APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lady Paton	[2010] HCJAC 42 Appeal No: XC826/09 OPINION OF THE LORD JUSTICE CLERK in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by KRZYSZTOF ENGLER Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: Bovey QC, Govier; V Good & Co

For the Lord Advocate: Creally, M McKay; Crown Agent

4 May 2010

Introduction

[1] This is an appeal against the decision of Sheriff Maciver on 9 December 2009 to order the appellant's extradition to Poland in terms of section 21(3) of the Extradition Act 2003 (the 2003 Act).

Background

[2] The appellant was arrested in Scotland on 5 August 2009 on a Part 1 Warrant issued by the Regional Court in Gdansk, Poland. For the purposes of the 2003 Act Poland is a Category 1 country. The warrant was issued on 24 April 2008. It requested the surrender of the appellant to serve sentences amounting to at least two years and nine months imprisonment on charges of theft and assault and robbery.

The devolution issue

[3] The appellant opposes extradition on the ground that to return him to Poland would violate his rights under article 3 of the Convention because of systemic overcrowding and associated poor conditions in Polish prisons. This is the ground that was advanced by the appellant in Kropiwnicki v Lord Adv, with which this case was heard.

The 2003 Act

[4] Section 27 provides as follows:

"27 (1) On an appeal under section 26 the High Court may-

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that-

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that-

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must-

(a) order the person's discharge;

(b) quash the order for his extradition."

The decision appealed against

[5] The appellant relied on the decision of the European Court of Human Rights in Orchowski v Poland (Application no. 17885/04), 22 October 2009. We consider that case in our decision in Kropiwnicki v Lord Adv (supra) that has been issued today. In Orchowski the Court found, in brief, that the article 3 rights of the applicant had been violated by reason of the overcrowded conditions in which he had been held for most of his time in prison. The Court concluded that "for many years, namely from 2000 until at least mid-2008, the overcrowding in Polish prisons and remand centres revealed a structural problem consisting of 'a practice that is incompatible with the Convention.'"

[6] The appellant did not give evidence at the extradition hearing. The sheriff considered that the appellant had put forward no ground to suggest that he was unusually susceptible to ill-treatment if returned to Poland. The position of the House of Lords in extradition matters had been supportive of the 2002 Framework Decision, which had created the European Arrest Warrant system, and of the absolute need for mutual trust and respect between the justice systems of Member States (Office of the King's Prosecutor, Brussels v Armas [2005] UKHL 67). This principle of mutual recognition applied to the Polish penal system. The onus was on the appellant to prove, on a balance of probabilities, that the conditions in the requesting state did not comply with the Convention. The sheriff referred to the statement of this Court to that effect in Trajer v HMA (2009 JC 108, at para [35]) when it refused an appeal against extradition to the Czech Republic.

[7] The sheriff considered that the appellant had to show that there were substantial grounds for believing that there was a real risk that, if returned to Poland, he would be subject to conditions that violated article 3 (Miklis v Deputy Prosecutor General of Lithuania ([2006] EWHC 1032 (Admin)). At most, Orchowski showed that in certain prisons there had been a level of occasional overcrowding that had in the past breached the article 3 rights of certain prisoners. It also gave a clear indication of an improvement in prison conditions. The appellant had indicated only a speculative risk that his article 3 rights would be violated. A general assertion that Polish prisons were endemically non-compliant did not come near to meeting the tests in Miklis (supra) and Trajer (supra).

Grounds of appeal

[8] Counsel for the appellant adopted the submissions of counsel for the appellant in Kropiwnicki v Lord Adv (supra) and supplemented them with submissions of his own to similar effect.

Additional evidence

[9] Towards the end of his submissions, counsel for the appellant tendered an affidavit sworn by the appellant on the previous day. It describes allegedly poor conditions in Starogard Gdanski prison, where he was detained between September 2005 and April 2006. This was not one of the prisons referred to in Orchoswki. The appellant says that because Starogard Gdanski is his home town, he expects that it will be to that prison that he will be returned if extradited. He says that his cousin, currently a prisoner there, told the appellant's mother that the conditions are as bad now as they were in 2005-2006.

[10] We pointed out to counsel for the appellant that he could found on this evidence only if it had not been available at the extradition hearing (2003 Act, s 27(2)-(4), supra). He moved us to admit the evidence on the ground that it made more precise the appellant's contention that he would be held in conditions that did not comply with article 3. His only explanation for the failure to lead the evidence at the extradition hearing was that its significance had not been appreciated at that time.

[11] Counsel for the Lord Advocate opposed the motion. We considered that he was right to do so and we refused to admit the evidence. The affidavit raises an issue that was raised at the extradition hearing. It relates to time spent in a prison by the appellant some years ago. It was open to the appellant to give evidence at the extradition hearing about the conditions there. He chose not to give evidence at all. We agree with what Latham LJ said in Miklis:

"It should be remembered that section 27(4) of the Act, dealing with new evidence, refers to evidence at the appeal "that was not available at the extradition hearing". The word "available" makes it plain that, whilst I would not consider that the requirements of Ladd v Marshall (
[1954] 1WLR 1489), had to be met where not only the liberty of the individual, but also matters relating to human rights are in issue, nonetheless the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the appellant 'keeping his powder dry' he must expect the Court to view any application to rely on such evidence with some scepticism."

[12] That the appellant's advisers did not decide to obtain this evidence until the hearing of this appeal is not a good reason for its not having been made available to the sheriff. In Szombathely City Court and Ors v Fenyvesi ([2009] EWHC 231(Admin)) the High Court considered an application to allow additional evidence in an appeal by the requesting state. The application was based on provisions identical to those in section 27(4)(a) (supra). I agree with the court in that case that evidence that was "not available at the extradition hearing" means evidence which either did not exist at the time of the extradition hearing, or was not at the disposal of the party wishing to adduce it and could not with reasonable diligence have been obtained (ibid, at para 32). On that view, this evidence does not qualify under section 27(4)(a).

[13] In that case the court also considered the further question whether, if the evidence had been adduced, the result would have been different. If that question had arisen in this case, I would have held that the affidavit came nowhere near to meeting the agreed test. It gives first-hand information only for the period between September 2005 and April 2006. It relates to only one institution in the Polish penal system. Beyond that, it is hearsay.

Conclusions

[14] This appeal raises the issues that we considered and resolved in Kropwiniski v Lord Adv (supra). The submissions for the appellant add nothing to the submissions of counsel in that case. In my view, for the reasons given in that case, this appeal is groundless.

Disposal

[15] I propose to your Lordship and your Ladyship that we should refuse the appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lady Paton	[2010] HCJAC 42 Appeal No: XC826/09 OPINION OF LORD EASSIE in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by KRZYSZTOF ENGLER Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: Bovey QC, Govier; V Good & Co

For the Lord Advocate: Creally, M McKay; Crown Agent

4 May 2010

[16] I agree that, for the reasons given by your Lordship in the chair, this appeal should be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Eassie Lady Paton	[2010] HCJAC 42 Appeal No: XC826/09 OPINION OF LADY PATON in APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003 by KRZYSZTOF ENGLER Appellant; against THE LORD ADVOCATE Respondent: _______

For the appellant: Bovey QC, Govier; V Good & Co

For the Lord Advocate: Creally, M McKay; Crown Agent

4 May 2010

[17] I agree with your Lordship in the chair and have nothing to add.