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
		19 December 2012

1. MR JUSTICE IRWIN: This is an appeal by the appellant against an order for extradition to Poland. The history is best set out at follows. On 1 November 2005, with the reference 282/06, he is accused of a burglary carried out on that date. On 7 October 2006, under reference 465, he has been accused of a burglary carried out on that date. With reference 465/07 he is accused of supply of cannabis between February and March 2007.
2. Criminal judgment, as it is described, was reached by the Regional Court in Gliwice on 14 June 2006 in reference to the earlier matter, 282/06, the burglary. The appellant appeared at that trial and was given 1 years' imprisonment.
3. In relation to the matters 465/07, there was, it appears, a hearing in Poland on 23 October 2007. On 4 June 2012 a European Arrest Warrant was issued by the Regional Court of Gliwice in respect of all of these matters with both criminal reference numbers. The EAW was certified on 1 September 2012. The appellant was arrested on 29 October and appeared in front of Deputy Senior District Judge Arbuthnot on 30 October, the following day. He was represented at that hearing. He did not consent to extradition but the hearing proceeded as an uncontested hearing and the order was made. There is a short note of the hearing which it is agreed is accurate.
4. So far as the record is concerned, it is clear that no section 2 point was taken in relation to the European Arrest Warrant by the appellant's lawyers. He entered grounds of appeal himself based entirely on an Article 8 point that he had taken before the District Judge on 5 November. The matter was adjourned on 6 December by Foskett J in response to an application on behalf of the appellant.
5. I deal firstly with the Article 8 claim, which is, at least in theory, renewed by Mr Henley today. I see no basis for that. I see no basis under the principles in Fenyvesi why fresh evidence in relation to that point should be admitted at this stage. All the material that is sought to be produced could and should have been in front of the District Judge. In any event, it seems to me without any real foundation and that any additional evidence would be unlikely to be decisive.
6. Mr Henley's real argument is based on the claim of ambiguity or difficulty of meaning in the warrant. He reminds me of the well-known dicta of Lord Hope in Dabas v Spain [2007] UKHL 6 at paragraph 50. It is not necessary for me to repeat that in the course of this judgment, it is too well-known. It is clear that Lord Hope was emphasizing the necessary formality of European Arrest Warrants and how any ambiguity as to sense may be fatal.
7. The problem arises in this way: the details given in boxes B and C of the warrant make it clear that offences numbers 1 and 2, which is to say the reference K465/07, carry a maximum sentence of 10 years, and that is in order to qualify for extradition. Box E in the warrant makes it clear that the same two matters are matters of accusation and that there has been no trial. In boxes B and C, the earlier matter, giving the reference IIK-282/06, is treated as a conviction warrant. Box C confirms that carries a sentence of 1 years' deprivation of liberty. Similarly, in box E, the description of that earlier matter under the reference 282-06 is a conviction and the warrant is sought for the sentence to be served.
8. In box D, the first bullet point in relation to case 2, the earlier case, 282/06, recites:

"Yes, the person appeared in person at the trial resulting in the decision - (the case marked as "(II)")."

The second bullet point reads as follows:

"No, the person did not appear in person at the trial resulting in the decision - (the case marked as "I")."

That is to say K465/07.

9. Mr Henley says the wording stating that the person did not appear in person for trial is inconsistent with an accusation warrant because of course there has not been a trial. Later in box D, there is text which Mr Henley states relates to the later case, case I, reference 465/07, which is also inconsistent with it being an accusation warrant and more consistent with there having been a trial in the appellant's absence. The text reads as follows:

"The person will be informed of the time frame within which he has to request a retrial or an appeal which will be 7 days - (the case marked as"(I)")".

10. Standing back, the issue is whether there is ambiguity within this EAW, sufficient to render the warrant inconsistent with the requirements of the Act. It would seem to me that there is a degree of confusion which probably relates not to a typographical error but to clerical error. However, it seems to me that it is sufficiently clear to determine from the warrant overall that what this appellant is facing is one conviction warrant for the earlier offence, and a warrant in respect of two offences of which he is accused in respect of the later alleged offences. I fully accept from Mr Henley that the two passages I have quoted within box D are inconsistent with an accusation warrant. It is equally obvious to me that they are clerical errors and that when one reads the warrant overall, including the full text, box B, box C and box E, there is actually no uncertainty.
11. Accordingly, in my view, this is a failing in the warrant which is not sufficient to render it incompatible with the requirements of the Act. Therefore, on both grounds, the appeal fails.
12. Thank you both very much.
13. MR HENLEY: Thank you, my Lord, I just ask for my detailed assessment.
14. MR JUSTICE IRWIN: Yes, certainly.
15. MR HENLEY: Thank you.