CO/3622/2014 
Neutral Citation Number: [2014] EWHC 3884 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 29 October 2014
 
B e f o r e: 

MR JUSTICE IRWIN 
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Between: 
PIOTROWICZ 
Appellant

v 

REGIONAL COURT IN GDANSK POLAND 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of
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Mr S Gledhill appeared on behalf of the Appellant
Ms N Draycott (instructed by CPS) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE IRWIN:  This is the adjourned appeal of the Appellant, Mr Rafal Piotrowicz, against the decision of District Judge Goldspring sitting in the Westminster Magistrates' Court.  I think the date was 28 July 2014 when judgment was given.  He ordered that the Appellant should be extradited pursuant to a European Arrest Warrant issued by the Regional Court in Gdansk on 4 July of last year and certified by the Serious Organised Crime Agency on 26 July 2013.  Poland is a designated category 1 territory for the purposes of the Extradition Act Part 1.  
2.	The European Arrest Warrant relates to four offences of drug trafficking alleged to have been committed with other Polish nationals.  Two are Messrs Coretski and Danielak, who the court understands are accused subjects before the Gdansk Court and whose depositions are said to form the evidence, or much of it, against the Appellant.  The fourth in the group was the late Mr Kasamerchek.  The material indicates that the plan was for major drugs importation into the UK.  Much of the preparation was in Holland, but the transit would have been through a number of countries.  
3.	It emerged in the course of the proceedings, before the District Judge gave his judgment, that a part of the overall offending overlapped with offences for which this Appellant had already been tried and sentenced in England.  In essence, one part of the importation had already been dealt with and hence, for reasons of double jeopardy, was dropped by consent from the application to extradite.  
4.	Two points arise in the appeal.  Firstly, whether extradition would not be in the interests of justice under section 19B of the Extradition Act 2003 and, in particular, whether the District Judge took a wrong approach to that question when reaching his conclusion.  Secondly, whether extradition would be disproportionate and breach the Appellant's rights under Article 8 of the European Convention on Human Rights.  
5.	Both arguments were raised in front of the District Judge.  He made a number of relevant conclusions necessary for understanding this judgment.   
6.	Therefore, I ask that the transcriber is given a copy of the District Judge's judgment with the pagination of the bottom centre and reproduces here the following passages.  At the top of page 8, a passage beginning, "there is no doubt that the first limb" and ending "conduct a balancing exercise" at the end of four paragraphs.  Next, there should be reproduced the passage beginning "whilst I accept that the importations were required transits from countries" and ending "therefore, most of the harm here lies in the UK."  Next, the passage entry for the rest of that page and the following page, page 10, and through to the conclusion of the second paragraph on the top of page 11.  That should be reproduced here.
7.	Note:  The court associate was unable to provide the shorthand writer with the document mentioned above.  If it can be provided with the amendments, the required text can be reproduced above. 
8.	The District Judge then went on, in my view, to direct himself appropriately as to the guidance in Norris v the Government of the United States No 2 [2010] 2 AC 487 that there would be no disproportionate breach of the Appellant's Article 8 rights.  
9.	In one respect, fresh evidence has been admitted to this appeal bearing on the Article 8 issue.  I am now asked to consider whether, within the terms of section 26(1) of the Act, the District Judge should have concluded differently.  
10.	Section 19B of the Extradition Act 2003 was introduced by the Crime and Courts Act 2013 and was in force from 14 October 2013.  
11.	The Divisional Court considered the new provisions in a case which was not available to the District Judge, because it was not handed down until after he had completed his judgment.  That is the case of Dibden v Tribunal de Grande Instance de Lille France [2014] EWHC 3074 (Admin), a decision of the Divisional Court.  The judgment was given by Simon J, with whom Pitchford LJ agreed.  
The relevant provisions of the Act read as follows: 
"19B Forum 
(1) The extradition of a person ("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
 (2) For the purposes of this section, the extradition would not be in the interests of justice if the judge ‑
 (a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
 (b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
 (3) These are the specified matters relating to the interests of justice ‑
 (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
 (b) the interests of any victims of the extradition offence;
 (c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
 (d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
 (e) any delay that might result from proceeding in one jurisdiction rather than another;
 (f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to ‑
 (i) the jurisdictions in which witnesses,  co‑defendants and other suspects are located, and
 (ii)the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
 (g) D's connections with the United Kingdom.
 (4) In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.
 (5) If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.
 (6) In this section "D's relevant activity" means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D." 
12.	The Divisional Court in Dibden gave some clear guidance in section 18 on that case which it is relevant for me to take into account in conducting this appeal.  Five initial points of overall guidance were set out as follows in paragraph 18: 
"First, the ultimate test is whether the extradition would not be in the interests of justice.  See section 19B(1).  
Secondly, there is a threshold or qualifying condition that a substantial measure of a Defendant's relevant activity was performed in the United Kingdom.  See section 19B(2)(a).  
Thirdly, the section is not concerned with the case where a defendant has been charged with an offence in the United Kingdom.  That situation is covered by section 22 of the Act which requires the adjournment of an extradition hearing, as happened in the case of Joseph Harrison.  Section 19B is concerned with the case where there is a possibility of a prosecution in this country.  
Fourthly, where the court finds that the threshold or qualifying condition is satisfied, the court must go onto consider the six specified matters which relate to the interests of justice which are set out in sub‑section 3(a) to (g) and "only those matters".  See (2)(b).  
Fifthly, the terms of section 19B contain no further guidance as to the weight to be given to the specified matters which should be taken into account.  The relative importance of each matter will vary from case to case and the weight to be accorded to the specified matters may also vary.  The court will be engaged in a fact specific exercise in order to determine whether the particular extradition would not be in the interests of justice." 
13.	The Appellant argues that there was here a substantial measure of activity in the UK for the purposes of section 19B(2)(a) and that, therefore, the court should look to the matters under 19B(3) to ascertain whether extradition would not be in the interests of justice, and the Respondent agrees thus far.  
14.	It is agreed under 19B3(a) that some, but probably not most, of the harm resulting from the extradition offence occurred in the UK.  Perhaps most of it was intended to occur in the UK.  These were importations intended to be importations to the UK and so that was the focus of most of the intended harm.  The interests of any victims were hard to establish, as the District Judge found, because there were no real victims.  In the end, the matter was interrupted and not identified.  
15.	The first and perhaps most controversial matter is the next criterion under section 19B(3) which is the belief of the prosecutor that the United Kingdom or a part of the United Kingdom was not the most appropriate jurisdiction in which to prosecute.  
16.	Here, the material before the District Judge consisted of the statement of a CPS representative called Simon Schwarz, who is a specialist prosecutor from the CPS Organised Crime Division (North).  He made a statement on 28 March 2014.  The Appellant criticises the conclusion of the District Judge that the statement or material from Mr Schwarz was "limited, but not flawed or unreasonable".  
17.	Mr Gledhill makes various criticisms of how this matter was addressed.  Firstly, he says the CPS had refused to serve or disclose the relevant prosecution case files from the previous prosecution in relation to the Appellant in 2007 and those are not made available to the court.  
18.	Next, no actual inquiries, says Mr Gledhill, were made to establish if relevant material held in Poland could be provided to the United Kingdom.  Much of the evidence must have come from Holland, in any event, since that it is common ground that much of the organisation took place in Holland, as the District Judge found.  It follows, says Mr Gledhill, that much of the evidence must be easily transportable or communicable from Holland to the UK.  
19.	He said that it was an assumption rather than anything clearer that most of the evidence of the planning, preparation and transit of the offences is with the Polish authorities.  The note provided by Poland appears to suggest that what they have are the depositions of Messrs Coretski and Danielak.  There is no reference to any evidence obtained by Poland from Holland.  
20.	Mr Gledhill goes on that no consideration appears to have been given to extradition of the defendants presently held in custody in Poland, or alternatively, facilities for them to give evidence in the United Kingdom, if they are to be witnesses, through such means as video link or the use of the hearsay provisions.  
21.	He says that evidence as to entry and movement of vehicles and persons around the United Kingdom must exist and be available in this country through such means as searching telephone records, credit card records and the like.  The Crown has made no reference to having provided any such material to the Polish authorities.  
22.	Next, he says that the fact that the prosecution interviewed the Appellant about multiple entries into the United Kingdom at the time of his original arrest suggests, at least, as he puts it, "a realisation of the potential criminal significance of multiple trips to the UK from Holland".  
23.	He then relies on the fact that the Crown concede that these offences could be tried in the United Kingdom, a concession which appears in the original skeleton argument on behalf of the requesting judicial authority.  He encapsulates his criticism on this part by saying the prosecution belief simply was not explored sufficiently.  
24.	In the course of argument, Mr Gledhill was asked by me to consider how far that process should go.  Should there be disclosure of the existing files held by the CPS so as to demonstrate the exact extent of their evidence?  Should there be disclosure sought of the files held by the Polish authorities so as to compare the two?  
25.	Mr Gledhill was pressed two or three times as to where, in his submission, the limits of this process of investigation should go in the course of an extradition hearing.  Perhaps wisely, he declined to attempt to formulate any general limitations.  But it is clear that his submission is that there should be an extensive examination of the basis of the prosecutor's "belief" as to the appropriate jurisdiction.  
26.	Guidance was given in the course of the Dibden decision in the judgment of Simon J on this issue at paragraph 35.  He said this: 
"In my judgment, section 19B(3)(c) was not intended to invite a review of the prosecutor's belief as to the more appropriate jurisdiction on grounds short of irrationality.  It was certainly not intended to invite a debate with demands for documents justifying the belief."
27.	In my judgment, that was an entirely correct observation.  The very statutory language, which for convenience I repeat, "any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute", is instructive.  It is not any developed view.  It is not any rational written, presented or any other qualification intended to invite investigation by the court in the way submitted or in a way constant with the submissions of Mr Gledhill.  Of course, an irrational belief by the prosecutor which was self‑evidently so would carry little or no weight when considered by the court looking at the relevant factors.  Of course, inquiries to establish, in round terms, what the basis of the belief may be will be entirely appropriate, but it would be far beyond what, in my submission, was intended by the introduction of this consideration as one, amongst others, for the kind of secondary litigation presupposed by Mr Gledhill's submissions to be appropriate.  I am fortified in that view by the judgment in Dibden.  
28.	The submission on behalf of the requesting judicial authority from Ms Draycott is that there was a perfectly careful exercise and a sensible exercise of judgment by the DJ on the facts of this case.  With that, I agree.  
29.	The second specific criticism is that of cost.  Mr Gledhill says that it is illegitimate for the court to consider the cost of trial, as, at least in one reference, the District Judge did.  Cost should be irrelevant.  The response put to Mr Gledhill in the course of his submissions and affirmed and adopted by the Respondent is that cost is part of "practicability", a criteria specifically mentioned in 19B(3)(f).  (f) focuses on practicability in specific respects.  The jurisdictions in which witnesses, co‑defendants and other suspects are located, the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside of the United Kingdom, but the words in brackets before descending to those two specific examples, that is to say "having regard (in particular) to", make it clear that the court has legitimate regard to all aspects of the desirability and practicability of prosecutions relating to the extradition offence.  
30.	Of course, would be quite wrong for considerations of costs to loom too large.  If consideration of cost was thought to be critical on its own, then that would require real justification, in my view, before it would be a proper means of deciding a case which otherwise would be decided in a different way.  But as at one of the considerations of practicability, it seems to me it is not illegitimate to have some eye to the relative cost, all other things receiving satisfactory answer.  
31.	Finally, Mr Gledhill looks with concern upon one phrase used by the District Judge when he made reference to "the balance of convenience" favouring extradition and the choice of forum in Poland.  That is not a phrase that appears in the statute and it is not a phrase which is particularly apt for any of the language that appears in the statute.  On the other hand, nor does it tell us, in my judgment, that the learned judge, at the very end of his careful and quite extensive consideration of the Act, suddenly abandoned all of the considerations he had set out seriatim before.  On the contrary, it seems to me that this was a use of a phrase as a convenient way of expressing the fact that he had taken an overall judgment of the matters which he had, one by one, considered.  
32.	As Ms Draycott submitted, it seems to me that this was not the imposition of a new or different test.  It was simply the deployment of a phrase with which we are familiar from other legal contexts to encapsulate what he had said already.  
33.	For all those reasons, I reject the submissions of the Appellant in criticism of the approach taken by the District Judge to section 19B of the Act and the decision as to forum.  
34.	I turn to Article 8 and to the second ground of appeal.  In addition to the material before the District Judge, the court has been informed and, indeed, there is evidence before me today, that the Appellant's current partner has become pregnant with his child.  It follows that that is a relevant matter for consideration under Article 8.  Clearly that is evidence which could not have been put before the District Judge.  It satisfies the test in Fenebessi and I certainly accept it and will consider it.  
35.	The Appellant has a former wife living in the United Kingdom and by her, has a daughter of 12 years of age at this stage.  He does give some financial support to them and he sees the child every six weeks or so.  In addition, he has, as I have just indicated, a girlfriend who is pregnant and will have more responsibilities to that child.  All of the considerations in HH as to the needs of children arise.  However, it seems to me that they were properly approached by the District Judge.  This is extremely serious offending.  Paying every attention to the requirements and the interests of what will be two children of this Appellant and to his family life as well as to theirs, this case gets nowhere near the level of invasion of that family life, in my judgment, so as to justify withholding extradition for very serious drugs offences.  
36.	The pregnancy of his girlfriend arises well after he was fully alive to the extradition that was pending over him.  In common sense, she must have been alive to that as well.  I do not yield to the temptation of regarding that as a device.  As the Supreme Court made clear in HH when considering exactly this concern in relation to Appellants in that case, I do not fall into the trap of coming at that factor, if it is the case, and being any the less cognisant of the needs of the child who will be born.  However, it is one of those situations where, so far as the Appellant's family life is concerned, his becoming or his engendering a pregnancy in the knowledge of the extradition proceedings must act to adduce his interests in family life in Article 8.  
37.	In any event, the overwhelming consideration here is that balancing the family life of him, his 12 year old daughter, his partner and the child to be against the very serious considerations of prosecuting such major offending means that the correct answer is in favour of extradition.  More to the point, the District Judge made no error in reaching the same conclusion, as he did.
For all those reasons, this appeal is dismissed.
38.	MR GLEDHILL:  My Lord, just two matters.
39.	MR JUSTICE IRWIN  :  Yes.
40.	MR GLEDHILL  :  In the circumstances, I suppose I am obliged to ask for an assessment of costs in the usual terms.
41.	MR JUSTICE IRWIN  :  Yes.
42.	MR GLEDHILL  :  Secondly, in the concluding comments of the transcript in Dibden, it is clear that an expedited transcript of that judgment was sought with a view to potentially certifying a point of general public importance.
43.	MR JUSTICE IRWIN  :  You mean in Dibden.
44.	MR GLEDHILL  :  Yes.
45.	MR JUSTICE IRWIN  :  Yes.
46.	MR GLEDHILL  :  I do not know at the present time if that has been done or not.  My Lord, it may well be a matter to which we wish to align ourselves, in the circumstances.  I simply ask at this stage, on payment of the appropriate fee, that your Lordship order an expedited transcript of this judgment as well.
47.	MR JUSTICE IRWIN  :  Certainly.  I think you pay more if you have it expedited.  
48.	MR GLEDHILL:  Yes, we do.
49.	MR JUSTICE IRWIN  :  I am perfectly happy to order it.
50.	MR GLEDHILL  :  I am grateful.  
51.	Sorry, my Lord.  There may just be one additional point in relation to bail.  If I can detain the court for just one moment.
52.	MR JUSTICE IRWIN  :  Yes, of course. 
53.	MR GLEDHILL:  No, I apologise.  There is not.
54.	MR JUSTICE IRWIN  :  There is not.