ON APPEAL FROM WESTMINSTER MAGISTRATES COURT
Senior District Judge Riddle (Chief Magistrate)
District Judge McPhee (Magistrates' Court)
District Judge Michael Snow (Magistrates' Court)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE COLLINS
| Janusz Miraszewski
|- and -
|District Court in Torun, Poland
Circuit Court, Rzeszow, Poland
|1st and 2nd Respondents
Edward Fitzgerald QC and Nick Hearn (instructed by Lawrence & Co) for the 3rd Appellant
Mark Summers QC and Adam Payter (instructed by The Crown Prosecution Service) for the 1st 2nd and 3rd Respondents
Hearing dates: 2nd December 2014
Crown Copyright ©
Lord Justice Pitchford :
1. These are appeals by Janusz Miraszewski, Lukasz Kanigowski and Marcin Fluśniak under section 26 of the Extradition Act 2003 against orders made in the Westminster Magistrates' Court for their extradition to Poland. Section 21A of the Extradition Act 2003 inserted by section 157(2) of the Anti-Social Behaviour, Crime and Policing Act 2014 applies to an extradition decision made on or after 21 July 2014. These appeals have been listed together at the direction of Master Gidden because they raise for the first time in this court common issues as to the compatibility of extradition with Convention rights and the proportionality of extradition that arise under section 21A(1)(a) and (b) of the Act. While the submissions made on the appellants' behalf largely concerned the correct application of section 21A(1)(b) [the new freestanding proportionality test], the appellants also contend that their extradition is incompatible with their Convention rights under Article 8 ECHR. I shall describe the legislative history of section 21A later in this judgment commencing at paragraph 17. I have been much assisted by the researches and submissions of counsel on both sides.
The judges' findings
Section 21A Extradition Act 2003
"21A Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.
(8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."
Thus, the proportionality test in section 21A(1)(b) applies only to accusation and not to conviction cases.
"(7A) But in the case of a Part 1 warrant containing the statement referred to in subsection (3) [that the requested person is accused and is wanted for prosecution], the designated authority must not issue a certificate under this section if it is clear to the designated authority that a judge proceeding under section 21A would be required to order the person's discharge on the basis that extradition would be disproportionate. In deciding that question, the designated authority must apply any general guidance issued for the purposes of this subsection.
(7B) Any guidance under subsection (7A) may be revised, withdrawn or replaced.
(7C) The function of issuing guidance under subsection (7A), or of revising, withdrawing or replacing any such guidance, is exercisable by the Lord Chief Justice of England and Wales with the concurrence of—
(a) the Lord Justice General of Scotland, and
(b) the Lord Chief Justice of Northern Ireland."
"New Practice Direction on Extradition
CPD II Preliminary Proceedings 17A: EXTRADITION: GENERAL MATTERS
General matters: expedition at all times
17A.1 Compliance with these directions is essential to ensure that extradition proceedings are dealt with expeditiously both in accordance with the spirit of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States and the United Kingdom's other treaty obligations. It is of the utmost importance that orders which provide directions for the proper management and progress of cases are obeyed so that the parties can fulfil their duty to assist the Court in furthering the overriding objective and in making efficient use of judicial resources.
General guidance under s. 2(7A) Extradition Act 2003 (as amended by the Anti-Social Behaviour, Crime and Policing Act 2014)
17A.2 When proceeding under section 21A of the Act and considering under subsection (3)(a) of the Act the seriousness of the conduct alleged to constitute the extradition offence, the judge will determine the issue on the facts of each case as set out in the warrant, subject to the guidance in 17A.3 below.
17A.3 In any case where the conduct alleged to constitute the offence falls into one of the categories in the table at 17A.5 below, unless there are exceptional circumstances, the judge should generally determine that extradition would be disproportionate. It would follow under the terms of s. 21A(4)(b) of the Act that the judge must order the person's discharge.
17A.4 The exceptional circumstances referred to above in 17A.3 will include:
i. Vulnerable victim
ii. Crime committed against someone because of their disability, gender-identity, race, religion or belief, or sexual orientation
iii. Significant premeditation
iv. Multiple counts
v. Extradition also sought for another offence
vi. Previous offending history
17A.5 The table is as follows:
|1 Category of offence Minor theft – (not robbery/ burglary or theft from the person)||Examples Where the theft is of a low monetary value and there is a low impact on the victim or indirect harm to others, for example:
(a) Theft of an item of food from a supermarket
(b) Theft of a small amount of scrap metal from company premises
(c) Theft of a very small sum of money
|Minor financial offences (forgery, fraud and tax offences)||Where the sums involved are small and there is a low impact on the victim and / or
low indirect harm to others, for example:
(a) Failure to file a tax return or invoices on time
(b) Making a false statement in a tax return
(c) Dishonestly applying for a tax refund using a ment
(d) Obtaining a bank loan using a forged or falsified document
(e) Non-payment of child maintenance
|Minor road traffic, driving and related offences||Where no injury, loss or damage was incurred to any person or property, for example:
(a) Driving whilst using a mobile phone
(b) Use of a bicycle whilst intoxicated
|Minor public order offences||Where there is no suggestion the person started the trouble, and the offending behaviour was for example:
(a) Non-threatening verbal abuse of a law enforcement officer or government official
(b) Shouting or causing a disturbance, without threats
|Minor criminal damage (other than by fire)||For example, breaking a window|
|Possession of controlled substance (other than one with a high capacity for harm such as heroin, cocaine, LSD or crystal meth)||Where it was possession of a very small quantity and intended for personal use|
The extra-statutory materials
"(3) Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that—
(a) by reason of the trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
"The EAW should be used in an efficient, effective and proportionate manner as a tool for the prevention and repression of crime, while safeguarding the human rights of suspects and convicted persons. The instrument, which is based upon the deprivation of personal liberty, is in principle designed to further the prosecution of more serious or more damaging crime which may substantially justify its use, or for purposes of enforcement of convictions. It is only intended to be used if an arrest warrant or any other enforceable judicial decision having the same effect has been issued at national level."
"The EAW should not be chosen where the coercive measure that seems proportionate, adequate and applicable to the case in hand is not preventive detention. The warrant should not be issued, for instance, where, although preventive detention is admissible, another non-custodial coercive measure may be chosen – such as providing a statement of identity and place of residence – or one which would imply the immediate release of the person after the first judicial hearing. Furthermore, EAW practitioners may wish to consider and seek advice on the use of alternatives to an EAW.
Taking account of the overall efficiency of criminal proceedings these alternatives could include:
·Using less coercive instruments of mutual legal assistance where possible.
·Using videoconferencing for suspects.
By means of a summons
·Using the Schengen Information System to establish the place of residence of a suspect
·Use of the Framework Decision on the mutual recognition of financial penalties
Such assessment should be made by the issuing authority."
The court was informed by Mr Summers QC for the respondent that Poland continues to apply the principle of legality.
The process of assessment
The legislative purpose
"the disproportionate use of the EAW for trivial offences … New clause 23 means that UK courts will be able to deal with the long-standing issue of proportionality, which is a fundamental principle of EU law. It will require the judge at the extradition hearing to consider whether extradition would be disproportionate. In making that decision the judge will have to take into account the seriousness of the conduct, the likely penalty, and the possibility of the issuing state taking less coercive measures than extradition; for example issuing a court summons. Putting that proportionality bar in the legislation will ensure that extradition, which, of course, entails a person being sent to another country and being arrested and likely to be detained, happens only when the offence is serious enough to justify it."
"(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); ..."
In writing it was suggested on behalf of the appellants that, if the judge does not give consideration to a subsection (3) factor, reasons should be given. The question arises whether the bracketed words mean that the judge has a complete discretion whether to consider all or any of the subsection (3)(a) – (c) factors or that the judge must consider them all but is free to make an assessment of their comparative weight. In my opinion, the breadth of the expression used within brackets is such that the judge may decline to give consideration to the subsection (3) factors at all but, since section 21A(1)(b) requires the proportionality decision to be made, it is a decision that must be made judicially. For example, there may be a concession made on behalf of the requested person that upon considered advice no point on proportionality is taken; or the answer to the proportionality issue may be so obviously apparent on the face of the EAW that no analysis of the subsection (3) factors is necessary. However, in the overwhelming number of cases in which the point is taken it seems to me that the statutory function could not be performed unless the judge expressly addresses the subsection (3) issues. I also consider that the bracketed words enable the judge to give differential weight to subsection (3) factors depending upon the circumstances of the case. For example, the judge may not be able to reach a conclusion as to the likely sentence. If the judge cannot resolve the issue one way or the other, necessarily the weight to be given to the paragraph (b) factor will be reduced. I accept the submission that the judge should give reasons both when he examines the subsection (3) factors and when he finds it inappropriate to do so.
The relevance of delay
Subsection (3)(a) – seriousness of the conduct alleged
Section 21A(3)(b) – the likely penalty on conviction
Section 21A(3)(c) – less coercive measures
The appellants' cases
46. For the reasons I have given I would dismiss all three appeals.
Mr Justice Collins
47. I agree