Case No: CO/2033/2016 & CO/6005/2016

Neutral Citation Number: [2016] EWHC 3271 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/12/2016

Before :

LORD JUSTICE BURNETT
MR JUSTICE NICOL

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Between :

	Jerzy Zmyslowski	Appellant	
	- and -		
	Regional Court in Lublin, Poland	Respondent

And Between:

Jerzy Zmyslowski
Claimant
-and-

Governor of HMP Wandsworth 
Defendant

-and-

(1) Westminster Magistrates’ Court
(2) Regional Court in Lublin, Poland
(3) National Crime Agency
Interested Parties

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Martin Henley (instructed by Lewis Nedas) for the Appellant and Claimant
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

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Judgment
Mr Justice Nicol : 
1.	There are two matters before the Court. The first is an appeal against the decision of DJ Brennan sitting in Westminster Magistrates Court on 12th April 2016 to order the extradition of the Appellant to Poland in response to an accusation European Arrest Warrant (‘EAW’) to face trial for a total of 6 offences of drug trafficking, swindling and organised crime. The ground of appeal at the beginning of the hearing was that there had been an abuse of the extradition process and, in consequence, the Appellant ought to be discharged. Permission to appeal was granted by Lang J. on 26th July 2016.
2.	The second matter is an application for a writ of habeas corpus for release. The procedure for such applications is now governed by CPR Part 87. The first stage is that the application is considered on paper by a judge. I did so on 5th December 2016. In accordance with r.87.4(1) (b) and (c) I directed that the application should be considered at a hearing by a Divisional Court and at the same time as the extradition appeal.
3.	As I have said, the Polish authorities wish to try the Appellant on 6 charges. In summary, they are as follows:
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
4.	The extradition hearing before the District Judge took place on 17th March 2016. Objection was taken to the form of the EAW. It is a requirement by Extradition Act 2003 (‘EA’) s.2(2) and s.2(4)(d) that the warrant give particulars of the sentence which may be imposed for the offence. Where, as in the present case, the warrant seeks the return of the requested person on more than one charge, each offence must be treated as a separate warrant – see EA 2003 (Multiple Offences) Order 2003 SI 2003 No 3150. Consequently, to be valid, the warrant had to specify the maximum sentence for each of the 6 offences. In the present case the warrant said that the maximum sentence was 15 years. That was correct for offences II and III (i.e. the drug importation offences). It was not correct for the other four offences. It is convenient to refer to the EAW in this form as ‘EAW1’. It had been issued on 16th July 2013. The National Crime Agency (‘NCA’) has been designated as an authority to certify that the authority which issued the warrant has the functions of issuing arrest warrants in a category 1 territory. Poland is a category 1 territory. The NCA had certified EAW 1 on 11th September 2015.
5.	The District Judge reserved his decision. He was impressed by the Appellant’s argument that EAW1 was deficient because it did not specify the maximum sentence for each of the 6 offences. In a draft decision, which he prepared for handing down on 12th April 2016, he indicated that he was minded to discharge the Appellant on charges I, IV, V and VI and order his extradition only on charges II and III.
6.	However, a reviewing lawyer within the CPS had previously spotted that there might be a problem with the warrant. On 29th February 2016 she wrote to the Polish Judicial Authority seeking clarification of the maximum sentences for each of the offences. The Judicial Authority responded on 9th March 2016 by saying: for charge I it was 5 years; for charges II and III it was 15 years; for charges IV & V it was 10 years; and for charge VI it was 10 years. The Polish Judicial Authority also issued a further EAW (or modified the existing EAW) setting out these maxima. Again it is convenient to refer to the EAW in this form as ‘EAW2’. That, too, was dated 9th March 2016. EAW2 was sent to the NCA who certified it on 16th March 2016.
7.	None of these events was communicated to the District Judge or to the Appellant at the hearing which took place on 17th March 2016. Ms Pottle, who then as now, represents the Polish authority, was unaware of them.
8.	The District Judge had said that he would hand down his decision on 12th April 2016. Before then and on 30th March 2016 the NCA wrote to the CPS (among others) and said, 
‘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?...’
9.	On 6th April 2016 the reviewing lawyer wrote to the Appellant’s representatives and told them that the EAW had been re-issued and the Appellant would be brought to court so that he could be arrested on EAW2.
10.	On 12th April 2016, the Appellant was produced at court. He was arrested on EAW2. The Court was told that EAW1 had been withdrawn and the Appellant was discharged pursuant to EA s.41. The Appellant, having been arrested on EAW2 and there being no bars to his extradition, the DJ ordered his extradition on that warrant.
11.	When Mr Henley drafted his further grounds of appeal on 8th May 2016, the precise sequence of events and relationship between EAW1 and EAW2 was still somewhat unclear. Mr Henley argued that there were three possible scenarios:
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.
12.	In a statement dated 8th September 2016, the Polish prosecutor said that the original EAW of July 2013 had been modified on 9th March 2016. Furthermore, the database on the Schengen Information System had also been amended and so there was no risk of the Appellant facing multiple arrests or there being confusion as between the original and the amended EAW. Any ambiguity as to whether there had been one or two warrants was, Mr Henley submitted, removed by yet further information from the Polish prosecutor dated 2nd November 2016.
13.	It was when this statement was disclosed that the Appellant’s representatives issued the application for habeas corpus. The argument is simple. If there is but a single EAW, then the Appellant has been discharged from that by the DJ’s decision of 12th April 2016. By EA s.213(1)(b) a Part 1 warrant is disposed of when the person in respect of the warrant is taken to be discharged. When the District Judge came to order the Appellant’s extradition there was no longer any jurisdiction to do so or to authorise his detention and he must be released. 
14.	When these matters came on for hearing, Mr Henley applied to amend his grounds of appeal in the appeal against the extradition order, so as to advance the Appellant’s case, as I have just summarised it in that context as well. His additional ground asserted that the District Judge erred in law. Since there was only one EAW and since the DJ had discharged the Appellant from that single warrant he had no further jurisdiction to order the Appellant’s extradition on the same warrant.
15.	In developing this further ground of appeal, Mr Henley took us to s.41(1) which says, 
‘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.’
16.	A designated authority is defined by s.2(9) and there is no dispute that for present purposes the authority in question was the NCA. The NCA, of course, is not a party to the extradition hearing. However, as I have shown, on 30th March 2016 the NCA asked the CPS to notify the DJ that EAW1 should be discharged. Implicitly, the CPS was instructed to inform the District Judge that EAW1 had been withdrawn.
17.	Mr Henley emphasises, that s.41(1) is triggered if the appropriate judge ‘is informed’ that the warrant has been withdrawn. It is immaterial, he argues, whether the information is correct or incorrect. The section will still apply and, by s.41(3), if the section applies, the District Judge must order the person’s discharge. There can be no appeal against such an order of discharge – see EA s. 28(2). 
18.	Miss Pottle did not dispute that:
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.
19.	However, Ms Pottle argued that what was thereby disposed of was EAW1. EAW2 remained and the District Judge was entitled (and, indeed in the absence of any objection, obliged) to order the Appellant’s extradition on EAW2. It is thus central to her argument that, however the Polish authorities may view the relationship between the two documents, for the purposes of the English courts, they were two warrants and each could lead to a different conclusion.
20.	I agree with Ms Pottle. Section 10(1) of the EA stipulates what is to happen at an extradition hearing. It is implicit that the District Judge must consider whether the person before him is a person ‘in respect of whom a part 1 warrant is issued.’  As Lord Hope said in Office of the King’s Prosecutor, Brussels v Cando Armas  [2005] UKHL 67 at [28],
‘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.   
21.	For these reasons, I reject Mr Henley’s new ground of appeal. 
22.	Nor do I consider that he is entitled to succeed on his abuse of process ground. Ms. Pottle does not dispute the existence of a jurisdiction, in both this court and the magistrates’ court, to refuse to order extradition where there has been an abuse of process. However, the court will only exercise such a power in particular  circumstances. She refers to the decision of the Divisional Court in Belbin v Regional Court at Lille, France  [2015] EWHC 149 (Admin) where Aikens LJ said at [44],
‘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 [97]  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 [36] of Symeou. Moreover, it is clear from the decision of this court in Federal Public Prosecutor, Brussels Belgium v Bartlett [2012] 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.’ 
23.	There can be no doubt that the sequence of events which I have described was unfortunate and confusing. Nonetheless, in my judgment it did not amount to a usurpation of the extradition process. Nor has there been any prejudice to the Appellant in the extradition proceedings. Still less will it cause any prejudice or unfairness to him in Poland after his return. Mr Henley accepted that the Appellant would not face any prejudice in Poland. However, he suggested that the Appellant might be prejudiced if he was to be extradited and then, after the conclusion of the Polish proceedings and after he had served any sentence imposed on him, if he were to travel to a third country and face arrest again on the original EAW. However, I would regard any such risk as illusory. The Polish authorities have said that they have amended the entry on the Schengen Information System, so that in practical terms, there is no risk of him being arrested on the unamended EAW. Besides Article 3(2) of the Framework Decision makes non-execution of an EAW mandatory if, for the same act, the requested person has been finally judged by a Member State. 
24.	As Lang J, said when granting permission to appeal, the position was confusing and needed to be resolved. Now that it has, it can be seen that the necessary features for the abuse of process jurisdiction to be exercised do not exist. Accordingly, I would dismiss the appeal.
25.	Nor would I grant habeas corpus. At the conclusion of the hearing on 12th April 2016 the District Judge ordered the Appellant to be held in custody until his extradition took place. He issued a custody warrant accordingly. I have decided that the District Judge was right to order the Appellant’s extradition and, consequently, he was empowered to remand the Appellant in custody – see EA s.21A(6). However, even if I had come to the opposite conclusion, the warrant issued by the District Judge would have been sufficient authority for the Appellant’s detention until it had been set aside or quashed. Habeas corpus will only lie if there is no authority for the person’s detention. That is not the case now and it was not the case when the application was made.  
26.	For these reasons I would refuse the application for habeas corpus.
Lord Justice Burnett:
27.	I agree.