CO/5/2021, CO/6/21, CO/7/2021
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOLROYDE
MR JUSTICE CHAMBERLAIN
| MAREK POLAKOWSKI, VIJAY SANKAR, CARLOS MENDES,
MARIS ZELENKO AND THOMAS OVSIANIKOVAS
- and -
|(1) WESTMINSTER MAGISTRATES' COURT
(2) WARSAW REGIONAL COURT, POLAND
(3) OFFICE OF PUBLIC PROSECUTION, COLOGNE, GERMANY
(4) JUDICIAL DISTRICT OF LISBOA NORTE, PORTUGAL
(5) PROSECUTOR GENERAL'S OFFICE, LATVIA
(6) DEPUTY PROSECTOR GENERAL LITHUANIA
(7) GOVERNOR OF HMP WANDSWORTH (IN POLAKOWSKI AND OVSIANIKOVAS)
Helen Malcolm QC and Alexander dos Santos (instructed by the Crown Prosecution Service) for the judicial authorities
Hearing dates: 15 January 2021
Crown Copyright ©
Dame Victoria Sharp, P:
(a) Marek Polakowski is sought pursuant to a conviction EAW issued on 4 October 2019 by the Warsaw Regional Court in Poland and certified by the National Crime Agency ("NCA") on 13 February 2020. He was arrested on 10 July 2020 and brought before Westminster Magistrates' Court, where he was remanded in custody. A full extradition hearing has yet to take place. The latest hearing at Westminster Magistrates' Court took place on 14 January 2021, at which Mr Polakowski was remanded in custody for a further 28 days. He is currently detained at HMP Wandsworth.
(b) Vijay Sankar is sought pursuant to an accusation EAW issued on 22 April 2020 by the Office of Public Prosecution in Cologne, Germany, and certified by the NCA on 2 June 2020. He was arrested on 30 June 2020 and appeared at Westminster Magistrates' Court on the same day. He was granted conditional bail. He remains on bail. A full extradition hearing is listed on 25 January 2021.
(c) Carlos Mendes is sought pursuant to an accusation EAW issued on 28 February 2019 by the Judicial District of Lisboa Norte in Portugal and certified by the NCA on 6 January 2020. He was arrested on the same day. His extradition was ordered following a hearing at Westminster Magistrates' Court by District Judge Snow. He has appealed. Permission to appeal was initially refused but was then granted following a hearing on 21 October 2020. The appeal is listed for hearing on 16 February 2021. He has been on bail throughout.
(d) Maris Zelenko is sought pursuant an accusation EAW issued on 4 January 2018 by the Prosecutor General's Office in Latvia and certified by the NCA on 9 January 2018. He was arrested on 2 October 2018. His extradition was ordered by Deputy Senior District Judge Ikram on 17 January 2019. His appeal was dismissed by the Divisional Court on 13 July 2020, but he has applied to re-open that appeal. He has been on bail throughout.
(e) Tomas Ovsianikovas is sought pursuant to an accusation EAW issued on 16 October 2014 by the Deputy Prosecutor General in Lithuania and certified by the NCA on 24 October 2014. He was arrested on 20 May 2015 whilst in custody in relation to an offence of rape committed in this jurisdiction, for which he was convicted and sentenced. He remained in custody on the basis of the EAW after serving his custodial sentence. He is currently detained at HMP Wandsworth.
Procedure: the appropriateness of applications for habeas corpus
"47 there is a more fundamental difficulty in the way of the applicant's use of habeas corpus in a case like this. Even if the applicant were in detention, it is that a complete answer to the writ of habeas corpus would be provided by the fact that there is lawful authority for his detention. That authority is provided by the order of a court. The gaoler (for example a prison governor) would be able to cite the order of the court as providing the lawful authority for the detention.
48. What the applicant in truth needs to attack, and indeed does attack, is the order of the court by which the district judge refused his application for discharge. The applicant submits that the decision of the district judge is flawed on various public law grounds ; and irrationality. Those are grounds of judicial review.
49. The appropriate procedure for setting aside the order of the court which on its face authorises the applicant's detention is an application for judicial review to have that order quashed."
The applicants' argument
(a) The legal basis for the EAW system is Framework Decision 2002/584 JHA ("the Framework Decision"). That provides for the issue of EAWs by a judicial authority in the requesting Member State to the sending Member State and for the surrender of persons by the latter to the former.
(b) Until 11 p.m. on 31 January 2020, the Framework Decision itself which applied to all Member States including the UK as part of the corpus of EU law provided a proper legal basis for the issue of EAWs and for the surrender of individuals pursuant to them.
(c) From 11 p.m. on 31 January 2020, however, the UK ceased to be an EU Member State; and EU law was no longer an independent source of obligations on the UK. The UK's rights and obligations vis-ΰ-vis the EU were exhaustively defined by the Withdrawal Agreement, which entered into force at that time.
(d) Article 62 of the Withdrawal Agreement provided that the Framework Decision was to continue to apply in respect of EAWs where the requested person was arrested before the end of the "transition period" (defined in Article 126 as the period from 11 p.m. on 31 January 2020 to 11 p.m. on 31 December 2020).
(e) But in order for the Framework Decision to be capable of sensibly applying, it was necessary for there to be an express agreement that the UK would be treated as if it were a Member State for the purposes of the Framework Decision. There is such an agreement in Article 127, but that applies only during the transition period. Its para. (1) provides that, subject to immaterial exceptions, EU law is to be applicable to and in the UK, but only "during the transition period". Para. (3) provides that the law made applicable by para. (1) "shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union". But this too applies only "[d]uring the transition period". Para. (6) provides: "Unless otherwise provided in this agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom" (emphasis added).
(f) Article 7 of the Withdrawal Agreement, provides, subject to exceptions, that "[f]or the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities". But Article 128(1) shows that this applies only during the transition period.
(g) This means that, after the end of the transition period, there is no agreement that the term "Member State" includes the UK. Since the Framework Decision in its Article 1(1) defines an EAW as "a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person" (emphasis added), this has the consequence that the Framework Decision does not provide a proper legal basis for the surrender of the applicants by the UK to any EU Member State.
(h) The 2003 Act, insofar as it implements the Framework Decision, must be read conformably with it: see the decision of the Grand Chamber of the European Court of Justice ("ECJ") in Case C-105/03 Pupino  QB 83 and other cases to similar effect. Accordingly, since the Framework Decision supplies no basis for the surrender of the applicants, neither can the 2003 Act.
(i) Since, from 1 January 2021, the UK is no longer a Member State and no longer to be treated as if it were, a number of key protective features of the Framework Decision regime have ceased to apply. In particular:
(i) specialty protection (provided for by Article 27 of the Framework Decision), the importance of which is vouched by s. 17 of the 2003 Act, which requires discharge where there are no specialty arrangements with the requesting territory;
(ii) assurance that time spent in custody or remand will count toward sentence (provided for by Article 26 of the Framework Decision), without which it is said that there may be a breach of Article 7 ECHR;
(iii) protection from onward extradition (provided for by Article 28 of the Framework Decision); and
(iv) provisions governing surrender and transit (provided for by Article 25 of the Framework Decision).
(j) The EAW regime can no longer operate properly as intended, because the UK's departure from the EU has removed the jurisdiction of the Court of Justice of the EU ("CJEU"), which is essential to ensure uniform application of the Framework Decision.
(k) Finally, since 1 January 2021, the UK no longer has access to the Schengen information System II ("SIS") for the purpose of surrender and removal arrangements. This is a further matter which renders the operation of the EAW system impossible.
"The amendments made by section 12 do not apply for the purpose of deciding whether the offence specified in a Part 1 warrant is an extradition offence if the person in respect of whom the warrant is issued is arrested under the warrant or under section 5 of the Extradition Act 2003 on the basis of a belief related to the warrant before [11 p.m. on 31 December 2020]."
"For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities, except as regards:
(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;
(b) the participation in the decision-making and governance of the bodies, offices and agencies of the Union;
(c) the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council (4), of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement."
"Parts Two and Three, with the exception of Article 19, Article 34(1), Article 44, and Article 96(1), as well as Title I of Part Six and Articles 169 to 181, shall apply as from the end of the transition period."