QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and –
|POLISH JUDICIAL AUTHORITY
SAOIRSE TOWNSHEND (instructed by CPS) for the Respondent
Hearing dates: 8 September 2020
Crown Copyright ©
MR. JUSTICE SWIFT:
"Given the compromise to the position of Polish courts so far as the fundamental guarantees of independence and impartiality (the two I guarantees) are concerned, with the vitiating consequence of removing the necessary continuity of a Judicial Authority (Extradition Act 2003 s.2) for the lawful maintenance of the pursuit of an EAW brought about by the latest legislative developments in Poland (December 2019/January 2020), the requesting Judicial Authority can no longer be properly be considered to be a Judicial Authority for the purposes of s.2 and therefore the EAW is invalid."
The second part of this application is that determination of this ground of appeal and this ground only be stayed pending the judgment of the Divisional Court in Chlabicz and Wozniak.
(a) The Appellant has permission to amend his grounds of appeal in the terms at paragraph 8(i) of the application dated 2 September 2020.
(b) Determination of that ground of appeal is to be stayed pending judgment of the Divisional Court in the appeals of Chlabicz and Wozniak.
(c) The Appellant shall, within 14 days following the day on which the judgment of the Divisional Court is handed down, file and serve a document (i) stating whether he intends to pursue this ground of appeal; and (ii) if so, setting out the submissions made in support of this ground of appeal.
"20. The email has not been duly authenticated as provided by s.2020 above. That was not in dispute. That said, whilst I accept that the email is not duly authenticated as required by section 202 of the Act, I find that it can still be admissible pursuant to section 202(5) of the Act. I consider that as the email has clearly been sent from the NCB Warsaw to the NCB Manchester and has come through the official channels, that it is admissible as evidence in these proceedings and I do admit it. I accept that the court that is referred to is the Regional Court in Warsaw, but I do not find that this is the incorrect court as submitted by Mr Cockroft. The RFFI response dated 12 September 2014 makes it clear that the RP appealed against the enforcement of the suspended sentence of imprisonment and that it was the regional court in Warsaw that refused the appeal. Further, the EAW itself was issued by the regional court in Warsaw. I am also satisfied that it is clear that the further information relates to this RP and the date of limitation period ties in with this EAW.
21. I bear in mind that the only reason why the time limitation period has become an issue in these proceedings is because the RP absconded when he was on bail in the UK in relation to this EAW. He told me in his evidence that he was hiding from the authorities in the UK. He told me in his evidence that he was not openly working and indeed was working in such a way so that his risk of being found by the police was reduced. I also note, in my experience of extradition cases involving Poland, it is not unheard of for the time limitation period to be extended in similar situations. I do not say that this in itself would allow me to conclude that the JA had extended the time limit in this EAW, but it gives support to the fact that the email is reliable.
22. For all of the reasons set out above I find that the email should be admitted as evidence in this case pursuant to section 202(5) of the Act."
"(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 purposes 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."
The warrant in this case does contain the information required by subsections (5) and (6). That information is contained variously in Boxes A to E of the warrant. The information in Box F is, strictly, additional information.
"73 In the event, we conclude that the previous approach to the requirements of an EAW and the role of further information must be taken no longer to apply. The formality of Lord Hope's approach in Cando Armas, based on the wording of the Act, has not survived. It is clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of the warrant.
74. We do not see an easy distinction, in practice, between 'formal' and 'substantive' requirements of an EAW, despite the remarks of Lord Mance in paragraph 45 of Goluchowski. An EAW requires certain specified information. If that information is not forthcoming, then extradition cannot lawfully be ordered. Are the date, place and nature of the offence, and the question of maximum sentence, to be regarded as 'formal' or 'substantive' matters? They are required matters. The effect of the two key recent decisions is, we conclude, that missing required matters may be supplied by way of further information and so provide a lawful basis for extradition.
75. None of this means that extradition can properly be achieved on the basis of a 'bit of paper'. In our view, there must be a document in the prescribed form, presented as an EAW, and setting out to address the information required by the Act. An otherwise blank document containing the name of a Requested Person, even if in the form of an EAW, will properly be dismissed as insufficient without more ado. The system of mutual respect and cooperation between states does not mean that the English Court should set about requesting all the required information in the face of a wholly deficient warrant. Article 15(2) expressly concerns itself with 'supplementary' information and can properly be implemented with that description in mind. That will of course include resolution of any ambiguity in the information provided. It will include filling 'lacunae'. The question in a given case whether the Court is faced with lacunae or a wholesale failure to provide the necessary particulars can only be decided on the specific facts"
Later in his judgment, at paragraph 102, he formulated the matter in terms of whether the EAW in issue had "set out to address the information required by the Act, and did not involve a wholesale failure to provide the necessary particulars."
"22. The Court has power to prevent its process being abused in extradition proceedings. This power exists outside the confines of the 2003 Act, see Tollman (supra) at  to , although the question whether abuse is demonstrated has to be 'asked and answered in light of the specifics of the statutory regime', see R (Bermingham) v Director SFO  EWHC 200 (Admin);  QB 727 at . As was recognised in the Tollman case at  there are various bars to extradition found in the 2003 Act which would be reflected in the abuse jurisdiction in ordinary domestic cases, including motivation by 'extraneous circumstances'. Others might be covered by the human rights bar. At  an example of abuse recognised in the domestic criminal jurisdiction, namely where 'a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly prejudice a defendant before the court' was applied to extradition cases; and extended to such conduct by a judicial authority.
23. In the domestic criminal context, proceedings will amount to an abuse of process if either it is impossible to provide a fair trial or where it is necessary to protect the integrity of the criminal justice system (see, R v Maxwell  UKSC 48;  1WLR 1837 per Lord Dyson at  and R v Crawley  EWCA Crim 1028 per Sir Brian Leveson P at  – ). In extradition proceedings there are statutory bars in the 2003 Act to prevent an extradition to an unfair trial, and in a range of other circumstances. For these reasons most issues of abuse of process arising in extradition proceedings relate to the protection of the integrity of the system.
24. There is no doctrine of res judicata or issue estoppel in extradition proceedings, see Auzins v Prosecutor General's Office of the Republic of Latvia  EWHC 802 (Admin);  4 WLR 75 at . This means that the institution of a second set of extradition proceedings following the failure of the first will not necessarily amount to an abuse of process, see R (Kashamu) v Governor of Brixton Prison  EWHC 980 (Admin);  QB 887 at .
25 ... The scope of the abuse jurisdiction in extradition proceedings has recently been considered in Auzins between  and  and in Camaras v Baia Mare Local Romania Court  EWHC 1766 (Admin) between  and . Both discuss an earlier decision of this court in Hamburg Public Prosecutor's Office v Altun  EWHC 397 (Admin). That was a case where, exceptionally, albeit in obiter dicta, the court indicated that there was an abuse of process in the German authorities bolstering their evidence in support of a second extradition request to resist a double jeopardy argument they had lost in the first. In my judgment in Auzins at  I indicated that,
"The underlying purpose of the abuse jurisdiction in extradition cases is to protect the integrity of the statutory scheme of the 2003 Act and the integrity of the EAW system, as well as to protect a requested person from oppression and unfair prejudice. These purposes are more fully discussed in R (Bermingham and others) v Director of the Serious Fraud Office ...at ; in Belbin v the Regional Court of Lille, France  EWHC 149 (Admin) at ; and in Italy v Barone  EWHC 3004 (Admin) at ."
In the paragraph to which I referred in Belbin Aikens LJ said:
"We wish to emphasise that the circumstances in which the court will consider exercising its implied 'abuse of process' jurisdiction in extradition cases are very limited. It will not do so if, first, other bars to extradition are available, because it is a residual, implied jurisdiction. Secondly, the court will only exercise the jurisdiction if it is satisfied, on cogent evidence, that the Judicial Authority concerned has acted in such a way as to 'usurp' the statutory regime of the EA or its integrity has been impugned. We say "cogent evidence" because, in the context of the European Arrest Warrant, the UK courts will start from the premise, as set out in the Framework Decision of 2002, that there must be mutual trust between Judicial Authorities, although we accept that when the emanation of the Judicial Authority concerned is a prosecuting authority, the UK court is entitled to examine its actions with 'rigorous scrutiny'. Thirdly, the court has to be satisfied that the abuse of process will cause prejudice to the requested person, either in the extradition process in this country or in the requesting state if he is surrendered."