England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2017

Mrs Justice Nicola Davies:

1. The appellant seeks permission to appeal the order of Deputy Senior District Judge Arbuthnot (as she then was) who ordered the extradition of the appellant on 2 September 2016 following a contested extradition hearing on 30 August 2016 pursuant to section 26 of the Extradition Act 2003 ("the 2003 Act"). The extradition of the appellant is sought pursuant to a European arrest warrant ("EAW") issued by the respondent, the District Court in Bydgoszcz, on 29 April 2016 and certified by the National Crime Agency on 10 June 2016.
2. The EAW seeks the surrender of the appellant in order to execute a custodial sentence of 2 years, 11 months and 28 days imprisonment, imposed in respect of ten offences of theft of and from motor vehicles and two offences of the attempted theft of/from motor vehicles. The offences occurred between November 2010 and March 2011, the total value of loss is 292,374 PNL (approximately £58,000). The appellant was arrested on 18 July 2016, he was remanded in custody and has remained in custody throughout the proceedings. The Appellants' Notice was filed and served on 8 September 2016. Permission to appeal was granted by Turner J at an oral renewal hearing on 7 December 2016 having previously been refused on papers by Baker J by an order dated 4 November 2016.
3. The appellant now appeals on the ground that DSDJ Arbuthnot erred in finding that the EAW complies with section 2(6)(b) or (c) of the 2003 Act.

The powers of the High Court on appeal

4. Extradition Act 2003:

"26 Appeal against extradition order

(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

(2) But subsection (1) does not apply if the order is made under section 46 or 48.

(3) An appeal under this section—

(a) may be brought on a question of law or fact, but

(b) lies only with the leave of the High Court.

(4) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.

27 Court's powers on appeal under section 26

(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(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.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

The legal framework

5. Section 2 of the 2003 Act provides, so far as is relevant in this case:

"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—

(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or

(b) the statement referred to in subsection (5) and the information referred to in subsection (6).

…

(5) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is—

(a) particulars of the person's identity;

(b) particulars of the conviction;

(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."

Council Framework Decision of 13 June 2002 – 2002/584/JHA ("FD")

6. Article 1(1) provides:

"1.1. The European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

7. Article 8 – Content and form of the European arrest warrant:

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

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(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;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g) if possible, other consequences of the offence."

8. Article 15 – Surrender decision:

"1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.

2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority."

The European arrest warrant

9. The relevant parts of the EAW are as follows:

Box B of the EAW identifies the decision upon which the warrant is based and states:

"…effective judgment:

…Judgment of the Regional Court in Bydgoszcz dated December 15 2011 in case files reference number IVK566/11; …"

10. Box C relates to indications as to length of sentence and states:

"2. Length of the custodial sentence or any other detention order imposed:

…Judgment of the Regional Court in Bydgoszcz dated December 15 2011 in case files reference number IVK566/11 – 3 (three) years of deprivation of liberty…

3. Remaining sentence to be served:

…Judgment of the Regional Court of Bydgoszcz dated December 15 2011 in case files reference IVK566/11 – 2 (two) years 11 (eleven) months 28 (twenty eight) days."

The hearing before DSDJ Arbuthnot

11. The issue before DSDJ Arbuthnot was whether the decision activating the suspended sentence is the "enforceable judgment" or enforceable judicial decision for the purposes of Article 8(1)(c) of the FD and thus must be particularised pursuant to section 2(6) of the 2003 Act.
12. At [7] of her judgment the District Judge records that:

"The JA evidence consisted of the EAW and a document from the UK Central Authority for the Exchange of Criminal Records which sets out the RP's criminal record in Germany and Poland. This document sets out the date of the sentence and its activation. There is also a document showing the RP's very limited criminal history in this jurisdiction."

13. At [9] of her judgment the District Judge records that the court heard evidence from the appellant who adopted his proof of evidence stating it was true. He told the court that he had been sentenced to a 3 year sentence of imprisonment suspended for 7 years on various conditions. One of the conditions was that he remain in contact with his probation officer. The probation officer had made it a condition that he was to meet her in person and provide her with his full address in the United Kingdom. The appellant had failed to do that. The appellant told the District Judge that he had no idea that the sentence had been activated on 9 May 2014. He gave a number of reasons for this lack of knowledge which were not accepted by the District Judge. At [29] she found it "most likely that he knew that the sentence had been activated or at best he turned a blind eye to the obvious risk of activation. That came across when he said that he had not expected the consequences of non-compliance to be so harsh."
14. Submissions were made on behalf of the judicial authority and the appellant. At [24] the District Judge noted:

"Mr Stansfeld on behalf of the RP submitted that the EAW did not contain details of the activation of the suspended sentence. The case of Goluchowski in the Supreme Court did not consider this argument as by then further information had been received with details of the activation. In this case there is no further information from the EAW. He contended it has to come from the JA in a receivable format. The information obtained is not from the JA, this is from UK Central Authority and that is not in a receivable format."

15. The District Judge noted [25] that Mr Stansfeld also submitted that Article 8(1)(c) of the FD requires evidence of an enforceable judgment which must come within the scope of Articles 1 and 2 of the FD. The enforceable decision has to be the one deciding there is a sentence of imprisonment. Her further record of his submission states:

"It is not in the warrant as all there is in this is the original conviction with a suspended sentence when he was not required to serve a sentence. The decision which made it a 3 year sentence is absent. On reading section 2 in conformity with the FD, the requirement to particularise an enforceable judgment, within Article 1 of the FD, carries across and there is therefore the requirement of section 2 (6)(b) or (e) of the 2003 Act. Particulars of conviction or sentence. Whether falls under either of those matters little, they are both missing."

16. At [30] the District Judge found as follows:

"The sentence was activated on 9 May 2014 and this was confirmed by the court on 6 June 2014 whilst the RP left the country in December 2014. It is not clear from the available information why the sentence was activated in May/June 2014 but I accept the RP had breached the conditions of the suspended sentence before he left Poland. He either must have failed to keep in touch with his probation officer before May/June 2014 or have failed to pay the compensation he owed. The RP in evidence explained that he had not gone to the Post Office to collect his post for a while after his operation but I do not accept that he would have not received any communication at all about the sentence. He had six months in which to find this out, either via his probation officer or the court."

17. The District Judge referred to the authorities of Powierza v District Court, Warszawa, Poland [2013] EWHC 36 (Admin), Mivoslow Mariusz Kaminski v Judicial Authority in Poland [2012] EWHC 280 (Admin) and the decision of Mitting J in Goluchowski v Poland [2015] EWHC 332 (Admin). At paragraph 37 the District Judge stated:

"37. Having considered the cases referred to above I must follow the decision of Mitting J in Goluchowski. It is not only the most recent case on the point but the facts are the same with a failure to set out the suspension of the original sentence. I have received further information which enables me to consider whether there are any bars arising out of the activation of the sentence and there are none. I am assisted by the RP's own evidence that he was given a suspended sentence with conditions which he breached when he failed to give his probation officer an address in the United Kingdom, there is also the matter of unpaid compensation. In fact, of course, he must have breached the conditions of sentence before May/June 2014 when the sentence was activated.

38. The argument fails. I find the EAW complies with the requirements of section 2(2) of the EA."

18. In Goluchowski (above) Mitting J concluded at paragraphs 25, 26, 28 and 30:

"25. In Poland v Wojciechowski [2014] EWHC 4162 (Admin) the Divisional Court held that it was not necessary that a conviction warrant issued by a Polish judicial authority which referred not only to the imposition of a suspended sentence but also to its activation should also refer to the search warrant within the territory for it to be valid. At paragraph 26, Pitchford LJ, with whom Cox J agreed, said the following:

'The domestic warrants, I accept, were not to do with the offences but to do with securing the surrender of the respondent to serve the sentences imposed by the court in the enforceable judgments identified.'

26. It is true that that observation was made in respect of sentences the activation of which were fully described in the European Arrest Warrant but the observation of Pitchford LJ applies, in my judgment, with equal force to a European Arrest Warrant which does not set out the process of activation of a suspended sentence for the simple reason which he identified: that the warrant is not issued "in respect of the offence". It appears to be issued in respect of the intention of the court to ensure that the requested person in fact serves the sentence which has been imposed upon him. It is, in other words, an administrative step which does not found the juridical basis for the issuing of the warrant or, in Lord Mance's words, it is not the warrant "on which the European Arrest Warrant is based", as may well be the case in an accusation case when there is nothing other than a warrant upon which to base the European Arrest Warrant.

…

28. If there had been evidence which had been accepted by the court that Polish law required the issue of a domestic search warrant before a European Arrest Warrant could be issued by the judicial authority then, in Toulson LJ's words, not all of the jurisdictional facts would be stated in the warrant. Because, as I have already observed, there is no such evidence in this case, and nothing which can be derived from the case law to demonstrate that it must be accepted to be the case in any Polish extradition case.

…

30. Under English law, on the basis of a settled statement of the law at this level, it is therefore not required that the European Arrest Warrant should state that a sentence initially suspended was later activated. All that is necessary is that the founding decision upon which the European Arrest Warrant was based, namely the conviction of the appellant and the imposition of a sentence of imprisonment upon him, must be stated on the face of the warrant."

19. Subsequent to the hearing before the District Judge in this case Goluchowski and another was heard in the Supreme Court [2016] UKSC 36. The extradition order was made by the District Judge in this case on 2 September 2016. The judgment in Goluchowski was delivered on 29 June 2016. The certified questions were whether an EAW is defective for the purposes of section 2(6)(c) of the 2003 Act "…if it does not also give particulars of domestic warrants issued in the category 1 territory to enforce that judgment or order within the issuing state." In the case of Goluchowski the further question was:

"… Does the term 'any other warrant issued in the category 1 territory for the person's arrest in respect of the offence' in section 2(6)(c) of the Extradition Act 2003 only require the European arrest warrant to include the conviction of the requested person, or does it, following Poland v Wojciechowski [2014] EWHC 4162 (Admin), require the particularisation of the decision that required the requested person to serve an immediate sentence of imprisonment and was the decision following which it could be said that the requested person was unlawfully at large?"

20. Mr Goluchowski had been the subject of two suspended sentences. The sentences had later been activated and it was common ground that the decisions activating the suspended sentences were not particularised within the EAW. At [44] Lord Mance concluded that it was unnecessary to resolve the point advanced on behalf of the requested person as to whether evidence of an enforceable judgment or other enforceable decisions having the same effect encompasses all judicial judgments or decisions by which the sentences have become enforceable. He did so because the processes by which the judgments were made enforceable had been made clear by subsequently obtained further information.
21. The Supreme Court concluded that all of the EAWs before it were valid for the purposes of section 2(6) of the 2003 Act. Lord Mance concluded that it was unnecessary to resolve the specific questions in order to decide the appeals. However of note is his opinion as set out in paragraphs 43, 44, 45 and 48 of the judgment as follows:

"43. Miss Montgomery submits however that evidence of an enforceable judgment or other enforceable judicial decision having the same effect encompasses all judicial judgments or decisions by virtue of which the sentence has become enforceable. I am not attracted by this view, not least because (i) it could mean that the EAW should set out a quite complex history of court judgments and decisions, whereas article 8.1(c) and box (b) contemplate a single reference, (ii) mutual confidence would seem better served by accepting at face value, at least at an initial stage, an accurate statement that a sentence was (even though it was originally suspended or had been the subject of a conditional release) now 'enforceable' and (iii) it would always be open to an executing state to request further information under article 15, as the United Kingdom prosecuting authorities appear to have done in the present cases.

44. However, it is in my opinion unnecessary to resolve this point in order to decide these appeals. Here, the bases on which and the processes by which the judgments became enforceable are made clear by the subsequently obtained information. Bob-Dogi establishes that an EAW could not be treated as invalid or ineffective merely because that full history did not appear in the EAW itself and only became apparent from information subsequently requested. Bob-Dogi concerned an EAW which was on its face problematic. It is inconceivable that an EAW which was in terms valid could fall to be treated as invalid in the light of subsequent information which confirmed that it did indeed rest on a valid foundation in terms of enforceable court judgment(s) and/or decision(s). That would be perverse."

45. Accordingly, even if a reference to the activating decisions should strictly have been made in the EAWs alongside the reference to the judgment as enforceable, this cannot as a matter of European law mean that the EAWs should be treated as invalid or incapable of being executed. That being so, I consider that the same position must once again carry through into section 2(6) of the 2003 Act. Section 202 must be understood as enabling the same sort of cooperation and regularisation of formal, rather than substantive, defects appearing in an EAW that article 15 of the Framework Decision contemplates.

…

48. Furthermore, and in any event, the present EAWs appear on their face to meet all the requirements of section 2(6). They particularise in each case an enforceable judgment and the sentence passed and due to be served in respect of it. They cannot be challenged on their face: Zakrzewski, cited above. It is only the subsequently obtained information which enables any suggestion that the particulars in the EAWs were incomplete, by providing at the same time full information: see para 35 above. Where, as here, that information shows that the EAWs were in all substantial respects entirely justified, it would be absurd to create the exception to the rule in Zakrzewski which would be involved in setting them aside."

The appeal

22. On behalf of the appellant Mr Stansfeld submits that there are two questions for the court to consider:

i) What is the meaning of an "enforceable judgment" in Article 8(1)(c) of the FD?

ii) If an "enforceable judgment" in Article 8(1)(c) bears the meaning of a decision following which an immediate sentence of imprisonment must be served, therefore including any decision activating a suspended sentence, what is the consequence pursuant to section 2 of the 2003 Act upon the EAW seeking the appellant's extradition?

23. However, following the hearing before the District Judge further information was sought regarding the activation of the suspended sentence. The response was a letter dated 17 January 2017 from the Deputy President of the Regional Court in Bydgoszcz and stamped with the seal of the court. It states:

"By the decision of the Regional Court in Bydgoszcz dated May 9 2014 in connection with a case file IVKO1365/13 there was ordered the enforcement of the term of imprisonment to Arkadiusz Straszewski who had been properly notified of the session date during which the court issued a decision (he failed to collect the correspondence with two delivery notifications sent at the address, provided to the court as his address of domicile and for correspondence.

Under Article 75.2 of the Penal Code, the court ordered the enforcement of the sentence of imprisonment against Arkadiusz Straszewski for the following reasons:

- Commission within the probationary period of further offences, specified in the Accountancy Act

- Failure to repair damage to the victims and lack of interest on his part to agree the conditions to redress the balance with the aggrieved

- Breaking contact with supervising his probationary officer, leaving his usual place of residence and failure to notify the court of his present address of stay."

This evidence was served upon the appellant in January 2017.

24. The respondent applies to the court to admit the new evidence. With regard to Szombathely City Court and others v Roland and Kalman Fenyvesi [2009] EWHC 231 (Admin), Ms Townshend makes the following submissions on behalf of the respondent:

i) The ordinary "Fenyvesi" rules do not apply to respondents;

ii) Even if they did, the evidence is likely to be decisive and therefore should be admitted; and

iii) Following Bob-Dogi and Goluchowski the court is required to seek further information where necessary and therefore is bound to take it into account even at this late stage.

25. Section 202 of the 2003 Act permits documents to be adduced as evidence by the judicial authority as follows:

"202 Receivable documents

(1) A Part 1 warrant may be received in evidence in proceedings under this Act.

(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—

(a) it purports to be signed by a judge, magistrate or officer of the territory;

(aa) it purports to be certified, whether by seal or otherwise, by the Ministry or Department of the territory responsible for justice or for foreign affairs;

(b) it purports to be authenticated by the oath or affirmation of a witness.

(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act."

26. Further it is contended on behalf of the respondent that pursuant to Article 15 of the FD it is open to the court to seek the provision of further information.
27. On behalf of the appellant, Mr Stansfeld opposes the application. He accepts that the potential deficiency in the appellant's EAW could be corrected by further information because it was the same potential deficiency that the Supreme Court corrected with further information in Gulochowski & SAS v Poland [2016] 1 WLR 2665. However, it is the appellant's contention that this evidence could have been adduced at the extradition hearing but was not. It is only since permission was granted that this evidence has been obtained, in order to prevent a successful appeal. As the evidence was available at the time of the extradition hearing it cannot meet the statutory criteria identified in section 27(4)(a) and (b) of the 2003 Act. Reliance is also placed on the authority of Mohammed Elashmawy v Court of Brescia, Italy and Fabio Riva, Court of Taranto, Italy [2015] EWHC 28 (Admin) where Aikens LJ stated at [82]:

"It seems to us that the circumstances of this case cannot be equated exactly with those in Fenyvesi or other cases in which one side or another attempts to put in 'new' material in the hope of succeeding on appeal on the basis of that material. Nonetheless, we think that the analysis in the Fenyvesi decision is consistent with the concept that the appellate court should not allow parties carte blanche to adduce new material to bolster an existing decision in that party's favour, particularly if the material was 'available' in the court below in the sense discussed in Fenyvesi. Taking that as our test, the letter of 4 December 2013 dealing with the Rancadore case was available to be put before the judge. We would have been inclined to exclude it but for the fact that it appears that a letter in identical terms dated 15 November 2013 dealing with the Badre case was before the judge and a further identical letter dated 17 December 2013 was before DJ Zani in Mr Riva's case. Thus both the judge (in the appellant's case) and DJ Zani were able to take the contents of those letters into account in assessing the conditions in Italian prisons. ..."

28. It is further submitted by Mr Stansfeld that the Divisional Court cannot receive the further evidence pursuant to Article 15 of the FD as it is not the "executing judicial authority". This term is defined in Article 6(2) of the FD:

"The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State."

For these purposes the executing judicial authority in England and Wales is a District Judge (Magistrates' Court) designated by the Lord Chancellor. This is the Westminster Magistrates' Court. It is submitted that it follows that a Divisional Court does not fall within the definition of executing judicial authority for the purposes of Article 15.

29. Mr Stansfeld nevertheless accepted that this court has a discretion to admit evidence but sought to limit that discretion to cases where a refusal to admit may result in a breach of an appellant's human rights or where the court requires information as to the law.

Discussion

30. Section 27(4) does not apply to this case as the evidence of activation of the suspended sentence in the form now produced by the judicial authority could have been made available at the time of the extradition hearing. Nevertheless, as Aikens LJ pointed out in Elashmawy, there should be limits on the extent to which it is open to parties to adduce further evidence to bolster their cases on appeal.
31. The Divisional Court may not be the executing authority within Article 15. However, Article 15 imposes a duty to act in certain circumstances and does not limit the circumstances in which courts in the requested State may seek further information.
32. The Divisional Court frequently seeks further information from requesting judicial authorities. Counsel for the appellant accepts that the court has a power to do so. That power is not limited in the way he suggests.
33. Before the District Judge it was accepted that the original sentence was a suspended sentence and that the appellant was in breach of its conditions. There was, in addition, evidence from an extraneous source as to how the original sentence came to be implemented. As the evidence was not in the form required by section 202 of the 2003 Act it was not a "receivable document". The challenge raised by Mr Stansfeld on behalf of the appellant was not as to the accuracy of the information but to its source. It was evidence upon which the appellant was questioned and was taken into account by the judge in making her decision.
34. In the circumstances of the present case I am satisfied that the interests of justice require that this court should admit the new evidence. To exclude such evidence would be to impose an artificiality upon these proceedings which is inconsistent with the concept of justice.
35. Accordingly, I would admit the evidence which has the effect of curing any deficiency in the EAW. Mr Stansfeld accepted that in the event that the evidence was admitted that would conclusively end the appeal.
36. In these circumstances, we do not need to decide the substantive point left open by the Supreme Court. Accordingly this appeal is dismissed.

Lord Justice Lloyd Jones: I agree.