QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -|
|REGIONAL COURT IN WARSAW, POLAND||Respondent|
(Transcript of the Handed Down Judgment of
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Miss Hannah Hinton (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 25th February, 2015
Crown Copyright ©
Mr Justice Holroyde :
"(3) The conditions are that
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
"In our view Beatson LJ was correct in suggesting that it is the "review" approach that should be taken by this court when it is considering an appeal from the conclusion of the District Judge on an issue of Article 8 "proportionality" in an extradition case. Under section 27(3) of the EA this court can only allow an appeal if it concludes that the "appropriate judge" should have decided a question before him at the extradition hearing differently. In this context the relevant "question" is whether the extradition of the requested person would be disproportionate to the interference it would have with his (and, if relevant, his family's) Article 8 rights. If, as we believe, the correct approach on appeal is one of review, then we think this court should not interfere simply because it takes a different view overall of the value-judgment that the District Judge has made or even the weight that he has attached to one or more individual factors which he took into account in reaching that overall value-judgment. In our judgment, generally speaking and in cases where no question of "fresh evidence" arises on an appeal on "proportionality", a successful challenge can only be mounted if it is demonstrated, on review, that the judge below (i) misapplied the well established legal principles, or (ii) made a relevant finding of fact that no reasonable judge could have reached on the evidence, which had a material effect on the value-judgment, or (iii) failed to take into account a relevant fact or factor, or took into account an irrelevant fact or factor, or (iv) reached a conclusion overall that was irrational or perverse. "
"(3) If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge.
(4) If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20."
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
"(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
"I am satisfied that the proper interpretation of section 20(3) of the 2003 Act requires at a minimum that a trial process must have been initiated from which the appellant has deliberately absented himself. It is not enough that he should be arrested in circumstances in which a trial is likely or even inevitable."
" did not deliberately absent himself from his trial. What happened was that he made it difficult or impossible for the prosecuting authorities to serve him with the documents which would have notified him of the fact, date and place of the trial. If he had been entitled unequivocally to a right of retrial or to have his case reheard on the merits of the appeal his extradition could have been ordered."
" evidence that Article 6 has been incorporated into the law of the requesting state and that that state recognises the case law of the European Court of Human Rights supports a finding that the requirement of section 20(5) of the 2003 Act is satisfied. the requested person must adduce some evidence at least which raises an issue that the guarantee in section 20(5) might not be met in the requesting state. It is not for the requesting state to prove affirmatively in the absence of such evidence that the guarantee will not be met."
I respectfully agree with that decision.
"(1) If the judge is required to proceed under this section (by virtue of section . . . 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued."
i) The Appellant's evidence that, whilst he knew he had been made subject to a suspended sentence, he was not aware until these extradition proceedings that the sentence had been ordered to take effect, and not aware why such an order had been made.
ii) The Appellant's evidence that the only condition of his suspended sentence was that he should not reoffend, and that in any event he had told his probation officer of his intention to go to the UK and left a contact address.
iii) The absence of any documentary evidence to the effect that the Appellant was not permitted to leave Poland during the operational period of the suspended sentence.
iv) The fact that the Appellant was engaged in correspondence with the Polish consulate in 2009-10, and later with the court in Warsaw, from which it could be inferred that the Polish court knew where he was but took no steps to require him to return to serve his sentence.
"In any event, I accept the Judicial Authority's evidence that he did not tell the investigating authority or the judicial authority of his address in the UK. The address that is set out in the Further Information is his registered address in Poland. Equally nothing in the Further Information indicates that "at a minimum a trial process must have been initiated". Therefore although satisfied that Mr Pogorzelski was not present when tried and convicted in absence, I am not satisfied so I am sure he deliberately absented himself from his trial. Therefore I have to look at whether he has a right to a retrial.
42. Poland is a signatory to the Council Framework Decision of 2002 and I have no doubt it will follow its obligations as set out in Article 4A about a retrial. Therefore I am satisfied that Mr Pogorzelski will be entitled to a retrial or (on appeal) to a review amounting to a retrial. I now turn to section 21"
i) In answer to the request to indicate if the Appellant appeared in person at his trial for offences 3, the Requesting Authority has stated
"No, the person did not appear in person at the trial resulting in the decision. "
ii) The form then requires confirmation of the existence of one of a number of options. The Requesting Authority has deleted the first four of these options, but has left intact the fifth, so as to state the following:
"e) the person was not personally served with the decision, but the person will be personally served with the decision without delay after the surrender."
iii) Details are then given of the court having posted copies of the judgment and sentence to the Appellant's address in Warsaw, all of which were returned uncollected. It should be noted that in relation to the judgment of 25th November 2010 this part of the form says:
"The judgment became final and non-appealable on 1 February 2011."
iv) However, in a continuation of option (e) the printed form goes on to say:
"AND when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has a right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, AND the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be days."
It is important to note that all of those words have been struck through by the requesting authority.
" generally he will not have any right to a retrial. However he can apply for cassation or he can submit for reopening of the hearing as the extraordinary remedy at law. Both the cassation application and submission for instituting a trial de novo are subject to the provision of so-called obligatory assistance of an advocate."
That information was given in response to questions relating to EAW 2, but its terms would appear to be applicable to EAW 3.
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others"
"We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."
i) The long passage of time since the Appellant's commission of Offences 1 and 2, and the fact that neither of those offences was particularly serious.
ii) The fact that in the intervening years the Appellant has led a law-abiding life in this country and has worked to support his family.
iii) The serious effect on his partner and his children if he is extradited to Poland and has to serve a significant period of time in prison: it is likely to be impossible for his partner to be able to afford to maintain their present home in his absence, and there is no guarantee that he will be able to obtain employment when he returns to this country. The partner is not in entirely good health, and there are no family or close friends to whom she can turn for assistance.
"If Mr Pogorzelski were extradited there would be hardship on the family but the children have their mother and no doubt the State would assist the family if Ms Praczyk could not work."
"When resistance to extradition is advanced on the basis of the article 8 entitlements of dependent children and the interests of society in their welfare, it should only be in very rare cases that extradition may properly be avoided if, given the same broadly similar facts, and after making proportionate allowance as we do for the interests of dependent children, the sentencing courts here would nevertheless be likely to impose an immediate custodial sentence: any other approach would be inconsistent with the principles of international comity. At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition. It certainly does not follow that extradition should be refused just because the sentencing court in this country would not order an immediate custodial sentence: however it would become relevant to the decision if the interests of a child or children might tip the sentencing scale here so as to reduce what would otherwise be an immediate custodial sentence in favour of a non-custodial sentence (including a suspended sentence)."