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
		4 October 2012

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Zani sitting in the Westminster Magistrates' Court given on 23 February 2012, whereby he was satisfied that the appellant should be extradited to Poland to face a charge there of assaulting a police officer.
2. The offence in question, if committed, was committed as long ago as 25 November 2002. It seems that there was a fracas in which this appellant was concerned, with others, between the group of which he was a member and a number of police officers. His case is, as I understand it, that he agrees that he did attack the police officer, but it was only in order to come to the defence of a friend who was being assaulted by the police officer in question. That was his defence. There is no indication in the papers before me as to what, if any, injuries were sustained by the police officer in question, and thus no indication as to how serious this assault was. All we know is that the charge which he faces is one which under Polish law provides for a maximum sentence of 3 years' imprisonment.
3. He was arrested on 25 November and was kept in custody until the next day. He says somewhere that he thought it was two days that he was kept in custody. But I get those dates from a letter which was sent at the request of Mr Stansfield who was dealing with the matter then, as he is now, from the Polish judge. That was a letter which was dated 24 January. It says 2011, but it must have been 2012. It followed a request of 18 January from Mr Stansfield. What that letter said was this:

"From the files kept in this case it appears that [the appellant] was arrested on 25.11.2002 at 00:10 and as he was under the influence of alcohol he was placed at a sobering-up station and then at a detainees' room of the City Police Headquarters in Rzeszów.

As it appears from the arrest report, [the appellant] did not appeal against the arrest and did not demand to contact a lawyer.

On 26.11.2002 after [he] was examined, he was presented with charges and was given a copy of information on suspect's rights and obligations. [He] confirmed the receipt of a copy of the decision on the presentation of charges and a copy of the information on suspect's rights and obligations in writing. Afterwards [he] was released on 26.11.2002 at 09:20 without being imposed non-custodial preventive measures [which presumably means there were no conditions attached to his release]."

4. The indictment was in due course filed at the court on 27 March 2003. By then the appellant had left Poland and had gone to Spain. At some stage he left Spain and came to this country. I do not think we have any direct evidence as to precisely when that was. Unfortunately he has not led a blameless life in this country. He has been convicted of a significant number of offences, none of which are in themselves of enormous seriousness, but obviously it cannot be said that he has kept himself out of trouble whilst being out of Poland. However, that perhaps is not directly relevant to the issues that are before me.
5. He asserted in his statement, and what was put before the District Judge, that he had been assaulted by the police when kept at the police station after his arrest. He had suffered injuries as a result of those assaults. He says that an agreement was reached with the relevant police officer in charge that when he was released from custody he would not be prosecuted for the assault on the police officer if he did not pursue any civil action against the police for the assaults that had taken place on him. He believed, therefore, that no proceedings were to be taken against him, and thus there was no reason for him to suspect that he was wanted, and accordingly he perfectly properly had left Poland.
6. That was raised as a defence under section 12, double jeopardy. It is based upon the assertion that he was told that he was not to be prosecuted, and certainly there is authority, if one approaches section 12 with a slightly wider form that is strictly concerned with autrefois acquit and convict, that it would have been open to a court in this country, if satisfied that such an agreement had been made by a police officer who had clearly the power or was believed to have the power to do it, then it might be an abuse of process to prosecute. However, the problem with that is that it was raised before the District Judge and was rejected. What the District Judge did was to take into account, as he was clearly entitled to do, the letter from the Polish judge. Mr Brownhill makes the point that all the judge was doing was relying on what appeared to be a police file. But the important part of that was that the appellant was presented with the charges and given a copy of information on suspects' rights and obligations when he left the police station. That is clearly inconsistent with the evidence given by the appellant himself that nothing was given to him which indicated that he was to be charged because of the agreement that he had reached with the police.
7. It seems to me that the District Judge was clearly entitled to reject that evidence from the appellant. He clearly did reject it. In those circumstances, as it seems to me, the argument based on section 12 can get nowhere. To be fair to Mr Brownhill, he recognised that he was in difficulty in pursuing it with any vigour, and it is not an argument which can avail the appellant.
8. That leaves the argument based on section 14, namely that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the offence. Mr Brownhill does not rely on oppression, and properly does not, but he does submit that it would be unjust because of the difficulties that would be created in the appellant being able to defend the charge were he to be extradited to Poland.
9. Unfortunately, although it is clear from the language that is used by the District Judge that it was asserted that in the circumstances the appellant was a fugitive from justice in that he was aware that there were charges to be laid against him, nonetheless the District Judge did not make any specific finding that that was the position. However, what he did say in his judgment is, in my judgment, consistent with him having accepted that he was indeed a fugitive. What he records is that the prosecuting authorities asserted that the appellant had not appeared at court trials and was hiding from the justice system, and that the EAW was issued after the police learnt that the requested person was staying outside Poland, and that until he was arrested in the UK he continued to be a fugitive from Polish authorities. He then stated:

"The requested person has failed to satisfy me that the extradition is barred by reason of an alleged abuse of process and therefore this challenge fails."

10. It may be said that in the circumstances, since the District Judge accepted what was said in the letter from the Polish judge, that that is consistent only with him knowing that there were charges to be preferred, having in those circumstances deliberately left Poland and thus being a fugitive. However, when considering section 14 and "unjust", he went into the issue as to whether it would be possible for him to defend the charge despite the lapse of time. It may be said that he did not need to do that if persuaded that the appellant was a fugitive, because it is clear from the decision of the House of Lords in Kakis v the Government of Cyprus [1978] 1 WLR 779 that if an individual is a fugitive, then he cannot normally rely upon "unjust" or "oppressive" because he has brought upon himself the delay in dealing with it.
11. So I think in the circumstances it would be wrong to assume that the District Judge was satisfied that he was indeed a fugitive, albeit it is likely that that is the position if one follows the Polish judge's letter. That is why it is, in my view, essential that if the question of whether an individual is a fugitive is raised, the District Judge should make a finding whether that is indeed in his view established in any given case.
12. What the District Judge decided was that, so far as potential witnesses were concerned, he had been in touch with the girlfriend of one of the men he was with on the evening, and this man and another witness were then currently serving terms of imprisonment. So they can be found. The whereabouts of another man in the group apparently is not at the moment known. He himself, as the District Judge found, clearly had a good recollection of the events in question, and he was able to trace at least two of the witnesses who he thought might help him. Whether or not they in due course would help him is of course nothing to the point because their attitude may well have been the same whenever the trial was to take place.
13. Mr Brownhill relies particularly on the absence of any medical evidence which otherwise might have been available to support his contention that he had been assaulted and suffered injury whilst at the police station. We do not know, of course, whether records of any sort are kept at the police station because that particular issue has not been gone into yet. Nor do we know whether there would be any medical evidence that had to be called to the police station to deal with him. One suspects not because he certainly does not say that that is the case.
14. So, submits Mr Brownhill, he will not be able to establish before the Polish court his contention that it would be an abuse to proceed to prosecute him in the light of what happened at the police station and the upshot of that assault.
15. When considering the question of "unjust", which of course relates to the ability to have a fair trial, one must take into account the decision of higher courts, namely the House of Lords and the Court of Appeal, in deciding the correct approach that this court should adopt. The first case which is material in this regard is Gomes v the Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, a decision from the House of Lords. The judgment of the Committee was given by Lord Brown. He said this in paragraph 35 on page 1050:

"Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial — whether by an abuse of process jurisdiction like ours or in some other way. Insofar as Keene LJ's judgment in Lisowski v Regional Court of Bialystok (Poland) [2006] EWHC 3227 (Admin) suggests the contrary, it should not be followed."

16. Following that, in Dare v Principal Court of Santa Cruz De Tenerife [2010] EWHC 366 (Admin), Elias LJ in the Divisional Court said this:

"19. I emphasise that the question is whether the extradition is unjust and not whether it would no longer be possible to have a just trial. The distinction is emphasised by Lord Brown in the Gomes case to which I have made reference. As Lord Brown pointed out at paragraph 35 in that case, it should be assumed that any Council of Europe country will be capable of protecting an accused against an unjust trial; they are signatories to the European Convention and will be bound by Article 6. They are in a better position then we are, with the very limited material before us, to determine whether a fair trial is possible or not. Lord Brown emphasised ... that the crucial question is whether the court of the requesting state would be bound to conclude on the facts that a fair trial is impossible. In those exceptional circumstances, but only then, it would be wrong to extradite an accused."

17. It seems to me apparent that that is not the position here. Clearly, on the findings of the District Judge and looking at the matter generally, despite the fact that it is now ten years ago that the alleged offence was committed, it would be possible for the appellant to have a fair trial, and it is right that this court should trust the Polish court to consider all material matters and so to ensure that any trial that the appellant has is indeed fair. They will be able to know whether he has actually been able to identify and find any material witnesses. That is a factor that they will be able to take into account, and equally they will have much greater information on the full circumstances of what is said to have happened at the police station, and will have the power of course to require the production of any relevant documentation and any relevant material which goes to what happened at the police station.
18. In those circumstances, and acting on the assumption that it is not established that the appellant was indeed a fugitive from justice, I am satisfied that in all the circumstances it would not be unjust for him to be extradited as requested. So his section 14 ground also fails.
19. Accordingly, this appeal must be dismissed.
20. MR BROWNHILL: My Lord, thank you. Can I make one application for an assessment of costs?
21. MR JUSTICE COLLINS: Of course. The usual legal aid order.