QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Robert Ulaszonek
|Polish Judicial Authority
Mr Jonathan Swain (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 18 September
Crown Copyright ©
Mrs Justice Whipple:
i) One accusation matter, Case number III K 279/03, relating to an allegation that the Appellant, acting with others, had assaulted the complainant using a baseball bat; the complainant was struck repeatedly with the weapon and as a result he suffered multiple injuries. The enforceable decision was a temporary arrest warrant issued on 19 March 2003 and the maximum sentence was 8 years imprisonment.
ii) Five conviction matters with sentences imposed, as follows:
a) Case number III K 1566/99 (1 year imprisonment)
b) Case number III K 1894/99 (1 year imprisonment)
c) Case number III K 1001/00 (1 year and 6 months imprisonment)
d) Case number III K 1918/00 (4 years and 6 months imprisonment)
e) Case number III K 1374/01 (3 years and 6 months imprisonment). This related to two offences of domestic burglary.
i) The accusation matter, Case number III K 279/03;
ii) The conviction matter, formerly listed at e), namely Case number III K 1374/01.
"[the EAW] has been partly amended (there were five enforceable judgments, four were removed, one is still valid Case ref no III K 1374/01) and then reissued with a new date. However the number remains the same ie III Kop 114/05. Therefore the EAW in SIS ref no III Kop 114/05 issued on 15/06/2018 and signed by Judge Marzenna Roleder is the only one valid".
"In reference to your letter of 21 June 2018, the Regional Court [Sąd Okręgowy] III Criminal Division in Bialystok kindly informs that the Polish authority did not issue a new European arrest warrant with regard to Robert Ulaszonek; the Polish authorities only modified the arrest warrant of 24 January 2006 by eliminating the following cases: III K 1566/00, III K 1894/99, III K 1001/00 and III K 1918/00 from the arrest warrant with regard to Robert Ulaszonek, these cases were covered by a new cumulative judgment, therefore the arrest warrant of 24 January 2006 is still valid with regard to the cases of the District Public Prosecutor's Office Bialystok-Północ in Bialystok [Prokuratura Rejonowa Bialystok-Północ w Bialymstoku], case Ds. 752/03 and the District Court in Bialystok [Sąd Rejonowy w Bialymstoku], case III K 1374/01.
Considering the above, there is no need to withdraw the European arrest warrant and have the subject arrested under the arrest warrant of 15 June 2018 because it is not a new arrest warrant, it has been modified and limited with regard to the version of 24 January 2006."
i) There is no such thing as an amended warrant; the "altered warrant" is in fact and law a new warrant.
ii) As a matter of fairness and/or as a matter of procedure, the Appellant is entitled to have his challenge to the new (altered) warrant heard afresh. The Court has no power to allow an appeal "in part". The Court can only dismiss or allow an appeal, there is a binary choice open to the Court. The right answer here is to allow the appeal and quash the extradition order. The Polish authorities can then recommence the extradition process by seeking extradition on the basis of the altered warrant (as, in effect, a new warrant).
i) The decision of DJ Baraitser is not wrong because the original EAW remains valid. The subsequent alteration did not affect the validity of the document which still contains the correct particulars. (In this connection, he relied on Zakrzewski v Poland  UKSC 2.) Accordingly, the extradition order, based on that EAW, remained valid and enforceable.
ii) Alternatively, the altered EAW of 15 June 2018 should be seen as additional information which should be admitted under the principle in Goluchowski v Poland  UKSC 36, relying in particular on Budai v Hungary Judicial Authority  EWHC 229 (Admin).
iii) Further and in any event, the Extradition Act (Multiple Offences) Order 2003 (SI 2003/3150) (the "2003 Order") applied. The 2003 Order provides at article 1 that any reference in the Act to an offence is to be construed as a reference to "offences" in the plural. The effect is that a judge ordering extradition does so separately and severally for every offence specified in the EAW. Therefore, it was open to this Court on an appeal to allow the appeal in relation to those parts of the original EAW which were no longer proceeded with but otherwise to dismiss the appeal, leaving the extradition order in place on the basis of the accusation and conviction offences specified in the altered EAW. This was the approach adopted in analogous circumstances by the Court in Lewicki v Preliminary Investigation Tribunal of Napoli, Italy  EWHC 1160 (Admin) and it was open to the Court here.
" Lord Sumption went on to conclude that it did not follow that nothing could be done if the prescribed particulars in the warrant were, or had become, incorrect but that the remedy had to be found at the stage when the judge was considering whether to extradite. He identified two. The first and main one (at ) being the mutual trust between states party to the Framework Decision, and their ability to withdraw a warrant, or to forward, or to request, further information to correct the position. The second (at  ) being the inherent right of an English Court to ensure that its process is not abused but limited to circumstances in which:
i) The statements in the warrant comprise statutory particulars that are wrong or incomplete in some respect.
ii) The true facts required to correct the error or omission are clear and beyond legitimate dispute (and the application is not being used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant that being a matter for the requesting court).
iii) The error or omission is material to the operation of the statutory scheme which, in some instances, will depend upon its impact on the decision whether or not to order extradition."
" it is, in my view, reasonably arguable, in accordance with Spain v Murua as interpreted by Zakrzewski, that it would be an abuse of process to extradite the Applicant for the nine substantive offences of which he was acquitted as being time-barred".
" it seems to me that, in the particular circumstances of this case, which include the undoubted acquittal of the Applicant by a competent court in relation to the nine substantive offences, and the absence of any undertaking on instructions, or other viable guarantee, as to the non-resurrection of those offences (which creates a risk of prejudice or unfairness), the Zakrzewski criteria (see  above) are met. Accordingly, in my view, in the terms of s.27 (4) of the EA , had this issue been raised before the DJ it would have resulted in him deciding a question before him (namely what offences to order extradition for) differently - in that he would have ordered the Applicant's discharge in relation to each of the nine substantive offences.
 In the result, I would allow the appeal on the limited aspect of Ground 2 that I have indicated, and would quash the order for the Applicant's extradition in relation to the nine substantive offences. However, the order for the Applicant's extradition in relation to the offence of participation in a criminal association stands, and (I underline again) that offence covers the period from December 2005 until the issue of the EAW on 25 February 2010 and, whilst it includes (as is accepted) the conduct underlying the nine substantive offences, it is not confined to that conduct.