QUEEN'S BENCH DIVISION
IN AN APPEAL PURSUANT TO ss.26 & 27 OF THE EXTRADITION ACT 2003
Strand, London, WC2A 2LL
B e f o r e :
| ADRIAN PRYSTAJ
|- and -
|CIRCUIT COURT OF ZIELONA GORA, POLAND
Saorise Townshend (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 19 March 2019
Crown Copyright ©
Mr Justice Supperstone :
Relevant Factual Background
Grounds of Appeal
Ground 2: Speciality (s.17 of the 2003 Act)
"1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender.
2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
3. Paragraph 2 does not apply in the following cases:
(a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel;
(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.
4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request.
For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein."
Extradition Act 2003
(1) A person's extradition to a category 1 territory is barred by reason of speciality if (and only if) there are no speciality arrangements with the category 1 territory.
(2) There are speciality arrangements with a category 1 territory if, under the law of that territory or arrangements made between it and the United Kingdom, a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if—
(a) the offence is one falling within sub-section (3), or
(b) the condition in sub-section (4) is satisfied.
(3) The offences are—
(a) the offence in respect of which the person is extradited;
(b) an extradition offence disclosed by the same facts as that offence;
(c) an extradition offence in respect of which the appropriate judge gives his consent under section 55 to the person being dealt with;
(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.
(4) The condition is that the person is given an opportunity to leave the category 1 territory and—
(a) he does not do so before the end of the permitted period, or
(b) if he does so before the end of the permitted period, he returns there.
(5) The permitted period is 45 days starting with the day on which the person arrives in the category 1 territory.
(6) Arrangements made with the category 1 territory which is a Commonwealth country or a British Overseas Territory may be made for a particular case or more generally.
(7) A certificate issued by or under the authority of the Secretary of State confirming the existence of arrangements with a category 1 territory which is a Commonwealth country or a British Overseas Territory and stating the terms of the arrangements is conclusive evidence of those matters."
"54. Request for consent to other offence being dealt with
(1) This section applies if—
(a) a person is extradited to a category 1 territory in respect of an offence in accordance with this Part;
(b) the appropriate judge receives a request for consent to the person being dealt with in the territory for another offence;
(c) the request is certified under this section by the designated authority.
(2) The designated authority may certify a request for consent under this section if it believes that the authority making the request—
(a) is a judicial authority of the territory, and
(b) has the function of making requests for the consent referred to in sub-section (1)(b) in that territory.
(3) A certificate under sub-section (2) must certify that the authority making the request falls within paragraphs (a) and (b) of that sub-section.
(4) The judge must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so.
(5) The consent hearing must begin before the end of the required period, which is 21 days starting with the day on which the request for consent is received by the designated authority.
(6) The judge may extend the required period if he believes it to be in the interests of justice to do so; and this sub-section may apply more than once.
(7) The power in sub-section (6) may be exercised even after the end of the required period.
(8) If the consent hearing does not begin before the end of the required period and the judge does not exercise the power in sub-section (6) to extend the period, he must refuse consent.
(9) The judge may at any time adjourn the consent hearing.
(10) The consent hearing is the hearing at which the judge is to consider the request for consent.
55. Questions for decision at consent hearing
(1) At the consent hearing under section 54 the judge must decide whether consent is required to the person being dealt with in the territory for the offence for which consent is requested.
(2) If the judge decides the question in sub-section (1) in the negative he must inform the authority making the request of his decision.
(3) If the judge decides that question in the affirmative he must decide whether the offence for which consent is requested is an extradition offence.
(4) If the judge decides the question in sub-section (3) in the negative he must refuse consent.
(5) If the judge decides that question in the affirmative he must decide whether he would order the person's extradition under sections 11 to 25 if—
(a) the person were in the United Kingdom, and
(b) the judge were required to proceed under section 11 in respect of the offence for which consent is requested.
(6) If the judge decides the question in sub-section (5) in the affirmative he must give consent.
(7) If the judge decides that question in the negative he must refuse consent.
(8) Consent is not required to the person being dealt with in the territory for the offence if the person has been given an opportunity to leave the territory and—
(a) he has not done so before the end of the permitted period, or
(b) if he did so before the end of the permitted period, he has returned there.
(9) The permitted period is 45 days starting with the day on which the person arrived in the territory following his extradition there in accordance with this Part.
(10) Subject to sub-section (8), the judge must decide whether consent is required to the person being dealt with in the territory for the offence by reference to what appears to him to be the law of the territory or arrangements made between the territory and the United Kingdom."
The Parties' Submissions and Discussion on Ground 2
"(a) The purpose of Article 27 is to ensure that those who are returned via EAWs are not dealt with for other matters which pre-date the issue of the EAW without the extraditing court having a proper opportunity to consider if there are any bars to extradition. It is to prevent an abuse of the EAW system by requesting states.
(b) The RPs [requested persons] are no longer in Poland but have returned to the UK.
(c) There is no prejudice or unfairness to the RPs if the matter is dealt with by way of EAWs rather than consent. The court must confer the same potential bars to extradition under an EAW and a consent request.
(d) If this court dealt with the RPs by way of a consent request there would be no mechanism for returning them to Poland.
(e) The RPs can only rely on section 17 if they show that there are no speciality arrangements in place with the requesting state. All EU countries are signatories to the 1957 European Convention on Extradition which includes a provision, preventing extraditees from being dealt with for offences other than those for which he or she has been extradited. Further, the evidence of Katarzyna Debrowska, the Polish advocate, confirms that speciality arrangements are in place.
(f) The issue of any failure by the Polish authorities to deal with these matters earlier when the RPs were in Poland, such as by a consent request at that time, can be dealt with when considering potential bars to extradition by way of section 14, Article 8 and abuse of process."
"(iii) Due to the fact that the European arrest warrant was issued on 20 June 2017, at present there is no possibility to make a request for consent under Article 27(4) of the Council Framework Decision on the European arrest warrant, as now it is necessary to proceed according to the new European arrest warrant.
(iv) Under Polish law it is possible to issue a new European arrest warrant in the circumstances where a consent request under Article 27(4) of the Council Framework Decision on the European arrest warrant could have been made.
(v) Under Polish law, Katazyna Debrowska's report is not binding for the authority conducting the proceedings…"
"It is to be presumed that the Spanish authorities will act in good faith in the absence of compelling evidence to the contrary. They are trusted extradition partners and parties to the Framework Decision. They have incorporated the speciality rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of speciality."
There was in that case no compelling evidence that the Spanish authorities would act in breach of their speciality rule and Article 27 of the framework decision (para 68). Similarly, in my view, there is no compelling evidence that the Polish authorities will act in breach of their speciality rule.
Ground 4: Abuse of Process
"47. However, I do not consider it is the purpose of this court to investigate the Polish criminal procedure when the Polish authorities have said that warrants have been validly issued. There is no evidence of any bad faith or manipulation of the court process by the Polish authorities. They have explained why the matters were not dealt with when the RPs were in Poland. Whilst it may seem surprising that the relevant authorities were unaware that the RPs were in Poland or failed to ensure that they were questioned about the matter before being released and free to leave Poland, there is nothing to show that this was a deliberate ploy to delay dealing with the matters. All the evidence points to a lack of communication between the various Polish authorities, such as the prosecutor, courts and prison authorities."
Ground 1: Passage of Time
"Passage of time
A person's extradition to a category 1 territory is barred by reason of passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)."
" 'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."
"Oppression cannot be considered in isolation from the nature of the offence or offences for which extradition is sought. The more serious the offence, the greater the public interest there is likely to be in extradition taking place."
The alleged offence is serious. It involved a group attack on a female victim and substantial violence was used (see para 3 above).
Grounds 3: s.21A of the 2003 Act (Article 8 ECHR)