England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2012

Mr Justice Irwin:

1. This case is an appeal from the order for extradition to Poland of this Appellant, handed down by Senior District Judge Riddle sitting at the Westminster Magistrates' Court on 27 February 2012. Extradition was ordered pursuant to the European Arrest Warrant [EAW] issued by Judge Maria Derela, of the Regional Court in Kielce, Poland on 4 August 2011. Poland is a Category 1 territory pursuant to Section 1 of the Extradition Act 2003 ["the Act"]. Hence Part 1 of the Act applies.
2. The Appellant was arrested pursuant to the EAW on 5 October 2011 and brought before the Magistrates' Court on the same day. An extradition hearing on 6 January 2012 was adjourned for argument to determine the admissibility of evidence sought to be brought before the court on behalf of the Appellant, and in relation to submissions on Article 6 of the European Convention of Human Rights [ECHR]. Argument was heard on 13 February and the judgment handed down on 27 February as stated above.
3. The appeal is pursued on the basis of two connected points. Firstly, it is said that the Senior District Judge was wrong not to admit in evidence witness statements from the Appellant and his partner and co-defendant in the Polish proceedings Ewa Kozik, with various supporting documents. These are said to be relevant and admissible in relation to the Appellant's submission, pursuant to Section 21 of the Act, that his rights under Article 6 of the ECHR would be compromised by his return to Poland. The second ground of appeal is that the Senior District Judge was wrong to reject the claim under Section 21, based on the infringement of the Appellant's Article 6 rights.
4. It is clear that the Senior District Judge read the statements and supporting documentation before giving his judgment ruling them inadmissible. At the conclusion of submissions to me, it was agreed that I too should read them de bene esse before giving judgment in the appeal and I confirm that I have done so.

The Background in Poland

5. The EAW was issued on 4 August 2011 and certified by the Serious Organised Crime Agency ["SOCA"] on 18 September 2011. Extradition of the Appellant is sought for the purpose of executing a one year sentence of imprisonment, imposed following his conviction for the offence of cruelty to horses committed between January 2006 and 15 March 2006 in Kornica and Sedow, Poland. The offences were contrary to Section 1 of the "Act on Animal Protection 1997".
6. The Appellant was convicted in his presence of the offence, in a decision of the District Court in Konskie, judgment being entered against him on 6 January 2009.
7. The Appellant appealed against that decision and the prosecutor appealed against the sentence, which was initially suspended, rather than an immediate sentence of imprisonment. The appeals were heard in the District Court in Kielce in the IX Criminal and Appellate Faculty. By an order dated 31 March 2010, the Appellate Court upheld the Appellant's conviction and repealed the suspension element to his sentence.
8. The Appellant himself describes in his first witness statement that he mounted a subsequent appeal to the Polish Supreme Court, which was dismissed in January 2011.
9. In the course of his witness statements and the other material sought to be introduced and confirmed in oral evidence, the Appellant suggests a number of matters relating to the conviction. These include a suggestion that there was a grudge against him on the part of local police who failed to achieve a bribe from him; that his horses were mysteriously injured or rendered sick by poisoning by others; that the prosecution for the cruelty to horses was mounted by two local animal rights activists, one of whom was in a personal relationship with a local police officer; that the local police refused to investigate his allegations about the injuries to his horses; that his court appointed lawyer was ineffectual and failed to represent him (and his partner) properly; that it was useless to go to a different lawyer because no better could be expected from a different legal representative; that the trial judge wrongly permitted public demonstrations and TV interest in the case to affect the conduct of the hearing; that he was not given adequate notice of expert evidence to be called, nor given any, or any adequate translations of the evidence; that he was denied the right to see and examine the horses in question; that rather than being given written translations of the expert evidence in the case he had to reply upon oral translation from an interpreter. It is clear that the Appellant was able to articulate his complaints and sought to raise them in the appellate courts in Poland.

The Judgment of the Senior District Judge

10. Since the only complaint about the decision in the Magistrates' Court is in relation to Section 21 of the Act, I will focus on that issue. SDJ Riddle recited the application to admit the evidence, and observed that, in argument, the requesting authority had objected stating that this would amount to a review of the trial process. If the evidence was to be explored, then they too would need time to provide further evidence. SDJ Riddle decided that there should be a preliminary determination of the admissibility of the Appellant's evidence and consequent submissions, pursuant to Section 21.
11. SDJ Riddle noted that the Appellant accepted before him that, in order successfully to rely upon Article 6 of the Convention, he was required to show that he had suffered or risked suffering a "flagrant denial of his rights" in the receiving state: see R (Ullah) –v- Special Adjudicator [2004] AC 323. The Senior District Judge then reviewed the various allegations as summarised above. He observed that the Appellant sought to bring those arguments within the ambit of his Article 6 Convention Rights.
12. SDJ Riddle then summarised the argument of the requesting judicial authority. He was referred by Mr Stansfeld to the judgment of Toulson LJ in R (Sobczak)-v- Judicial Authority in Poland [2011] EWHC 284. He noted the submissions by the requesting authority that the task of reviewing the safety of the Appellant's conviction was contrary to the principles of the Framework Decision and was far beyond the jurisdiction of the court. SDJ Riddle noted that the Appellant had exercised his appeal rights, albeit unsuccessfully, and that he may have a further avenue for appeal to the European Court of Human Rights. Further or in the alternative, the requesting authority argued that, even taken at its highest, the Appellant's complaints fell far short of establishing that there was a "flagrant denial of his rights to a fair trial".
13. SDJ Riddle concluded that the Appellant's case was not properly arguable, and that he should not be permitted to adduce evidence at the extradition hearing. He ruled that he had the power, and was entitled, to prevent the Appellant from raising evidence in the way sought. He noted that the implication of the submissions on behalf of the Appellant was to involve the Magistrates' Court in what would be:

"…….an almost impossible task. I am asked to accept the evidence of this Defendant and possibly other witnesses to decide what happened at trial. To the extent that his account is disputed then I would need to hear the rival account and decide between the two. I would then have to consider the significance of the decision of the Polish Appeal Court. The trial would need to be assessed through cosmopolitan eyes and have an understanding of Polish law and practice. Having found the facts it would be necessary to form an assessment as to whether they amount to a flagrant breach of Article 6. This court, a court of first instance, is simply not equipped to undertake the task. That is best left to the Appellate courts and in this case to the European Court of Human Rights. This is not simply a pragmatic approach, it is also a principled approach. The burden is on the Defendant to demonstrate a breach of Article 6. He must do so against the presumptions that apply in favour of a requesting state that is a signatory to the European Convention. If this court is simply not able to make the assessment he asks for and needs, then he will not meet the evidential burden upon him."

14. The Senior District Judge then quoted from the relevant passage of Sobczak (supra), concluding as follows:

"Each of the examples given is capable, in some circumstances, of creating unfairness. Even putting them all together with the other points Mr Drew makes in his proof, and even accepting Mr Drew's account, they would not demonstrate a flagrant breach of Article 6.

In these circumstances I am not prepared to allow Mr Drew to call evidence. With or without his evidence he does not establish an Article 6 breach. In those circumstances I must order extradition."

The Arguments

15. Mr Lloyd for the Appellant puts the legal argument in two complementary ways. Firstly, he emphasises that in extradition proceedings all relevant evidence should be presented to the Magistrates' Court during the substantive hearing, rather than on the appeal: see Szombathely City Court and Others-v-Fenyvesi [2009] EWHC 231 (Admin). Mr Lloyd argues that the Fenyvesi principle must mean that if evidence is wrongly excluded below, it cannot be excluded on appeal. Fenyvesi emphasises the need for any relevant evidence to be received at first instance. This is in truth a secondary point by which Mr Lloyd augments his principal submission: where the court has an obligation to be satisfied pursuant to Section 21 of the Act that convention rights will not be abrogated by extradition, he says the court has a clear obligation to receive any relevant evidence on the point.
16. Mr Stansfeld for the judicial authority submits that the bar is set very high by the test formulated by the European Court of Human Rights in Soering –v-United Kingdom (1989) 11 EHRR 439, as followed in (Ullah) (supra). He adopts the passage from paragraph 113 of Soering as follows:

"The court does not exclude that an issue might exceptionally be raised under Article 6….by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country."

Mr Stansfeld submits, based on succeeding case law, that this evidence comes nowhere near establishing such a flagrant denial of a fair trial.

17. In Jan Rot –v- District Court of Lublen, Poland [2010] EWHC 1820 (Admin) Mr Justice Mitting took the view that a district judge in the context of a Category 1 state need not examine the Article 6 question at all, save in "wholly extraordinary circumstances, in which the constitutional order of the requesting state has been upset for example by a military coup or violent revolution".
18. In Targosinski –v- Judicial Authority of Poland [2011] EWHC 312 (Admin) Toulson LJ cited the relevant passage of Mitting J's judgment in Jan Rot but concluded that Mitting J's formulation put the matter too high. It was possible to envisage other circumstances in which a defendant might be able to displace the presumption that Article 6 rights would be upheld, even in the context of a requesting judicial authority in a country which was a party to the convention and a member of the Council of Europe. However, Toulson LJ observed that:

"Given the presumption with which the courts start, it will require clear and cogent evidence to establish that in a particular case the Defendant's extradition would have contravened his human rights."

19. In Sobczak (supra) a judgment delivered in early February 2011, Lord Justice Toulson stated at paragraph 13:

"It is a far cry from [the decision in Soering] to argue that it is the duty of the requested state considering an EAW to entertain allegations about the fairness of the trial process in the requesting state. The framework of the Convention is built on mutual trust that states who are party to it will fulfil their own Convention responsibilities to ensure that a defendant is treated in a way compatible with Article 6. It is no longer any part of the function of the requested state to investigate whether there is a sufficient case on which to prosecute the person concerned, in cases of an accusation warrant. It would be equally inconsistent with the framework of the Convention if it were for the requested state to investigate the fairness of a conviction, in the case of a conviction warrant. Those are matters for the requesting state. In this case, the matter was considered at an appellate level. Ultimately, of course, a citizen aggrieved by the trial process in the courts of a country subscribing to the European Convention can bring a complaint to the Strasbourg Court."

20. In the following passage of his judgment, Toulson LJ considered the decision in Symeou - v –Public Prosecutor Greece [2009] EWHC 897 (Admin) and then concluded:

"By similar reasoning, in cases where the defendant asserts that his conviction was unsafe, it is for the appellate court of the requesting state to examine the merits of the complaint. Were it not so, the consequences would make the scheme potentially unworkable in a large number of cases of conviction warrants. The present case is an illustration."

21. The same issue was examined by the Divisional Court in the case of Agius - v- Court of Magistrates, Malta [2011] EWHC 759 (Admin). The leading judgment in this decision was given by Sullivan LJ. This was a decision given in mid March 2011. It is not clear from the judgment whether Sobczak was cited to the court. In Agius, the court considered a reformulation of the test by Mitting J, which he had set out in Palczynski –v- The District Court in Zamosc [2011] EWHC 445 (Admin). The court's conclusion in Agius was stated as follows:

"I have no doubt that the proposition that there is no need to undertake enquiries, save in wholly extraordinary circumstances, goes too far. Section 21 (1) imposed an obligation on the District Judge to reach a decision as to whether extradition would be compatible with the appellant's Convention rights. A judicial decision is made only after the judge has undertaken a proper inquiry.

In the light of the Grand Chamber's decision in MSS, the position is, in my judgment, as set out by Toulson LJ in Targosinski. The starting point for any inquiry for the purpose of making a decision under section 21(1) is the assumption (or presumption, it matters not) that the requesting state is able to, and will, fulfil its obligations under the Convention. Given the underlying objective of EAW scheme, that assumption is not easily displaced. However, it is capable of being rebutted by clear and cogent evidence, which establishes that in any particular case, extradition would not be compatible with the defendant's Convention rights.

In this context it is important to bear in mind paragraph 24 of Lord Bingham's speech in Ullah. There must be strong grounds for believing that any ill-treatment will be so serious as to cross the high Article 3 threshold. In the context of Article 6 there must be substantial grounds for believing that there is a real risk of a flagrant denial of a fair trial. In practical terms, therefore, the burden of displacing the assumption will be a heavy one, and it may well be the case that as a matter of fact successful reliance on section 21(1) will be the exception rather than the rule, but that does not mean that there is a legal obligation on an appellant relying on section 21(1) to demonstrate "exceptional circumstances.""

22. In the recent decision of the European Court of Human Rights in Othman -v-The United Kingdom (2012) 55 EHRR 1, the Court emphasised the high test that must be met in order to establish a "flagrant denial" of a potential extraditee's rights under Article 6. After citing Soering, the salient part of the court's judgment reads as follows:

"22.59 In the court's case-law, the term "flagrant denial of justice" has been synonymous with a trial that is manifestly contrary to the provisions of Article 6 or the principles embodied therein. Although it has not yet been required to define the term in more precise terms, the court has none the less indicated the certain terms of unfairness could amount to a flagrant denial of justice. These have included:

Conviction in absentia with no possibility subsequently to obtain a fresh determination of the merits of the charge;

A trial which is summary in nature and conducted with a total disregard for the rights of the defendant;

Detention without any access to an independent and impartial tribunal to have the legality of the detention reviewed;

Deliberate and systematic refusal of access to a lawyer, especially for an individual detained a foreign country.

22.60. It is noteworthy that, in the 22 years since the Soering judgment, the court has never found that an expulsion would be in violation of Article 6. This fact, when taken with the examples given in the proceeding paragraph, serves to underline the court's view that "flagrant denial of justice" is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in the breach of Article 6 if occurring within the contracting state itself. What is required is a breach of the principle of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction, of the very essence of the right guaranteed by that article."

My Conclusions

23. Having reviewed de bene esse the material which was placed before the Senior District Judge, he was in my view entirely right in the conclusions he reached. Given the high test now formulated and reformulated, in English authority and in the European Court of Human Rights, the material advanced by the Appellant is not capable of demonstrating a "flagrant denial of justice", even if it was accepted. This is not a question of the Appellant's credibility as a witness. The issue is not whether the conclusion in his case was correct. The issue is whether the system of justice in Poland represents a "flagrant denial of justice" in a systemic or general sense, capable of having an effect on the Appellant. The matters of which the Appellant would give evidence orally if permitted could not amount to that. The fact that he was represented, had an interpreter, had two successive appeals and has a right to seek to approach the European Court by way of further appeal, all demonstrate beyond any doubt that he could not establish what he would be required of to establish, so as to set up a bar to extradition under Section 21 of the Act.
24. The Senior District Judge was also correct, in my judgment, in making a preliminary or provisional assessment of the material which was sought to be introduced. I must not be understood to say that he had an obligation to read every word before making that assessment. In some concise and practical fashion, the Senior District Judge had to assess whether what was sought to be advanced could possibly, if accepted, establish a "flagrant denial of justice". That he did and did appropriately. It might well have been sufficient to ask the advocate representing the Appellant to lay out in very short form what it was proposed to be introduced, and decide the application on the basis of such an outline. In my view, it cannot be incumbent on a court at first instance receiving such an application to conduct a detailed examination of the material sought to be advanced. It certainly cannot be incumbent on a court to hear from the witnesses so as to assess the credibility of the evidence, unless and until the evidence sought to be introduced is shown to be capable of demonstrating "a flagrant denial of justice" in the sense outlined above.
25. For these reasons, this appeal is dismissed. The Appellant's legal aid costs are to be subject to a detailed assessment.