QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NICOL
| Jerzy Zmyslowski
|- and -
|Regional Court in Lublin, Poland
Emilie Pottle (instructed by Extradition Unit CPS) for the Respondent and 2nd Interested Party
Ben Keith (instructed by NCA) for the 3rd Interested Party
Hearing dates: 8th December 2016
Crown Copyright ©
Mr Justice Nicol :
i) Offence I - participation in an organised crime group involved in smuggling narcotics across Europe.
ii) Offence II – importation of 1,200 kilograms of marijuana
iii) Offence III - importation of 10.1 kilos of marijuana
iv) Offence IV - fraudulently obtaining a loan.
v) Offence V – fraudulently obtaining a loan
vi) Offence VI – possession of narcotics with intent to supply
'Poland have reissued the EAW for Zmysolwski, reference IV KOP 163-13. This was provided to the prosecution to execute at his last hearing on 17/03/2016. Unfortunately, this did not occur. Zmyslowski is currently remanded in custody in HMP Wandsworth.
Lincolnshire Police – Can you please arrange for his production to Westminster Magistrates Court before 12/04/2016 in order for the reissued warrant to be executed?
CPS – Can you please arrange for the ressied EAW to be executed at Westminster and previous version discharged when he is produced?...'
i) EAW2 was not a separate warrant but a modification of EAW1. Mr Henley argued that such modification was not possible in the EAW system. There was the risk that the modified and unmodified versions of the EAW were in circulation. That could give rise to confusion especially if there was an attempt to execute the warrants in different countries. The Framework Decision (2005/584/JHA) did not permit modification of an EAW.
ii) EAW1 and EAW2 were both in existence. Mr Henley argued that this would have the same vices as scenario (i).
iii) EAW1 was withdrawn when EAW2 was issued. Mr Henley argued that in this case there had been an abuse of process. The Appellant had remained in custody even though the warrant on which he had been arrested had been withdrawn.
'This section applies if at any time in the relevant period the appropriate judge is informed by the designated authority that a Part 1 warrant issued in respect of a person has been withdrawn.'
i) The NCA had authorised the CPS to give information to the District Judge on its behalf.
ii) Explicitly or implicitly, this information included the information that EAW1 had been withdrawn.
iii) In those circumstances, the District Judge was obliged to order the Appellant's discharge.
iv) The District Judge had discharged the Appellant and that disposed of the warrant which was then being considered.
'If the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it.'
The characteristics of a Part 1 warrant are set out in EA s.2. It must be issued by the judicial authority of a category 1 territory. In this case EAW1 was signed by Alicja Bucznska, a judge of the Appellate Court in the Regional Court in Lublin on 16th July 2013. EAW2 was signed by a different judge, Jaroslaw Kowalski, a judge of the Regional Court in Lublin, on 9th March 2016. Although a certificate is not mandatory for validity of a Part 1 warrant (s.2(7) says that a designated authority may issue a certificate if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory), they regularly are. EAW1 was certified by the NCA on 11th September 2015. EAW2 was certified by the NCA on 16th March 2016. As I have already explained, in relation to some of the charges, EAW1 failed to satisfy all of the requirements of a Part 1 warrant because it did not include the maximum sentences for each of them. EAW2 did not have that deficiency. It may be, as the Polish Prosecutor explained in the letters of 8th September 2016 and 2nd November 2016, that the Polish authorities saw both EAW1 and EAW2 as springing from the same decision to issue a European Arrest Warrant. Mr Henley observes that the two EAWs both had the same Polish reference number. However, it is not for the District Judge to attempt to wrestle with niceties of Polish criminal procedure. His or her task is to proceed through the carefully prescribed stages of the EA. On 12th April 2016, the Appellant appeared before him, having been arrested on EAW2. EAW2 had all the features of a valid Part 1 warrant. EAW2 (unlike EAW1) had not been disposed of. Accordingly the District Judge was obliged to proceed in accordance with sections 10 and following of the EA.
'However, whether it is the prosecuting authority's behaviour or that of the entity that constitutes the judicial authority of the requesting state that is being criticised, it will only amount to an abuse of the extradition process if the statutory regime in the EA is being "usurped" (see  of Bermingham). It would, for example be "usurped" by bad faith on the part of the Judicial Authority in the extradition proceedings or a deliberate manipulation of the extradition process. But any issues relating to the internal procedures of the requesting state are outside the implied abuse of process jurisdiction concerning extradition proceedings, see  of Symeou. Moreover, it is clear from the decision of this court in Federal Public Prosecutor, Brussels Belgium v Bartlett  EWHC 2480 (Admin), this "usurpation" of the statutory extradition regime has to result in the extradition being "unfair" and "unjust" to the requested person. In this regard it has also to be shown that, as a result of the "usurpation" of the statutory regime, the requested person will be unfairly prejudiced in the subsequent challenge to extradition in this country or unfairly prejudiced in the proceedings in the requesting country if surrendered there.'
Lord Justice Burnett: