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
		23 March 2015

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge McPhee, who on 2 December 2014 ordered that the appellant be extradited to Poland in order to serve a sentence totalling some 1 year and 5 months, which was the balance of a 2-year sentence which had been imposed in respect of five offences of provision of cannabis to different individuals.
2. The offences in question occurred between 1998 and 2000, so are obviously exceedingly stale. The quantities supplied over the periods were individually relatively small quantities of what is described as dried cannabis. What makes it the more serious is that two of those to whom the appellant supplied the cannabis were minors. However, he is now 38 years old, he was then in his early 20s, and he, in fact, having been sentenced, as I have said, to 2 years, had served some 7 months or so on remand and so this is not a question of his not having received punishment for the offences which he had committed.
3. There has been provided since the hearing before the District Judge further information which establishes the circumstances and the chronology in the way in which the sentences were dealt with in Poland. The warrant itself, in heading B, which sets out the decision on which the warrant is based, refers to an enforceable judgment of the Regional Court in Opole of 2 July 2004 and it is said that that was a sentence of 2 years of custody, albeit according to the warrant the length of the custodial sentence or detention order imposed was 18 months, not 2 years and it is said that the remaining amount was 1 year 4 months and 25 days. I am not sure that that is perhaps entirely material because it is common ground that the sentence was 2 years and there is the balance of something just under 1 year and 5 months left to serve.
4. On 23 February, the Polish judicial authority, that is in the form of the President of the relevant Criminal Division, sent further information. This shows that that on 2 July 2004 the appellant was sentenced by final judgment of the Regional Court in Opole to 2 years' imprisonment, execution of which had been conditionally suspended for a probation period of 5 years. The prosecutor decided that that sentence was too lenient and appealed it and on 5 October 2004 the Court of Appeal in Wroclaw varied the judgment of the Regional Court and ruled that there should be an absolute imprisonment of 2 years thus making it more severe in removing the suspension which had been imposed by the lower court, and it is that judgment and that sentence that effectively is the one which is to be now served.
5. However, it is clear that, for whatever reason, that absolute imprisonment was not to have immediate effect because the appellant was, between 2004 and 2006, in Poland for much of the time. He did spend some time in Germany but he visited Poland regularly and there is evidence which was produced before the District Judge, unfortunately not in translation and so the District Judge refused to consider it, but which shows that on dates in 2005 he clearly was in Poland.
6. Be that as it may, in November 2006 an application was made on behalf of the appellant to postpone the activation of the 2-year sentence based upon, as it was put, his business affairs. He was in financial difficulties and wanted to sort those out. According to the information, that application was made on his behalf by an advocate. He said in evidence that he was wholly unaware that that application was being made and he had not instructed any advocate to appear on his behalf. That was difficult to believe because it is plain that the application was one which was in his interests. As it happens, we knows that in November 2006 he had obtained a passport to enable him to travel out of Poland and it seems highly unlikely, to put it no higher, that he was unaware of this application. The result of the application was that the court decided to postpone the activation of the sentence until June 2007.
7. The appellant had come to this country at the end of 2006. He had not, as he admitted, informed the authorities in Poland that he was coming to the United Kingdom and it is the case, that was accepted by the District Judge, on behalf of the Polish authorities that they looked for him but were unable to discover his whereabouts until 2014. That discovery resulted from his having gone to Slovakia and having informed the authorities there of his presence and the authorities in Slovakia passed that information on to Poland. It is not necessary to go into the whys and wherefores of that. That is apparently what happened and led to the warrant being executed in this country and then his appearance before the District Judge.
8. The information that I have referred to in relation to the sentences imposed by the two courts in Poland was not before the District Judge. But Ms Brown, in my judgment correctly, does not challenge its admissibility before me because clearly it goes to the jurisdiction of the court in the sense that it is submitted by Mr Seifert that the warrant was bad on its face and therefore should not have resulted in the return of the appellant.
9. Reliance is placed on section 2(6)(c) of the Extradition Act. This provides, in relation to conviction cases, that the arrest warrant must contain particular information and the information in 2(6)(c) is:

"Particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence."

That is an unfortunate provision because it is wholly unclear precisely to what it is supposed to refer. In relation to accusation cases, the decision of the Supreme Court has made clear that any other warrant issued in the category 1 territory must refer to a domestic warrant and not to a European Arrest Warrant, and that perhaps is a not altogether surprising decision. However, so far as conviction cases are concerned, reference to the original arrest warrant which led to the conviction is wholly immaterial; what matters is, one would have thought, the decision which triggered the issue of the arrest warrant and that would be an enforceable judgment, of one sort or another, which meant that the sentence had to be served. It might have been by way of an arrest warrant in a given case.

10. That is what the Framework Decision refers to in Article 8(1)(c) because it provides:

"The European Arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

...

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2."

11. There have been two cases in which this point has been raised in relation to the usual Polish practice that the arrest warrant refers to a sentence imposed which is a suspended sentence and does not refer to the activation of that suspended sentence, and the jurisprudence in this country has accepted that all that need be referred to in the warrant is the original sentence imposed, which is the sentence which has subsequently been activated but is the sentence which results in the issue of the warrant.
12. So much was decided by the Divisional Court in Regional Court in Tarnow Poland v Wojciechowski [2014] EWHC 4162 (Admin) and a subsequent decision of Mitting J in a case which followed the reasoning in that case, and indeed it is not reasoning that is peculiar to that case. In both those, a point of law has been certified for the Supreme Court to consider, albeit permission has been refused and the decision of the Supreme Court on whether they will take the cases has not yet been given.
13. Ms Brown submits that in the circumstances I ought not to decide that point because it is necessary to wait and see what the Supreme Court does. However, this case is on its facts somewhat different because it is plain from the history that I have referred to that the sentence which is to be implemented is not the original sentence of 2 July 2004 which was suspended but the sentence of the Appeal Court which removed the suspension, and that is the effective sentence which has led to the issue of this warrant.
14. If a warrant does not contain information which is required by virtue of the Act or the Framework Decision, the courts have decided that the warrant is to be regarded as ineffective. It may be in many cases that such a defect could be regarded as not substantial, merely technical but nonetheless it goes to the jurisdiction in relation to the application of European Arrest Warrants because one must always bear in mind that one is dealing with the liberty of the individual and thus everything that needs to be done should be done.
15. It seems to me in the circumstances of this case that the situation is not the same as in the cases which are going to be considered by the Supreme Court because it is plain on the facts that the decision which matters is not that in the warrant, namely the original decision of the court imposing the suspended sentence, but the decision of the Appeal Court which removed the suspension.
16. However, that is not the only matter raised in this appeal. There has been a very substantial delay. Mr Seifert refers to the delay between October 2004, when the sentence was made absolute, and November 2006, when the application to postpone it further was made because it was not until November 2006 that the decision was made that the appellant should actually serve the remaining part of the sentence.
17. No explanation has been given for that delay and certainly during a substantial part of that time the appellant was in Poland. He has since 2007 been a fugitive, in the sense that he must be taken to have known, albeit he has denied it but the District Judge did not accept that and I am not surprised that the District Judge did not accept that but since 2007, more than 7 years have passed. True it is that the appellant did not inform the authorities that he was in the United Kingdom, nevertheless he has not kept himself hidden from the authorities here and he has travelled to Europe, as we know from the fact that he was in Bratislava and it was from Bratislava that the information was in due course given to the Polish authorities.
18. A very long time indeed has passed. This is not a case where he has a family. On the other hand, he has settled here now for over 8 years and he has worked consistently and there is nothing against him in his behaviour in this jurisdiction. He has, as I have said, served a period in custody of something over 7 months, albeit these were not trivial offences by any means and clearly the custody threshold in this country would have been crossed, particularly as two of the recipients of the cannabis were minors, nonetheless, the quantities were not great and they were offences committed when he was very much a young man and he has clearly grown out of any offending.
19. This is, as it seems to me, one of those rare cases when one can say that the combination of the defect in the warrant and lapse of time, albeit I accept that he was to an extent responsible for some of the lapse of time in that he had not let the authorities in Poland know that he was coming to this country, nonetheless there was substantial delay before that which has been unexplained and in all the circumstances on both grounds I take the view that this is a case in which this appeal should be allowed.
20. MS BROWN: My Lord, given the situation with the case that those instructing me wish to consider --
21. MR JUSTICE COLLINS: No, because that is not the whole basis. I have also decided in his favour on Article 8, so I will not certify.
22. MR SEIFERT: My Lord, there was an order at the extradition hearing for costs in the sum of £200. I assume that given that the decision of the District Judge is now quashed, that the ancillary order --
23. MR JUSTICE COLLINS: Yes, that inevitably goes.
24. MR SEIFERT: I am grateful.