QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
| MARCIN PODLAS
|- and -
|KOSZALIN DISTRICT COURT POLAND
Nicholas Hearn (instructed by CPS) for the Respondent
Hearing dates: 20/01/2015
Crown Copyright ©
Lord Justice Aikens:
First ground: is the "drink driving" offence identified in EAW 1 one that discloses conduct that would constitute an offence under English law?
"The first offence in EAW 1 relates to an allegation of excess alcohol and a simple calculation (as the Polish figures are clear in their units) shows that his breath reading when driving was the equivalent of 104 micrograms of alcohol in 100 ml of breath, the limit in England being 35 micrograms".
Second Ground: in respect of EAW 2, was the DJ wrong to conclude that the appellant was a "fugitive", so that he was not entitled to argue that his extradition would be "oppressive by reason of the passage of time" under section 14 of the EA?
Third ground, EAW2 only: the DJ wrongly concluded that the appellant had deliberately absented himself from the trial for the purposes of section 20(3) of the EA, so that, as it was accepted that the appellant would have no right of retrial if returned to Poland, the appellant should be discharged with respect to EAW 2 pursuant to section 20(7).
"Decisions rendered following a trial at which the person did not appear in person.
1. The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing a custodial sentence or a detention order, if the person did not appear in person at the trial resulting in the decision, unless the European Arrest Warrant states that the person, in accordance with further procedural requirements defined in the national law of the issuing Member State:
(a) in due time:
(i) either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
(ii) was informed that a decision may be handed down if he or she does not appear for the trial;
(b) being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;
(c) after being served with the decision and being expressly informed about the right to a retrial, or an appeal, in which the person has the 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:
(i) expressly stated that he or she does not contest the decision;
(ii) did not request a retrial or appeal within the applicable time frame;
(d) was not personally served with the decision but:
(i) will be personally served with it without delay after the surrender and will be expressly informed of his or her right to a retrial, or an appeal, in which the person has the 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;
(ii) will be informed of the time frame within which he or she has to request such a retrial or appeal, as mentioned in the relevant European arrest warrant."
"As it happens, our law is capable of being aligned with [the FD 2009] and was for several years thought to be so aligned. It should revert to that position".
Fourth Ground: did the DJ err in concluding that, in relation to both EAWs, the appellant's extradition would be disproportionate to the interference with the appellant's rights to a private and family life under Article 8?
"The right to family life is not an absolute right under the ECHR and the court must carry out a balancing exercise between the impact of extradition on the Article 8 rights of the [requested person] and [his] family and the compelling public interest in extradition. I bear in mind that the interests of children are a primary consideration. I bear in mind the children's ages".