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
		12 February 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Coleman, who directed the return of the appellant to Poland to face prosecution for a number of offences. Essentially what was alleged was what can be called a red diesel fraud, that is the dishonest evasion of VAT in relation to the use of diesel, which is only allowed to be used without paying the necessary duty or tax for specific purposes. In addition, there was a third offence, which alleged money laundering in relation to the proceeds improperly obtained from the fraud. The fraud itself, under this warrant, was alleged to have been committed between May and September 2004.
2. On its face, there is nothing wrong with this warrant. The difficulty has arisen because there was a second warrant, which in fact was dealt with earlier, which alleged the same offences, in the sense that they were contrary to the same provisions of the relevant code in Poland but related to instances on one date only in July 2004. They were in fact one overt act, if one likes to consider it in terms of an overall conspiracy, in furtherance of that conspiracy. The overall conspiracy is reflected in what is alleged in EAW2, as I shall call it, which is the one before me. The incident relied on, or the actual dishonesty involved, which is the use of a forged instrument, which is covered by EAW1, was issued from a different prosecuting authority than the authority responsible for EAW2. The actual forgery was not a matter which was relied on in EAW2. It looks as if there was not the liaison between the two prosecuting authorities that would have been desirable, and I put it no higher, and it seems that those responsible for EAW1 were aware only of the single transaction, no doubt one committed within their jurisdiction, and the wider picture was known to those responsible for EAW2 but it seems they were not aware of the single dishonest use of a forged instrument which is covered by EAW1.
3. There is thus clearly a considerable overlap between the two warrants. Enquiries were made of the prosecuting authority in Poland to see what the position would be were he to be extradited. In fact the information was given by the authority responsible for EAW2. There has been a degree of clarification required but the final decision, dated 6 July 2012, was before District Judge Coleman, his decision being given on 19 November 2012. What was said was this:

"(1) It has been agreed between the Regional Prosecutor's Office in Wloclawek and the Regional Prosecutor's Office in Bielsko-Biala that the proceedings against the appellant will be combined.

"(2) After the proceedings are combined, the regional prosecutor's office in Bielsko-Biala will have responsibility for the case.

"(3) In the case against the appellant, one substantive decision will be made by the regional prosecutor's office in Bielsko-Biala, their proceedings having a broader material scope.

"(4) The Jaroslaw Borowski is of no risk of being punished twice for the same offence.

"(5) We have been informed by the Regional Prosecutor's Office in Bielsko-Biala that, in the case of the indictment against the appellant is filed in accordance with territorial jurisdiction regulations, it will be handed up to the regional court in Katowice."

The two authorities have now sensibly put their heads together and decided in the way that I have indicated.

4. In the light of all that, the submission made essentially is that the warrants, because they overlap, mean that there is a defect in EAW2, which is the subject of the appeal before me. Essentially, the overlap is more apparent in offence 3 than it is in 1 and 2 because 3 alleges the same laundering of money but is reliant upon one transaction, in the case of EAW1, rather than the numerous transactions which are the subject of EAW2. It is essentially the same offence.
5. Unfortunately, EAW1 was dealt with in isolation from EAW2. EAW1 was issued by the regional court in Wloclawek in July 2011 and was dealt with on 15 March 2012 by the District Judge at Westminster. EAW2 was issued by the regional court in Bielsko-Biala and was not issued until March 2012 and the appellant, as I have already said, was dealt with for it by District Judge Coleman on 19 November 2012. It would, with hindsight, have been desirable to have heard the appeals from District Judge Coleman and District Judge Arbuthnot together but, unfortunately, the appeal from District Judge Arbuthnot came before Mitting J on 28 November 2012, the day before District Judge Coleman had heard the matter and reached his decision. The learned judge decided the matter, as it were, in isolation but he had had drawn to his attention the existence of EAW2, and essentially the same points were taken on behalf of the appellant as are taken before me by Ms Nice. She did not appear in the earlier appeal. That was conducted by Ms Bramwell.
6. What Mitting J decided was that, if the contention of the judicial authority was correct, then the problem which was identified from a decision of Keith J in Voros v The District Courts in Hungary [2012] EWHC 518 (Admin), and the subsequent decision [2012] EWHC 1079 (Admin), where Keith J had before him a number of warrants, some of which clearly charged identical offences, that is to say there was a real overlap in the sense that there were two warrants charging precisely the same offence. He whittled them down to ensure that the appellant in that case was only extradited for the charges which he actually faced, and not for the number of charges contained in all the four separate warrants. He, therefore, was only extradited for eight, as opposed to 16, which were actual independent offences. Mitting J said that problem might or might not arise here because, in respect of the first and second charges, it would not arise but it might, Mitting J thought, in relation to the third, that is the money laundering offences. Mitting J had before him the clarification given by the prosecuting authorities and, as he said, that response demonstrated no more than that the prosecuting authorities of the two courts would make a sensible combined decision that the lead would be taken by the prosecutor in Bielsko-Biala and that these were matters for the internal arrangements of the Polish criminal justice system and that it was sufficient for the purposes of section 23(b) of the Act that the warrant stated that the extradition of the requested person was sought for the purpose of being prosecuted for the offence. It did not matter which court prosecuted him, provided that he would be prosecuted for the offence. As far as the ground relied on before Mitting J for the abuse of process, he was satisfied that it was not. The conduct relied on was not an abuse of process because, if two prosecuting authorities in different courts faced with criminal conduct expand the jurisdiction of both and was, as he put it, temporarily elongated, it was not an abuse for two warrants to be issued in respect of that conduct.
7. What matters for the purpose of an EAW is that the prosecuting authority which issues it intends that the individual is to be prosecuted for the offences set out in that warrant. There is no question but that, when those warrants were issued, that was the intention of the individual prosecuting authorities. It has since transpired that there is a degree of overlap but it is not the same sort of overlap as occurred in the Voros case because it is apparent that the offences alleged in EAW2 go much wider than those alleged in EAW1. Indeed EAW1, so far as offences 1 and 2 are concerned, covers but one incident in the criminal conduct, which is overall criminal conduct, which is charged in EAW2 and so far as charge 3 is concerned, as I say, that, in EAW2, relies on wider evidence than is relied on in EAW1.
8. In those circumstances, each of these warrants was, in my judgment, a perfectly valid warrant setting out an intention to prosecute for the offences therein charged, and he will be prosecuted for those offences, in the sense that the likelihood is that the offences charged in EAW2, that is the wider offences, will be prosecuted but they will subsume those alleged in EAW1. There is nothing unlawful, in my view, in that and it is perfectly proper that extradition is sought and granted where, as I say, it is clear to the court that there is a real intention to prosecute. If a person is extradited for an offence and if, in the end, the decision is reached, for whatever reason, that a prosecution will not in fact take place because of circumstances that arise, that is no reason to doubt the validity of the warrant or the propriety of the extradition. It can happen, and the circumstances may change, for example it may transpire that the evidence which was relied on turns out not to be reliable, albeit the prosecutor had decided that a prosecution would take place. So the mere fact that, in the end, the prosecution does not ensue does not mean anything wrong in the warrant, provided that, when the extradition is sought, at all times up to obtaining the extradition, the intention is to prosecute for the offence charged. That clearly is what is intended in this case and, like Mitting J, I take the view that the arrangements to avoid unfairness to the appellant when he gets back to Poland and faces the red diesel fraud and money laundering charges cannot invalidate the warrant.
9. In those circumstances, I am satisfied that the extradition in this case was correct and this appeal is therefore dismissed.
10. The usual order?
11. MS NICE: Yes, please, my Lord. Thank you.
12. MR JUSTICE COLLINS: Thank you.