QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ZMIJEWSKI||Appellant|
|WESTMINSTER MAGISTRATES' COURT||Respondent|
|CROWN PROSECUTION SERVICE||Interested Party|
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Mr M Hawkes (instructed by BSB Solicitors) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
Mr A Payter (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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"9. As can be seen from the above on three occasions the court has given directions that there should be served on the court and CPS a statement of issues or skeleton argument and a signed proof of evidence. Those directions have been ignored and even today there is nothing in writing from those who represent this requested person. Mr Hawkes tells me that his instructing solicitors have been trying, no doubt assiduously, to obtain information from the UKBA and have been unable to obtain any response. Quite recently a new application and a new cheque have been sent to the UKBA and it is hoped that there may be a response in the near future.
10. I have decided that enough is enough. It doesn't take someone 6 months to establish whether or not they have asylum. If they haven't established that within 6 months, then they can't rely upon it. I cannot disguise my scepticism that this RP [requested party] ever obtained asylum. As I understand the position if asylum status is granted the successful applicant is sent a formal letter which they are told must be treasured and kept in a safe place because replacement copies will not be supplied. This RP says he has lost his letter and he cannot now remember the name of the solicitors who helped him. Furthermore the fact that in 2007 the RP was in Poland allegedly driving whilst disqualified and with excess alcohol in Poland is not consistent with a man who has a well found fear of persecution etc., in Poland.
11. Having refused to adjourn this hearing Mr Hawkes then told me that the RP wished to put evidence before the court and make submissions under section 14 of the Act (passage of time) and to argue that his extradition would not be compatible with his Convention rights in particular under Article 8 ECHR.
12. I did not permit the RP to give evidence or place any evidence before the court and I indicated I would not entertain any submissions on any of these points.
13. This court has got to be in a position to give proper directions which need to be followed if this court is to achieve proper case management of extradition proceedings. Those representing RPs need to be aware that the Criminal Procedure Rules apply. If 'passage of time' is raised as an issue that will almost inevitably involve a request for further information from the JA [judicial authority]. The RP needs to assert when he left the country, what the circumstances were, whether he knew of proceedings, were there any restrictions on his movement etc. Then for the CPS to consider whatever is said; thereafter make a determination whether it does, in fact, require instructions from the requesting state and if it does, to obtain it. For this RP to want to go in the witness box and give an account which cannot be effectively cross-examined, that may require an adjournment is just not acceptable. Repeated requests for 'skeleton and proof' over 6 months have just been ignored. I am not prepared for the court to be misused any further. The court does not know how these points might have been argued, but they could and should have been put into writing and served on the court and CPS as directed and, in any event, before the hearing.
14. If the court had agreed to await the information (ie if I had granted the adjournment) and then found he doesn't have asylum, it would have been an abuse of the process of this court, as further delay would inevitably have been occasioned, whilst the CPS were given time to make the necessary enquiries."
"At the time of the offence in EAW 1, I was living with my partner, [whom he names]. I was having an affair with the woman named in the warrant, [whom he also names]. She was aware that I was living with someone else, but [his partner] didn't know about the affair."
He then goes on to explain that the woman with whom he was having an affair had asked to borrow money "in order to do some home renovations". On the day of the alleged offence, 29 October 2001, she came to his flat with her daughter and they had lunch together. He then goes on to describe what he says happened in the flat, which included police officers bursting into it and assaulting him. He then said that he spent 6 months in a prison hospital and a further 2 months on remand. Because, he says, the complainant did not attend court, "I was released on 13 May 2002 without any bail conditions." He goes on to say that "at all times the police had my registered address in Poland [which he gives]. This property is owned to this day by my parents. I have lived there since 1990 and the police were fully aware of it." He then goes on to say that in 2003 he moved to Germany but continued to travel back periodically to Poland using his Polish passport. On one such visit he was stopped by police while driving, thus giving rise to the charge set out in the second European Arrest Warrant.
"This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality."
On the facts sets out in his statement he had clearly done so. He was plainly living as a settled resident of Poland at the time of the 2001 incident and remained living in Poland after his release from prison hospital or prison on 13 May 2002. He continued to use his Polish passport to come and go from Germany to Poland. On no view was he entitled to asylum in the United Kingdom and if he had been granted asylum by the united Kingdom, then in accordance with Article 1C of the Convention, it ceased to apply to him.
Under rule 3.5(6):
"If a party fails to comply with a rule or a direction, the court mayŚ
(a)fix, postpone, bring forward, extend, cancel or adjourn a hearing;
(c)impose such other sanction as may be appropriate."
In an extradition context, where speed is of the essence, those rules plainly apply with at least equal force as in any other criminal case. This court thrice sought a proof of evidence and a statement of issues to be filed and served on the CPS. If that had been done, the case could have been disposed of within, or at any rate not far outside, the statutory time limit for dealing with extradition cases. It is the failure of the claimant, including perhaps (although I have no right to inquire behind the veil of legal professional privilege) those who represented him, that he did not comply with clear court orders. It is no good to say, "I was waiting for the UKBA to respond to letters". It is no good to say, "Until my asylum claim was finally determined one way or another, I could not advance my case". For the reasons that I have explained, if elementary steps had been taken to explore the validity of the asylum claim, it would have revealed that it lacked any basis and could and should have led to the rapid and full deployment of any other bar to extradition upon which the claimant sought to rely.