England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/02/2014

Mr Justice Nicol :

1. On 6^th July 2013 District Judge Evans ordered the Appellant to be extradited to Poland pursuant to a European Arrest Warrant and Part 1 of the Extradition Act 2003. He has appealed against that decision to this Court.
2. The warrant referred to four offences (the Appellant would say four groups of offences). The first, labelled in the warrant as Offence A, was an accusation matter. I will come back to describe it more fully. Offences B, C and D were conviction matters. Offence B alleges that the Appellant threatened the victim with a knife to recover money for a damaged car. For this offence the remaining sentence is 1 year, 10 months and 28 days. The warrant says Offence B was committed on 16th November 2011, but that would seem to be a typographical error for 16th November 2001 (as is reasonably clear from the year of the offence in the Polish original). Offence C covered two offences, both committed on 1st May 2003. They were damage to property and assault. For these the Appellant was sentenced to 1 year in prison. Offence D is described briefly as 'fencing' stolen property on 6th August 2004. For this he received 10 months imprisonment. Again it will be necessary to say more about the description of this offence in the warrant.
3. I return to Offence A. In Box E Part 2 of the warrant, this is described in the following terms:

"in the period between August 2004 and April 21, 2005 in Bydgoszcz, at ul Kseldza Skargi 13/1 and in Modrakowa Street, acting with particular cruelty, he mistreated mentally and physically [the complainant] in such a manner that in the period between August 2004 and September 10, 2004 in an apartment at 13, Kseldza Skargi Str. Apt.1, he was beating and kicking the victim all over her body, he used to throw her against the wall, bringing her to the loss of consciousness, moreover; with the use of knife and on January 27, 2005 in Bydgoszcz at 78, Modrakowa Str, by means of a short text message sms, sent at the mobile phone belonging to Marzena Nejman, he threatened her with the deprivation of her life; moreover, he insulted her with the words generally considered as vulgar, moreover using violence and acting with particular cruelty, he brought her to sexual intercourse and yielded to other sexual activities; in the period between September 2 and 8, 2004 in an apartment in 13, Kseldza Skargi Str. Apt.1, he deprived the victim of liberty, keeping her against her will, moreover he caused the impairment of the organs of the body of the aggrieved for the period under 7 days; moreover on April 21, 2005 in Bydgoszcz at Modrakowa Str, he applied towards the aggrieved party the illegal threat in order to influence her by withdrawing the earlier provided testimony, where the offence was committed after being previously sentenced within the framework of Article 64 section 1 of the Penal Code."

4. Part 3 of Box E describes the nature and legal classification of what is listed under Offence A as follows:

"the offence of Article 207 section 2 of the Penal Code in conjunction with Article 197 section 4 of the Penal Code in conjunction with Article 189 section 2 of the Penal Code in conjunction with Article 190 section 1 of the Penal Code in conjunction with Article 245 of the Penal Code in conjunction with Article 157 section 2 of the Penal Code in conjunction with Article 11 section 2 of the Penal Code in conjunction with Article 64 section 2 of the Penal Code - mistreatment with particular cruelty, rape with particular cruelty, deprivation of liberty, threatening with deprivation of life, impairment of the body organs functioning for the period under 7 days, threatening to influence the witness, acting in terms of the multiple recidivism."


5. Box C of the warrant says that the maximum sentence for Offence A will be 15 years imprisonment. In Box E1 the European Framework list is ticked under 'rape'.
6. Offence D is described thus:

"on August 6, 2004 in Bydgoszcz, at 13, Piotra Skargi Str. in the apartment number 1, he was in possession of the items that were received by means of the forbidden act, i.e. the hair clipper Chromini Moser of the total value of PLN 122.88, the Wahlo hair clipper of the total value of PLN 304.60, originating from the burglary into the wholesale PolWell in Bydgoszcz, at 27, Kosciuszki Str, and moreover the Nikon E-55 camera of the total value of PLN 210, the car computer of Fiat Punto 1.2 MPI make, of the total value of PLN 190, a car computer of Fiat Punto 1.1 make, of the total value of PLN 200, an unidentified car computer of the total value of PLN 50, where Marcin Szerffel committed this offence before the end of 5 years from serving the period between November 26, 1999 and September 26 2001, the total penalty of 1 year and 10 months of custodial sentence, ruled by the total judgment of May 16, 2000 in the matter of the Provincial Court in Bydgoszcz, of the case file number IV K 256/00 for the offences among others of Article 279 section 1 of the Penal Code."

The grounds of appeal concerning Offence A

7. Mr Hawkes, on behalf of the Appellant argues that the District Judge should have discharged the Appellant in relation to offence A:

i) Because in reality the warrant refers to 7 charges under this heading, but gives a single maximum sentence of 15 years. Accordingly the warrant does not contain, as required by s.2(4)(d), the particulars of the sentence which may be imposed under the law of Poland if the Appellant was to be convicted of it.

ii) Because by reason of the passage of time since he is alleged to have committed this offence, it would be unjust or oppressive to extradite him and the Appellant should be discharged pursuant to s14.

iii) Because it appears that the District Court which issued the EAW is not the District Court before which the Appellant is to be tried for Offence A if he is extradited.

Alleged failure to state the maximum sentence for offence A

8. Mr Sternberg, on behalf of the Judicial Authority, argues that the warrant characterises Offence A as a single offence - see my quotation from Part 3 of Box E above. This is also apparent from the opening words of Box E which says "The warrant relates to in total 5 offences" (presumably 5 rather than 4 because Offence C concerns two offences). The inference is that Offence A is a single offence. On this basis, it is consistent for Box C to specify a single maximum sentence for Offence A.
9. Mr Sternberg argues that, to the extent there is any ambiguity, it is resolved by further information provided by the Judicial Authority in a letter dated 28th November 2013 which says,

"In keeping with Section 11 of the Criminal Code of the Republic of Poland (1) The same act may constitute only one offence. (2) If an act meets the criteria specified in two or more regulations of a criminal law, the Court sentences for one crime, based on all coinciding provisions. (3) In an event specified in (2), the Court imposes a punishment based on the regulation imposing the most severe punishment, without prejudice to imposing other measures provided for in the law under all of the coinciding regulations.

This construction, adopted in the Polish system of criminal law, applies when one prohibited act meets the criteria for types of prohibited acts specified in at least two provisions of a criminal law, and when omitting one of the coinciding regulations would result in failing to adequately render the lawlessness of that act in its legal classification.

Marcin Szerffel has been charged with committing one act which in fact covers several actions meeting the criteria of other offences, that is [the letter then sets out the maximum sentence for each of the coinciding offences that were referred to in the Box E description. These range from 15 years for rape to 2 years for making unlawful threats and also for inflicting injuries]…In conclusion, Marcin Szerffel is wanted for committing all of the above offences with one act, including the rape of [the complainant]."

10. Mr Hawkes submits that it is not open to the Judicial Authority to have recourse to the further information. He refers me to Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 where Lord Hope said at [50] that the District Judge must be satisfied that he is dealing with a Part 1 warrant within the meaning of s.2(2). "A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of s.2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
11. In my judgment, Mr Hawkes' submission does not assist him. Firstly, that is because, I agree with Mr Sternberg that, looking exclusively at the warrant, Offence A is concerned with a single offence. That is plainly how the warrant treats Offence A. It has been frequently said that, when dealing with the operation of the EAW system, English courts and English lawyers must guard against an Anglo-centric view of criminal law and procedure. It is nothing to the point that an indictment in this country which contained a single count cast in the same terms as Offence A might be open to challenge on grounds of duplicity. The warrant says it is a single offence with a single maximum penalty (which in turn is determined by the most serious constituent element). In my judgment, that is sufficient to comply with the requirements of s.2(4).
12. However, if I was wrong about that, I detect in more recent authority a greater readiness to allow a Judicial Authority to explain any ambiguity in further information. In Zakrzewski v District Court in Torun, Poland [2013] 1 WLR 324 Lord Sumption at [10] noted that

"The requesting judicial authority has a right, recognised by article 15(3) of the Framework Decision, to forward additional information at any time. These are receivable in evidence by an English court under s.202 of the 2003 Act on the same basis as the warrant itself. If necessary, further information may be requested by the executing court under article 15(2). The Framework Decision proceeds on the assumption that requesting states can be trusted to ensure that statements and information in a European arrest warrant are true."

Thus, if and to the extent that there was any ambiguity in the warrant, I consider that it is cured by the further information which the Judicial Authority provided on 28th November 2013.

Lapse of time

13. It is apparent on the face of the warrant that the matters referred to in Offence A were allegedly committed in 2004-2005 i.e. between 9 and 10 years ago and 7-8 years before the EAW was issued.
14. In addition, Mr Hawkes wishes to rely on further evidence from the Appellant to show that he knew nothing of these matters until his arrest on 5^th July 2013. He was dealing with the police in Poland in relation to other matters, but, he says, they said nothing to him about these allegations. In response to this statement, the Judicial Authority on 18^th December 2013 said that, while the Appellant had not appeared before a Court or the Prosecutor in relation to Offence A, the Appellant was aware of the pending preliminary procedure. The complainant had said that he threatened her if she did not withdraw her accusation. In addition, the Appellant's mother had been interviewed several times in an attempt to discover her son's whereabouts. In August 2006 the Appellant had contacted the complainant by telephone to ask her to withdraw her statements. The Appellant had stopped reporting to the police (in relation to other matters in December 2004). Between 2005 and 2012 the Polish prosecuting authorities were told by the complainant and the Appellant's mother that he was in England. In a further proof of evidence the Appellant denies making threats to the complainant at any time and says he has had no contact with her since he came to England. He says that if the Polish police had been told he was in England, the delay in issuing the EAW is unexplained.
15. Lapse of time was not raised as a bar to extradition at the hearing before the District Judge and both of the Appellant's proofs of evidence post-date that hearing. This Court can nonetheless take account of fresh evidence which "was not available at the extradition hearing" - see s.27(4)(a), but only if a question which the District Judge would have been required to consider would have been decided differently and the Requested Person's discharge would have been ordered – see s.27(4)(b) and (c).
16. Mr Hawkes accepts, of course, that the Appellant could, in theory, have provided his evidence at the extradition hearing and to that extent the evidence was available at the extradition hearing. However, Mr Hawkes says this did not happen because the Appellant was produced at a Saturday morning hearing and the Appellant was given inadequate advice by the duty solicitor who then represented him. The difficulty with that submission is that the Duty Solicitor has written a letter to the Appellant's present solicitors in which she denies that there had been insufficient time for her to consult with the Appellant. She said she spent as much time with him as necessary in order to obtain his instructions and give him appropriate advice. He told her that "he was aware of all the offences on the warrant and left Poland because 'he was concerned about what was going to happen'". He had provided no instructions which would have amounted to a bar to extradition being capable of being argued. In the light of this evidence, I do not accept that the evidence on which the Appellant now wishes to rely was unavailable at the extradition hearing. It is not admissible now.
17. In any case, even if I had agreed that there was a good reason why his evidence was not put before the District Judge, I do not accept that this further evidence would have led to a different result. In order for lapse of time to constitute a bar to extradition, it must have led to a situation where it would now be unjust or oppressive to order the Appellant's extradition. So far as injustice is concerned, Poland is a party to the European Convention on Human Rights. I should proceed on the basis that, if he is extradited, the Appellant will be afforded all his Convention rights including the right to a fair trial guaranteed by Article 6 of the Convention – c.f. Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038 at [34]-[35]. There is no evidence before me which would justify departing from that assumption. So far as oppression is concerned, the Appellant's two Proofs of Evidence say very little. He has been living in England since 2005. For the last two years he has had a Romanian girl friend. She has been living in the UK for 5 years and would not be willing to move to Poland. While there would be some disruption to their lives, in my judgment this comes nowhere near showing that extradition of the Appellant would be "oppressive". I bear in mind as well that the allegations against the Appellant are extremely serious. It would not, in my judgment, be oppressive for the Appellant to be returned to Poland to face trial on those matters, even though they are alleged to have occurred over 9 years ago. The Appellant suggests that, because of the lapse of time, the complainant may no longer be willing to support the prosecution and may no longer even be in Poland. There is no evidence to support either hypothesis and his speculation is not a matter which I can properly take into account

Appellant faces prosecution in a different district court

18. The EAW was issued by the Regional Court in Bydgoszcz III. So far as Offence A is concerned Box B says that the decision regarding temporary arrest was a decision of the Provincial Court in Bydgoszcz for the Appellant's provisional arrest "in regards of the matter of the Provincial Prosecutor's Office Bydgoszcz-Polnoc in Bydgoszcz of the case number…" (my emphasis). In further information provided by the XVI Penal Division of the Bydgoszcz District Court on 23rd January 2014 it is emphasised that the proceedings for Offence A are being conducted by the Public Prosecutor of Bydgoszcz-Polnoc rather that the XVI Penal Division of the District Court. Mr Hawkes submits that it cannot be right that one Judicial Authority can issue an EAW on behalf of another Judicial Authority.
19. In my judgment there is nothing in this point. The EAW has the statement and information which s.2(2) requires. It is apparent that the EAW system is intended to be in aid of a domestic warrant for the Requested Person's arrest. Section 2(7)-(8) authorises a designated authority to certify that the authority which issued the EAW has the function of issuing arrest warrants in the category 1 territory. The Serious Organised Crime Agency (a designated authority at the time) has certified that the Judge who issued EAW in this case did have such a function. As I have just shown, it was the Bydgoszcz District Court which issued a domestic warrant for the arrest of the Appellant for Offence A. Thus the EAW is indeed in aid of a domestic warrant issued by the same court.
20. There is nothing in the 2003 Act which prevents one Judicial Authority issuing an EAW in aid of a prosecution by a separate prosecutor in the same category 1 territory. Even if I assume that there is a significant distinction between Bydgoszcz on the one hand and Bydgoszcz-Polnoc on the other, I see no reason why that should lead to the conclusion that the EAW is invalid. It remains the case that the Appellant is accused in Poland of the offence specified in the warrant and it remains the case that his extradition is sought for the purpose of prosecuting him there for that offence in Poland.

The grounds of appeal concerning Offence D

No sufficient mens rea

21. The District Judge is required to consider whether the offence for which the Requested Person's return is sought is an extradition offence – see s.10. In the case of a conviction warrant (which is what Offence D concerns) the definition of an "extradition offence" is given in s.65. Offence D is not alleged to have been an offence on the European Framework list. However, the sentence was over 4 months. It is alleged to have occurred in Poland, a category 1 territory, and it will, therefore, be an extradition offence if "the conduct would constitute an offence under the law of the relevant part of the UK if it occurred in that part of the UK." - see s.65(3).
22. There is, of course, an offence in the UK of handling stolen goods – see Theft Act 1968 s.22, but a defendant will only be guilty of that offence if he knows or believes that the goods have been stolen. Mr Hawkes argues that the warrant does not make clear that the conduct in the case of Offence D involved him having this guilty mind. It was legitimate in some circumstances to infer a mental element from the description of the conduct in the warrant, but the facts must be such as to impel an inference – see Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) at [57] (there was a further appeal to the Supreme Court, but not on this point). The warrant does not contain facts which would require such an inference to be drawn.
23. Mr Sternberg accepts that the warrant is unclear on this matter. Part 3 of Box E describes Offence D as "fencing" which might be thought to embrace the necessary mens rea but Mr Sternberg, very fairly, did not seek to rely on what might have been no more than a translator's flourish. Nonetheless, he says that I can be quite sure that the Appellant's conduct did involve knowing that the goods were stolen as a result of further information provided by the Judicial Authority on 4^th December 2013. In this letter it is said in terms that he knew the items were stolen, their price was four times lower than the market price, he had no documents (such as a receipt or warranty) to show the purchase was lawful and he did not say who had sold the goods to him.
24. Mr Hawkes argues that the Judicial Authority cannot make good the deficiency in the warrant by reference to the further information. I disagree and refer to the passage from Lord Sumption's judgment in Zakrzewski which I have already quoted. Indeed, even Lord Hope in Dabas accepted that there could be recourse to further information for the purpose of showing that the offence for which extradition was sought was an extradition offence – see Dabas at [49]. It is also clear from Zak v Regional Court of Bydgoszcz Poland [2008] EWHC 470 (Admin) at [16] that the Court can look to a combination of the warrant and the further information for this purpose.

Lack of right to a retrial

25. The Appellant was not present for his trial in relation to Offence D. The District Judge had then to consider whether he had deliberately absented himself from his trial. If the Appellant did not, then the District Judge had to consider whether he would have a right to a retrial or, on appeal, to a review amounting to a retrial. If the Appellant would not, then the District Judge ought to have discharged him – see s.20.
26. In this case the Warrant said at Box D2,

"The defendant Marcin Szerffel in the course of the investigation, admitted to the commission of the offence and provided the address for delivery of the correspondence in relation to his trial. The summons about the trial scheduled for August 21, 2005 was sent at the address of residence, provided by Marcin Szerffel. The judgment was handed down on August 21, 2005 along with the instruction on the manner and deadline to appeal, were sent at the earlier indicated by Marcin Szerffel address."

27. No issue was taken with this before the District Judge.
28. In his first proof of evidence, the Appellant said that when he was taken to the police station in relation to this matter, he admitted the items in question were not his. He told the police that he did not know their criminal provenance. He denies that he admitted the offence to the police. He said that he signed a document confirming his account. He denies that he gave the police his address for service. He heard nothing more about the matter and considered that it was over. He came to the UK in April 2005.
29. In the further information of 4^th December 2013 the Judicial Authority says that it was on 6^th August 2004 that the Appellant admitted the offence. The Appellant was not subject to any preventative measures such as bail or financial security in relation to this offence at any time. He was, though, obliged to notify the authorities of any change of address and he had not done that. He did not have the right to travel to the UK as he says he did in April 2005.
30. In Further Information of 18^th December 2013, the Judicial Authority mentions "as a side note" that the Appellant was investigated again for theft in October 2004. In connection with this matter he was subject to the preventive measure of police surveillance. In his second Proof of Evidence, the Appellant recalls being arrested in October 2004, that it concerned stolen goods and he was placed on police bail. He acknowledges that he stopped signing on at the police station in relation to this matter.
31. I have set out what the Appellant says about these matters, but I am not persuaded that there is a good reason why they were not raised before the District Judge. He was then represented by a solicitor who says that she had adequate opportunity to take instructions from him. These are all matters which could have been mentioned then.
32. But even if that were not so, as I have said, fresh evidence will only be admitted if it would cause an issue to be decided differently. In this case, the warrant says that he did provide an address for service of the summons. The Appellant has denied that was so. However, he does agree that he signed a document which set out his account of the affair. It is inconceivable that would not have included a contact address. According to the Further Information he was obliged, as a matter of Polish law, to notify the police of any change of his address. That is unchallenged. He also accepts that he stopped signing on at the police station (albeit in relation to a separate matter and not one which features in the EAW). I can take that into account when I consider how scrupulous (or otherwise) this Appellant has been at observing his obligations to keep in touch with the police. Overall, I am sure that if, all of the information was taken into account, the conclusion would still be the same, namely that the Appellant deliberately absented himself from his trial.
33. Consequently the s.20 challenge fails.

Lapse of time generally

34. At points in his submissions, Mr Hawkes appeared to generalize his arguments relating to lapse of time so as to apply them to all of the offences. The other offences did not have the same level as seriousness as Offence A, but for the other reasons which I have given above, his arguments fail even if directed more generally.

Conclusion

35. Despite Mr Hawkes' skilful advocacy on the Appellant's behalf, I reject all of his grounds of appeal. It follows that this appeal is dismissed.