QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Radomil Pomiechowski
|- and -
|The District Court in Legnica, 59-220 Poland
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Miss Corine Bramwell (instructed by CPS) for the Defendant
Hearing date: 24 October 2012
Crown Copyright ©
The Hon Mr Justice Burnett:
(i) The EAW issued on 11th of May 2006 is invalid because it fails to satisfy the requirements of section 2 of the Extradition Act 2003 ["the 2003 Act"]. This ground has two components. First, that the warrant fails to provide 'particulars' as required by that provision and is thus invalid. Secondly, that the warrant seeks the extradition of the appellant both in respect of convictions and an accusation, which it is suggested that the structure of the 2003 Act does not permit.
(ii) The extradition of the appellant pursuant to either warrant is barred by the passage of time, within the meaning of the 2003 Act.
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(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).
(3) The statement is one that
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(5) The statement is one that -
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
The focus of Mr Watson's submissions is upon section 2(6)(b) and whether the first EAW contains the necessary particulars of the convictions.
"Content and form of the European arrest warrant
1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
(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 judgement, 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 in 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.
The annex referred to contains a pro forma, which was used in this case. Box (b) of the pro forma makes provision for details to be provided of both arrest warrants and enforceable judgments.
"I want to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
"33. The appropriate level of particularity to satisfy section 2(6)(b) will depend upon the circumstances of each case. In relation to how far a warrant has to go in relation to particularity, I echo Dyson LJ's caution in Von der Pahlen (at ); it would be unwise to attempt a prescriptive answer to that question, nor do I seek to do so.
34. However, adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for and to enable him to consider whether any bars to extradition might apply. In the light of that I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted and some information about when and where the offences were committed, and the requested person's participation in them, although not necessarily in the same level of detail as would be required in an accusation warrant."
"15. On the face of it this looks like a very clear statement by the Divisional Court that in every case the details included in the particulars must include the court and the date of conviction.
16. The contrary view has been put forward on behalf of the judicial authority, and as support for that contrary position that it is not always necessary for the date of conviction to be particularised, some support is claimed from the decision of the administrative court, Treacy J, on 11 November 2010 in the case of Wosniak v. The Regional Court of Bialystok. That appeal concerned an asserted lack of sufficient particulars in relation to the appellant's conviction. The warrant in that case concerned a particular offence, but also cumulatively two earlier offences. The warrant identified both the court and the date of the index offence. It also included certain information in relation to the two earlier offences, but in neither case did it give the date of the convictions, though it did give the date upon which those offences were said to have been committed.
17. [T]he learned judge said as follows:
"9. Having regard to the need to consider the wording of the 2003 Act purposively, in the context of the framework decision, I do not consider that the date of the conviction needs necessarily to be spelt out in order to satisfy the requirement that particulars of the conviction be included in the warrant. If there is sufficient other information contained in the warrant which enables the fact and the circumstances of the conviction to be ascertained, then the legislation will be satisfied. Moreover, the court in Sandi was not focussing on the issue as to what constituted adequate particulars of conviction in relation to whether a date needed to be satisfied. The court was considering what details, if any, of the underlying conduct needed to be set out. I consider that it would be wrong to treat Sandi as laying down some inflexible rule that the date of conviction must always be specified. The question of particularity must always be considered in the light of the circumstances of the individual case.
11. In my judgment, the reality is that the requirement to give particulars of conviction pursuant to section 2(6)(b) is satisfied by the totality of the information in the warrant. This appellant, reading the warrant, would know clearly what he had been accused of, what he been convicted of, what he was sentenced to, and when and by which court. "
18. I agree with the approach identified by Treacy J. Neither the framework decision nor the Extradition Act specify that there must inevitably and invariably be a particular piece if information, such as the date of conviction or sentence, supporting the arrest warrant. The question is a matter to be looked at in the round and without unnecessary technicality, but it is necessary that the totality of the information must give the necessary particulars of conviction so as fully to inform the subject of the warrant sufficiently to enable him to know what he is going back to and what defences he might have, both here and abroad."
"20. I come to that conclusion on the basis of the statute, but I also draw 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 support the view accusation and conviction offences may not be combined in the same warrant and Mr Henley accepts that they may be.
21. The purpose of the Framework Decision is of course to remove complexity and potential delay in extradition procedures between participating states. I can see nothing in the scheme which requires separate warrants to be issued in respect of accusation and conviction matters.
22. There can be no principled objection to both being included in the same warrant provided it is made clear which matters are accusation matters and which are conviction matters. In particular I accept the submission of Miss Nice that not only would such an approach be an unnecessary complication in what is intended to be a simplified system but also it is difficult to see what useful purpose in terms of protection of the requested person such a requirement would provide."
"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?"
He then refused permission to appeal. Thereafter the Supreme Court itself refused permission to appeal. The issue arose again in Veiss v. Le Paelite Prosecutor General Office, Republic of Latvia  EWHC 2460 (Admin). The point was not pressed in that appeal, in the light of the refusal of the Supreme Court to entertain an appeal, but Bean J indicated that he would have followed the decisions already cited.
"(b) Decision on which the warrant is based: the resolution of the District Court in Legnica:- III Penal Department dated on the 11th of May 2006 year (11.05.2006 year)---
1. Arrest warrant or judicial decision having the same effect ..
- the judgment of Regional Court in Legnica dated on the 22nd of May 2000 (22.05.2000)
- the court decision issued by the Regional Court in Legnica on the 11th October 2002 year , to search by the "wanted" notice-------
- the judgment of Regional Court in Legnica dated on 6th of June 2000 year (06.06.2000)
- the court decision issued by the Regional Court on the 11th of October 2002 year to start the search by the "wanted" notice-------
- the judgment of Regional Court in Legnica dated on the 4th January 2001 year-----
- the judgment of Regional Court in Legnica dated on 21st of November 2000 year.------
- the court decision issued by the Regional Court in Legnica on the 10th of October 2002 year to start the search by the "wanted" notice.------
- the court decision issued by the Regional Court in Legnica on the 14th of November 2001 year to apply the prevent measure as detention waiting trial ----
2. Enforceable judgement:
Reference: IIK 318/00, IIK 554/00, IIK 1129/00, IIK264/02, IIK 1161/00------
(c) Indications on the length of sentence:
1. Maximum length of the penalty of deprivation of liberty or detention order which may be imposed for the offence(s):
In case IIK 264/02 10 years
2. Length of the custodial sentence of detention order imposed:
in case IIK 318/00 one year of imprisonment
in case IIK 554/00 1 year of imprisonment
in case IIK 1129/00 1 year of imprisonment
in case IIK 1161/00 2 years of imprisonment
in case IIK 264/02 3 months since the day of arrest
The part of the sentence remaining to be served:
in case IIK 318/00 11 months and 27 days of imprisonment
in case IIK 554/00 1 year of imprisonment
in case IIK 1129/00 1 year and five months and 28 days of imprisonment
in case IIK 1161/00 1 year, 8 months and 8 days of imprisonment
(d) Decision rendered in absentia and:
- The person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, Radomil Pomiechowski was informed about the term of the hearing, but did not appear in the court, because he absconded abroad, what led to issue the decision in absentia --------
This warrant relates to in total: the number of offences .. 7 .
Description of circumstance in which the offences(s) was (were) committed, including the time, place and degree of participation in the offences(s) by the requested person;
Nature and legal classification of the offence(s) and the applicable statutory provision /code:
In case IIK 318/00
1. On the 18th of July 1999 year (18.07.1999) in Legnica, acting together and in the consultation with Irensusz Wladyslaw Stasxewski committed the burglary into the truck car make "Mercedes" with registration number LCC 8059, in the way that , after breaking the front window glass the use of not identified tool they entered inside and took, with the aim of appropriating the car radio make "Mainton", two loud speakers, the warning triangle, the bag with two sets of the car wrenches with total value not lower that 150zl (PLN), by what he acted to the detriment of Henryk Wolak,
this is the action from the art.279 1pc--------
In case IIK 554/00
1. On the 12th March 2000 year (12.03.2000) in Legnica, acting together and in the consultation with the juvenile, to whom the materials were excluded to the separate prosecution, tried to commit the theft of the passenger car make Fiat 126p registration number LCC 7963 in the way that, after having opened, the driver's or passenger's lock with the use of not identified tool he got into the car, which he trying to start with not identified tool, but he did not achieve the aim, because he was stopped by the car owner, by what he acted to the detriment of Plotr Chrobot,
This is the action from art. 13 1pc by the reason of art 279 1pc
In case IIK 1129/00
1. On the 28th of September 1999 year (28.09.1999) in Legnica, acting together and in the consultation with Dawid Skuratowicz and Sebartian Wielgosz they committed the burglary to Bar Malinka in the way that, after breaking the bar window they got inside from where, after opening the till, with the aim of appropriating they took the amount of 10.70zl (PLN), and next two bottles of beer and the bowl with the noodles/ in polish pierogil, by what they caused the damage of total value 90zl (PLN) and acted to the detriment of Darinsz Lazurek,
This is the action from art. 279 1pc
In case IIK 1161/00
1. On the 31st of July 2000 year (31.07 2000) in Legnica, acting together and in the consultation with Daniel Mirga-Ondyez and the another person to whom the materials were excluded to the separate prosecution, committed the banditry on Rafar Jablonski in the way that, threatening of using violence, and than after hitting him with the elbow in the area of the stomach they took him, with the aim of appropriating money in amount 60 zl (PLN) to the detriment of the above mentioned .
This is the action from art 280 1pc
In case IIK 264/02
I. At night from the 6th to the 7th of September 1999 year, acting together and in the consultation with Dawid Skuratowicz, Lukasz Wielgusz, Krzysztof Piskadio, Sebastian Wielgosz, Damian Michalski and Jerzy Kwiatek, to whom the materials were excluded to the separate prosecution, they committed the burglary to the grocery shop, where after breaking the shop window they got inside from where, they took with the aim of appropriating the alcohol goods of different brands for total amount 1.042.28 zl (PLN) to the detriment of Gininna Spoldzieinia Samopomoc Chlopaka/Commune Co-operative Farmer's Self-help/ in Milkowice
This is the action from art 279 1pc
II. At night from the 30th to the 31st of August 1999 year in Milkowice acting together and in the consultation with Dawid Skuratowicz , Krzyaztuf Piskadlo Lukasz Wielgosz, Sebastian Wielgosz, they committed the burglary to the grocery shop, where with the use of not identified tool they broke the padlock on the door, got inside, from where they took with the aim of appropriating the tobacco, alcohol and sweet goods, for total value 4.970.39 zl (PLN) to the detriment of Gminna Spoldzielnia Chipska/ Commune Farmer's Co-operative/ Milkowice.
This is the action from art 279pc
III. At night from the 6th to the 7th of September 1999 year, acting together and in the consultation with Dawid Skuratowicz, Krzysztof Piskadlo, Lukasz Wielgosz, Sebastain Wielgosz, they tried to commit the burglary to the grocery shop, where with the use of not identified tool they broke the shop window, but they did not achieve the aim, because there was the grating by what they acted to the detriment of Witold and Anna Rosowicz
This is the action from art. 13 1pc by the reason of 279 1pc
[The particulars of each of these offences are then repeated verbatim in the next part of the EAW.]
(f) a. Other circumstances relevant to the case (optional information)
(NB. This could cover remarks on extraterritoriality interruption of periods of time limitation and other consequences of the offence)
Art.101 1pc (Penal Code) determines that the punishability of the crime terminates since the time of committing the crime passes:
1) 30 years - if the action is determined as murder crime
2) 20 years if the action is determined as another crime.
3) 15 years if the action is determined as the misdemeanour threatened with the detention exceeding 5 year period
4) 10 years if the action is determined as the misdemeanour threatened with the detention exceeding 3 year period.
5) 5 years in case of other misdemeanours.
The prescription of the punishability in case IIK 264/02 will terminate on the 31st of August 2024--------
Art.103 1 item 2pc (Penal Code) determines that the penalty cannot be carried out, if 15 years have passed since the validation of the convicting judgment in case of the imprisonment conviction not exceeding 5 years.
The prescription of the punishment will terminate:
in case IIK 318/00 on 30.05.2015 year /on the 30th of May 2015 year/
in case IIK 554/00 on 14.06.2015 year /on the 14th of June 2015 year/
in case IIK 1129/00 on 12.01.2016 year /on the 12th January 2016 year/
in case IIK 1161/00 on 20.02.2016 year / on the 20th of February 2016/"
Convictions and Accusations in the same EAW
" a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
He submits that it could have been made clear that an EAW could contain both conviction and accusation matters, but the definition does not do so. He points to Articles 5(1) and (3), 16(1), 18 and 25(1) as making different provision for conviction and accusation cases. He recognises that Article 8 (set out in  above) does not suggest that the two types of case cannot be combined in the same warrant. He also recognises that the pro forma is crafted in a way which enables both types to be contained within the same EAW. However, he draws attention to the covering rubric which is also couched in the alternative:
"This warrant has been issued by a competent judicial authority. I request that the person mentioned below is arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial or detention order."
" if (and only if) it appears that it would be unjust and oppressive to extradite him by reason of the passage of time since he is alleged to have
(a) committed the extradition offence (where he is accused of its commission), or
(b) became unlawfully at large (where he is alleged to have been convicted of it)."
The meaning of 'unjust and oppressive' was authoritatively determined by the House of Lords in Gomes v. Government of the Republic of Trinidad and Tobago  1 WLR 1038;  UKHL 21 drawing on and developing the reasoning in Kakis v. Government of the Republic of Cyprus  1 WLR 779. In short, 'unjust' is directed primarily to the risk of prejudice to the accused and the conduct of the trial itself. 'Oppressive' is directed towards hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration. There is room for some overlap. Between them they would cover all cases where to return the requested person would not be fair. Category 1 countries are all members of the European Union and parties to the European Convention on Human Rights. It can therefore ordinarily be assumed that the requesting state will ensure a fair trial. Where a person has fled from the jurisdiction of the requesting state he cannot rely upon delay which follows, even if the requesting state has been slow to start extradition proceedings. Oppression is a concept which imports a good deal more than hardship, which is a commonplace consequence of extradition.
"[T]he test of oppression will not easily be satisfied; hardship, a comparatively commonplace consequence of an order for extradition, is not enough."
There is nothing about the circumstances which moves the case into the category of oppression.