was given by Dyson LJ, as he then was. The warrant in that case related to three charges of sophisticated fraud. The potential extraditee in that case, Mr Von Der Pahlen, was a senior executive officer of the company which was the vehicle of the fraud alleged. It will be immediately evident that the facts of that case are widely different from that of a physical robbery and kidnap as in this case.
6. I have read the judgment of the court and note the reliance by Dyson LJ on what was said by Lord Hope of Craighead in the Office of King's Prosecutor, Brussels v Cando Armas and another [2005] UKHL 67 at paragraphs 23 and 24. Lord Hope was stipulating that a careful observance of the procedures that have been laid down are necessary under the Act. In the judgment of the court in that case the charges preferred against Mr Von Der Pahlen were too vague and too obscure to satisfy the requirements of section 2(4)(c) of the 2003 Act.
7. The degree of specificity and particularity has also been considered in a number of other cases. In Sandi v Craiova Court, Romania [2009] EWHC 3079 (Admin), the court in paragraph 28 picked up the principles set out in Von Der Pahlen and emphasised that so far as:

"... an accusation warrant is concerned, the terminology of section 2(4)(c) ... understandably requires more than a general indication of the alleged criminal conduct ... A significant level of particularisation is required to enable the person sought to be extradited to identify exactly what he might face at trial."

8. I also bear in mind the decision of Cranston J in Ektor v the National Prosecutor of Holland [2007] EWHC 3106 (Admin), although it is not necessary for me to quote from it.
9. Finally, I have been taken helpfully to the decision of Sanjay Dhar v the National Office of the Public Prosecution Service, the Netherlands [2012] EWHC 697 (Admin), a decision of King J, who, in paragraph 65, gives a slightly more liberal or broader approach to the requirements than that set out by Hickinbottom J in Sandi.
10. With those authorities in mind I turn to the wording here. Having given the matter considerable thought, it seems to me that the particulars contained in this arrest warrant just satisfy the requirements of law. One must not treat European Arrest Warrants as pleadings, or, indeed, as particulars of an indictment.
11. The nature of the offending here puts it into a very different category from sophisticated fraud. The position that arose in the case of Von Der Pahlen, where the allegation connected the potential extraditee to the offending only by reference to his office in the company, is a long way from the allegation here of participation in the robbery. It appears to me that this is an allegation not merely of, in broad terms, what English law would call joint enterprise, but of being an active, physical participant.
12. Both for the purposes of understanding whether any of the bars might arise under the Act and for the purpose of the general right to know what is incorporated in an allegation, that is sufficient, just. For that reason that part of the appeal fails.
13. I turn to the linked questions of time, oppression and injustice which are put forward on behalf of the appellant in relation to both the European Arrest Warrants he faces. There is a complicated chronology which it is necessary to set out so as to understand the way in which these two matters come before the court. The only satisfactory way of doing so is to set it out in sequence.
14. The offending covered by EAW1 is alleged to have taken place on 8 to 9 November 2000 and is a robbery. The first offence on EAW2 is also a robbery alleged to have taken place on 14 February 2001. The second offence on EAW2 is a burglary dated at 16 January 2003. The third is an attempted burglary of which the particulars are that an attempt was made or activities directed to building a tunnel so as to enter a bank in Poland between November 2002 and 23 April 2003. Although investigations were launched into the offending in respect of each warrant in Poland, there was insufficient evidence for the authorities to launch a prosecution against anyone and in each case through lack of evidence the matter was set aside.
15. The appellant left Poland, as I understand the chronology, during 2005 and thus cannot be accounted a fugitive.
16. Information provided by the Bydgoszcz Prosecutor in a document dated 24 January 2012 gives "the beginning of 2007" as the first information available on EAW2.
17. As a result of information provided by a co-defendant various matters took place. On 21 May 2002 the witness identified this appellant, it is said, from a photo ID procedure as being involved in the offending on EAW2.
18. On 4 to 5 June this appellant's nephew, Daniel Strazewski, was arrested on the charges mentioned in EAW2.
19. On 4 June there was an attempt to arrest this appellant at his Polish address. It is said by the Polish authorities that the appellant's daughter Marta was spoken to on that occasion and denied that she was in any contact with her father. That is in issue with her. She says in her witness statement dated 12 July 2012, which I have read de bene esse, that she did see police in 2007 but that was because the window in her house was broken. She told the police that she spoke to her parents in England. So there is a factual issue between the Polish authorities' version of the facts and the account given by the appellant's daughter.
20. On 28 June 2007 the further information provided by the Polish authority recites that the accusation of committing an offence as set out in EAW1 was presented to Krzysztof Strazewski. It seems unlikely that he was directly confronted since by that stage he was in the United Kingdom. However the prosecution authorities in relation to EAW1 go on to recite that on 2 August 2007 the appellant's Polish residence was searched. He was not present.
21. In March 2008 the prosecutorial authorities for EAW1 interrogated the daughter Marta and they were told that her father was in England where he had undertaken gainful employment.
22. It is on the basis principally of the information given to Daniel Strazewski, the co-defendant and nephew, in the year 2007, that Senior District Judge Riddle concluded that from that year at least the appellant must have been aware that the prosecutors in Poland were seeking his return. That, of course, would apply directly only to EAW2 not EAW1. I will deal later in this judgment with the status of the evidence available to Senior District Judge Riddle at the time of his decision.
23. Not later than March 2008, in relation to EAW1 the Polish prosecuting authorities were aware that the appellant was said to be in the United Kingdom. They did not have an address for him.
24. The complaint about delay in relation to EAW1 begins with that point in time. Mr Williams realistically concedes that while authorities have made efforts to locate a potential defendant for criminal proceedings, but have not done so, that they can hardly be criticised for not issuing an arrest warrant.
25. On 2 November 2010, so some two and a half years later, EAW1 was issued. There has been no evidence as to what took place between March 2008 and November 2010, if anything, to affect the progress of those proceedings.
26. The warrant was executed on 19 May 2011 and the appellant was arrested. The first hearing took place on 20 May 2011. In relation to EAW1 there can be no criticism of any time spent from the point when the appellant was arrested in this country.
27. In May matters were adjourned on EAW1 to June and in June adjourned to 2 August 2011.
28. On 17 June an existing national warrant was repealed and on 21 July a domestic warrant was issued in respect of offences now comprising EAW2.
29. In the meantime, on 2 August, the appellant was before District Judge Tubbs in relation to EAW1. He was represented. An adjournment for other matters was refused and extradition was then ordered uncontested.
30. A notice of appeal was filed in relation to EAW1 on 5 August 2011.
31. On 21 September 2011 EAW2 was issued. The appellant was arrested on 14 October. The first hearing on EAW2 was on 15 October and a date was set for 9 January. On 9 January both parties had requested an adjournment of the proceedings and that was adjourned to 14 February.
32. On 24 January 2012 further information was sent from Poland dealing with the interviews alleged to have taken place with the daughter in Poland. That gave rise to the decision by those representing the appellant to seek discussion with the appellant's daughter. That was not done until 7 February 2012, only a couple of weeks delay, but, nevertheless, all parties will have known that the definitive hearing was upcoming, on 13 February.
33. According to the affidavit deposed by Katy-Ellen Smart, now of Dalton Holmes Gray Solicitors but previously with Lawrence and Co, the solicitors representing the appellant, it was during the conference on 7 February that she was informed by the appellant that his daughter, Marta Strazewski, would be available to give evidence at the full hearing six days later on 13 February. The affidavit continued:

"Due to the time restraints and difficulties with interpreters we were unable to obtain a witness statement in the meantime."

34. The affidavit goes on to say this:

"I was informed by the appellant via e-mail on the evening before his full extradition hearing that Marta would not be able to attend the hearing due to work commitments. I received this e-mail in the morning of 13 February 2012."

35. On the day after the conference held by the appellant Collins J adjourned the EAW1 appeal to join that from EAW2. The hearing before the senior district judge took place a few days later on 13 February. The appellant gave evidence and, as already indicated, so did his nephew Daniel.
36. Mr Williams appearing for the appellant made an application to adjourn the hearing so that Marta, the appellant's daughter, could be called to give live evidence. That was refused. It was refused on the basis that the evidence of the daughter must always have been a relevant matter.
37. It may be that the senior district judge had not fully grasped that the issue about what the daughter had said was only given real shape and point when the further information came from Poland on 24 January.
38. On 27 February 2012 Senior District Judge Riddle delivered his judgment, ordering the extradition of the appellant on EAW2.
39. Just to complete the timetable, the notice of appeal in relation to EAW2 was entered on 1 March 2012 and those matters have come before me today.
40. Although the time point was not taken when the extradition was made on EAW1 by District Judge Tubbs and therefore Mr Stansfeld is entitled to take the point that it should not be raised afresh in an appeal, it seems to me that he was wise not to stand on that point with any vigour. Justice requires, where oppression is concerned that the court is able to look at the merits, particularly where, as in this case, identical, or nearly identical points are inevitably being raised on an appeal where they were taken below.
41. I deal with matters in turn. First, the question as to whether the senior district judge was wrong to refuse an adjournment.
42. It seems to me that even though he may have, no doubt despite every care, misunderstood that the stimulus to calling the witness only arose with the further information coming from Poland on 24 January, he would, nevertheless, have been fully entitled to refuse an adjournment after such a long and complex procedural history. Even if it was not evident from 2007, or from the issue of the European Arrest Warrants, and EAW2 in particular, that the evidence of the daughter was critical, it must have been clear from very soon after 24 January. It was clear at the time of the conference on 7 February. I intend no criticism of those representing the appellant, but it would have been possible, as Mr Stansfeld has said, to have a letter in Polish, to have some sort of draft statement, to have an attendance note on the daughter, to be able to flesh out in such a way that the court interpreter could have made clear to the senior district judge what it was the daughter might have added to the evidence before him.
43. But, in any event, his conclusion that the appellant must have been fully alive to the fact that the Polish authorities were interested in him from as far as ago as 2007 was based principally on the evidence of the nephew Daniel, rather than on the conversations with the daughter, although both point to the same end. It appears to me, therefore, that even if the decision on the adjournment had been taken on a clearer understanding of the timetable, the outcome would have been the same.
44. The principal submission in relation to both of these warrants is that by reason of a combination of matters, the passage of time and a number of matters to which I will turn, it will be oppressive to permit the extradition of the appellant. That has to be set against the background of his knowledge of the interest of the Polish authorities and the fact that there was a long-standing suspicion of his involvement.
45. The matters are helpfully summarised by Mr Williams in his skeleton argument at paragraph 50. In addition to the sheer passage of time, he relies upon the established and important therapeutic relationships of those who manage the appellant's mental health condition. Mr Williams was quite clear he was not seeking to say that there was a bar under section 25 of the Act relating to the appellant's mental health. It is an important factor to be set beside the rest, but it is not a section 25 argument.
46. Setting aside his mental health and his therapeutic relationship, he relies upon the appellant's substantial debts in this country, the fact that he has established family life and a private life here, the fact that since 2005 he has travelled to Poland, as Mr Williams suggests, "without difficulty and a full sense of security was established", unnecessary delay caused by the dilatory action of the Polish authorities and severely prejudiced in his ability to prepare a defence to the allegations. That last, of course, principally goes to the unjust category side of the test rather than oppression.
47. It seems to me that, doing the best he can, Mr Williams has still fallen short of showing that the district judge was in error in considering these matters to be less than sufficient to prevent extradition. There no doubt are important therapeutic relationships in the case but the appellant is not suffering from such a severe mental condition that he cannot be treated in Poland. He has been able to function quite well. It seems to me that that is, even as a backdrop, only a minor factor. The fact that he has substantial debts in this country, again can only be a minor factor set against the public interest in extradition, particularly for such very serious offences as arise in this case.
48. There is undoubtedly an established family life in this case, but that takes on an altogether different colour if one recognises that that for five years or so the appellant has realised that that was life lived under the shadow of serious potential pending criminal litigation in Poland. For the same reason it seems to me that it is not established that he has developed any false sense of security. That also was fully ventilated before the senior district judge who heard evidence from the appellant.
49. There was some delay by the Polish authorities which I have identified, in relation, particularly, to the period following March 2008 through to the issue of the warrants, but it seems to me that that on its own, or even when set alongside the other factors, is not so bad as to establish the requirement to refuse to extradite.
50. As Mr Stansfeld has pointed out, the case of La Torre [2007] EWHC 1370 (Admin) in the course of the judgment of Laws LJ, the Divisional Court made it plain that culpable delay on the part of the state requesting extradition must reach a very high level before it can itself play any important part in declining to extradite.
51. Finally, it seems to me that there is no specificity behind the rather generalised suggestion that this appellant is severely prejudiced in his ability to prepare a defence to the allegations. There too the fact that he has known of active interest on the part of the Polish authorities since at least 2007 plays its part. He has had since then to consider what, if any, steps need to be taken against the prospect of his prosecution.
52. For all those reasons, and with compliments to counsel for their help, this appeal fails.
53. MR WILLIAMS: My Lord, just two matters if I may. The first is a very minor correction. When your Lordship read the quote from the European Arrest Warrant in relation to the facts of the offence, my hearing certainly was that you read, after saying "nine individuals were named, "other identified" persons. That should have been "other unidentified" persons.
54. MR JUSTICE IRWIN: Yes, that is certainly what is there and what I intended to read so please.
55. MR WILLIAMS: It may be I misheard.
56. MR JUSTICE IRWIN: No, it is always wise to say.
57. MR WILLIAMS: And finally the usual application, please, for an assessment of my legally aided costs.
58. MR JUSTICE IRWIN: Yes. Yes, indeed. Thank you.
59. Mr Williams, in the course of the argument we have had an explanation as to some of the dates for the affidavit and this statement but not enough. So, please, pass the message back. I am not given to making these points, but they have become increasingly prevalent that so much arrives late it is not possible to do the preparation and lawyers need to realise that. Thank you both very much.