QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|DISTRICT COURT, WARSZAWA, POLAND
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ben Isaacs (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 6th December 2012
Crown Copyright ©
MR JUSTICE FOSKETT:
"There is before me an expert report from a Polish advocate that simply confirms that as a result of the ruling of the Constitutional Court, coupled with the upholding of that ruling by the European Court of Human Rights, there will be no question of the appellant being able to re-open the decisions upon which the arrest warrant is based were he to be returned to Poland. But, in my view, that does not assist him because there can be no conceivable suggestion that, apart from the security of tenure issue, there was any prejudice to the appellant from the fact that it was assessors rather than judges with security of tenure who decided the case against him."
The principal point developed
"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."
"This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union , in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."
"In R v Governor of Ashford Remand Centre, Ex p Postlethwaite  AC 924, 947 Lord Bridge of Harwich said that the court should not apply the strict canons appropriate to the construction of domestic legislation to extradition treaties. In In re Ismail  1 AC 320, 327 Lord Steyn, noting that there was a transnational interest in bringing those accused of serious crime to justice, said:
"Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition."
These passages describe the approach to the issues of statutory construction that have been raised in this appeal. But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."
"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
"25. Belgium is one of the territories, referred to in section 1(2) of the 2003 Act as category 1 territories, which have been designated for the purposes of Part 1 of the Act by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333). Part 2 provides for a separate system of extradition to category 2 countries. Those which have been designated as category 1 countries must make use of the procedure laid down in Part 1. The extradition procedure in that Part of the Act is initiated by what section 2(2) describes as a Part 1 warrant. This is an arrest warrant which is issued by a judicial authority of a category 1 territory. Its contents are prescribed by the statute.
26. One might have expected the draftsman, when he was prescribing its contents, simply to have followed what the Framework Decision says about this. The content and form of the European arrest warrant is laid down in article 8, in accordance with a form contained in an Annex to the instrument. But the 2003 Act has not adopted that approach. Section 2(2) provides that a Part 1 warrant must contain a statement which is not expressly provided for in the article, and it provides that it must contain information which lacks some of the details which the article requires. These details vary according to whether the person in respect of whom the warrant is issued is unconvicted ("accusation cases") and is being sought for the purpose of being prosecuted for the offence which it specifies, or has been convicted and is being sought for the purpose of being sentenced for that offence or for the serving of a custodial sentence that has been imposed in respect of it ("conviction cases"). Here too section 2(2) departs from the article, which makes no distinction as to the contents of the warrant between accusation and conviction cases. The same form is prescribed for them both.
27. The contents of the warrant are crucial to the operation of the system which has been laid down in Part 1. Section 10(2) states that the judge must decide whether the offence specified in the warrant is an extradition offence. That expression is defined in sections 64 and 65 of the Act. Section 64 applies to accusation cases. Section 65 applies to conviction cases. These definitions are almost identical, except that where the test of double criminality must be satisfied in accusation cases the conduct must be punishable by a custodial sentence of 12 months or more (see section 64(3)(c)), whereas in conviction cases the minimum sentence is 4 months (see section 65(3)(c)). Nothing turns on that distinction in the present case. What does matter is that the Part 1 warrant is the initiating document in all cases, irrespective of whether the offence is within the Framework list and irrespective of whether the double criminality requirement which is dispensed with in the cases referred to in sections 64(2) and 65(2) applies to it."
"I wish to stress, however, that [a judge conducting an extradition hearing] 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."
The response of the judicial authority
"The short question is whether this arrest warrant, complying with the formal requirements of the Framework Decision, is invalid under the 2003 Act because there is no separate certificate, and no express certification, to the effect specified in section 64(2)(b) and (c). If it is, the effect of the Act would be to introduce a requirement not found in the Framework Decision and thereby to impede, to some extent, achievement of the purpose of the Framework Decision, by reintroducing an element of technicality which the Framework Decision is intended to banish and by frustrating the intention that a warrant in common form should be uniformly acceptable in all member states. Happily, as I think, the House is not driven to that conclusion, since I consider that the Spanish judge, by signing the warrant, has given his authority to and thereby vouched the accuracy of its contents. Thus the warrant is in substance if not in form a certification by the judge. It would be inconsistent with the trust and respect assumed to exist between judicial authorities to insist on any additional verification, which would impede the process of surrender but do nothing to protect the rights of the appellant."
"What, then, if the Part 1 warrant itself purports to have been issued by a judge, magistrate or officer who, by signing it, can be taken to have accepted responsibility for its accuracy? Why should it not be held to constitute a "certificate" for the purposes of section 64(2)(b) and (c)? Section 2 does not say that an arrest warrant must be signed by a judge, magistrate or officer. It refers to an arrest warrant which has been "issued" by a judicial authority of the category 1 territory. The annex to the Framework Decision, on the other hand, requires the document to be signed. The signature may be that of the issuing judicial authority "and/or its representative." The requirement for a "certificate" which "shows" that the conduct is of the kind described in section 64(2)(b) and (c) adds something to the requirements that a Part 1 warrant must satisfy. But it does not follow that there must be a separate document."
Conclusion on principal argument
"It seems to me that it is quite impossible to say that in a case such as this - and I suspect in virtually any case involving a decision made by assessors - it can be shown that there was a flagrant breach of Article 6 or a breach which means that the Constitutional Court's decision that finality required the upholding of the relevant decisions and no right to challenge them was incorrect. Of course, if that is right it would mean that in respect of many cases where convictions or sentences resulted prior to 2009 - assessors being likely to have been involved - there would be a bar to extradition. That is not, in my judgment, the position."
" . In the present case, the Court notes that the judgment of the Constitutional Court identified a structural dysfunction and called for a legislative response. Such response was given by the Parliament which removed the structural dysfunction as of 2009 . The Court is of the opinion that in this particular context the finding of a violation need not necessarily entail the respondent State's obligation to reopen all proceedings in which assessors participated at the first-instance level. In this regard, the Court notes that the Constitutional Court devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings. In particular, it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned. Further, it emphasised that the finding of unconstitutionality concerned institutional provisions, that is, provisions regulating the composition of the bodies which gave final rulings. The Constitutional Court considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it . Consequently, the Constitutional Court held in the operative part of the judgment that its ruling could not serve as a basis for the reopening of cases decided in the past by assessors (or with their participation). This ruling was even extended to two claimants who successfully challenged the provisions regulating the status of assessors before the Constitutional Court, thus depriving them of the so-called "right of privilege" .
The Court would further observe that in the view of the Constitutional Court the constitutional deficiency identified in its judgment required the intervention of the legislator to bring the status of assessors into line with the Constitution, but there was no automatic correlation between that deficiency and the validity of each and every ruling given previously by assessors in individual cases. To that end the Constitutional Court ruled that the unconstitutional provision should be repealed eighteen months after the promulgation of its judgment. It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities which decided to abolish the office of assessor altogether within the time-frame allotted by the Constitutional Court . Having regard to the above, it may be noted that the authorities of the respondent State took the requisite remedial measures in order to address and remedy the deficiency underlying the present case."
The alternative argument
"8. [Counsel for the Appellant] contends that that is insufficient because it ought to indicate at the very least the circumstances which led to the activation because it is not known what were the conditions upon which the sentence was suspended, nor the circumstances in which the appellant is said to have failed to comply with those conditions. What the law requires, if one has the combination of Article 8 and section 2, is that there must be evidence of an enforceable judgment and of the penalty imposed if there is a final judgment. [Counsel for the Appellant] also referred to 8(1)(g), which refers to other consequences of the offence.
9. I am bound to say that it is not entirely clear to me precisely what that is intended to cover, and I am not aware of any particular authority which gives an answer to that question, but as it seems to me, particularly where, as here, it was clear that the appellant knew perfectly well what the conditions were and accepted that he had breached them (I already have referred to the reasons for that) the whole of the judgment was referred to, that is to say the fact of suspension and the fact of activation. As a general proposition, as it seems to me, that is all that is needed. I do not intend to lay down an absolute requirement here because, like all these cases, much may depend on the individual facts of the case."
"It is not necessary for me in the circumstances of this case to reach any final conclusion on that particular submission, and I am reluctant to do so. Suffice it to say that as at present advised, and I appreciate I have not heard full argument on the point, I have some doubt as to whether it suffices only to mention the activation, because what is required, certainly under the Framework, is an indication of the penalty imposed. As it seems to me, one would expect to include the whole penalty that was imposed by the court, that is to say the sentence originally suspended which has been subsequently activated. However, as I emphasise, I am not indicating that that is in my judgment a requirement, I am simply indicating my reservation as things stand at present in accepting the full extent of the submission made, but, as is apparent, it is not relevant for the purposes of this case because the warrant does make it clear that the sentence was originally suspended and has since been activated. In my view, that is sufficient to comply with the requirements. It is not necessary in circumstances such as these to specify precisely why the suspension was made ."