APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Bonomy Lord Emslie	[2010] HCJAC 65 Appeal No: XC225/10 OPINION OF THE COURT delivered by LORD BONOMY in Appeal under section 26 of the Extradition Act 2003 by GRZEGORZ HARAZIN Appellant; against THE LORD ADVOCATE Respondent: _______

Appellant: Govier; Adams Whyte

Respondent: Poole; Crown Agent

24 June 2010

[1] On 29 January 2010 the sheriff at Edinburgh ordered the extradition of the appellant to the Republic of Poland. He did so in implementation of a European Arrest Warrant (EAW) issued on 18 November 2008 by a judge at the District Court at Kielsa, Poland.

[2] On 4 March 2010 the appellant lodged a Note of Appeal in terms of section 26(1) of the Extradition Act 2003 (Act). He challenged the sheriff's determination on three grounds: (a) the warrant failed to conform with the requirements of subsections (2) and (6) of section 2 of the Act in that it did not contain particulars of "any other warrant" issued in Poland for the appellant's arrest; (b) the warrant failed to conform to requirements of section 65(3) of the Act in that it failed to specify in respect of each of seven offences of which the appellant was convicted conduct that constituted an offence under the law of Scotland; and (c) extradition would not be compatible with the appellant's Convention rights in terms of section 21(1) of the Act in that he would face a real risk of being subjected while imprisoned in Poland to treatment contrary to the terms of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In making findings to the contrary of each of these propositions the sheriff had erred; had the sheriff decided these matters as he ought to have, he would have been bound to discharge the appellant; the court should accordingly allow the appeal and order the appellant's discharge in accordance with section 27 of the Act. In effect success on any one of the three grounds would result in the appellant being discharged relative to each affected offence.

[3] The background to the case is set out by the sheriff in paragraph 9 of his report as follows:

"Before dealing with the charges individually, I should set out the general background which the Appellant described in evidence. In summary he indicated that in 1997 he had leased a farm on a 15 year lease. According to him there was then in existence a government scheme whereby farmland which had been unused for a period of time was leased at an advantageous rate to young farmers. Cheap loans were also available in relation to stocking and equipping these farms. In terms of the Appellant's evidence, the law changed in 2001 or 2002, and the previous owner of the farm was able to reclaim it as part of the reprivatisation of the land. According to the Appellant, some time in 2003 he was put off the farm, and he had to leave everything behind. The Appellant also testified that in terms of the original scheme, a tenant could buy a farm after one year had elapsed, although the period was later changed to three years. According to the Appellant, an initial request which he had made to purchase the farm which he tenanted was caught out by this change in the law. After three years, he had made a second request to purchase the farm, but was told that he wasn't able to buy the whole farm, certain parts of it were not for sale any more. In relation to this background, the charges themselves, in particular charges III.1 and V, support the suggestion that the Appellant did acquire the tenancy of a farm, possibly along with another individual, Marek Zieleznik, and no doubt for whatever reason that tenancy did not end well."

[4] In relation to the third ground of appeal Mr Govier, counsel for the appellant, acknowledged that, in light of the decisions of this Court in Engler v The Lord Advocate [2010] HCJAC 42 and Kropiwnicki v The Lord Advocate [2010] HCJAC 41, it was not open to the appellant to invite this Court as composed on this occasion to allow the appeal on this ground. He also made no motion to remit the case to a full bench of the Court. His understanding was that special leave was to be sought from the Supreme Court in relation to a similar ground of appeal in the case of Kropiwnicki. He therefore maintained, rather than abandoned, that ground in case Kropiwnicki should appeal successfully. We noted his position and heard no further argument on that ground.

[5] The arguments advanced by Mr Govier involved consideration of the detailed terms of the EAW. The EAW bore to be a Part 1 warrant, that is a warrant to which Part I of the Act applies; in this instance the Republic of Poland is the designated category 1 territory, to which section 2 of the Act applies. The provisions of section 2 so far as relevant to this case are as follows:

"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(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]
[1] of an offence specified in a warrant by a court in a 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 purpose 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;

...

(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."

These provisions are designed to give effect to Article 8 of the Framework Decision of the Council of the European Union of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (Framework Decision), prescribing the content and form of an EAW. So far as relevant to the present case the provisions of Article 8 are these:

"1. The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a). the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g) if possible, other consequences of the offence.

..."

The Article 1 statement of the definition of the EAW and the obligation to execute it have no particular bearing on the appeal. Article 2 requires that the sentence involved must be at least 4 months imprisonment and also contains the dual criminality provision.

[6] It can be seen readily that the Act does not blindly mirror the provisions of the Framework Decision. In particular section 2(6)(b) and (c) list as information to be contained in an EAW "particulars of the conviction" and "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence", whereas Article 8 apparently envisages evidence of only one matter which is variously described as "an enforceable judgment", "an arrest warrant" or "any other enforceable judicial decision having the same effect".

[7] Mr Govier's principal submission on the first ground was that the sheriff had erred in deciding that the EAW complied with the requirements of a Part 1 warrant. There was plainly something missing from it. It was counsel's experience, and apparently that of the sheriff according to paragraph 5 of his report, that someone sentenced to a term of imprisonment in Poland was not taken into custody immediately but summoned to prison at some later stage to serve the sentence. Against that background, according to Mr Govier, there had to be some further judicial order giving effect to the conviction and sentence imposed. That there were other judicial orders was confirmed, in his submission, by the terms of a letter of 17 August 2009 which had been before the sheriff, but on which counsel had not relied at that stage. He invited us to read it as confirming what he submitted was quite clear, that is that there were omissions. The letter was a communication from the District Court at Kielce to the Crown Agent giving certain particulars of the seven cases in which he was convicted and sentenced and which feature in the EAW and concluding with these words:

"The issue of EAW for Grzegorz Harazin to serve imprisonments as adjudicated with the verdicts is a result of his hiding to escape the execution of these penalties, earlier unsuccessful search in Poland connected with the arrest warrants and finally information that he was hiding to escape penalties, leaving the area of Poland without notifying the appropriate Courts where he resided."

Under reference to Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, counsel was critical of the sheriff's opinion that the omission of reference to any other warrants was not material. Finally he contended that the sheriff had misinterpreted the ratio of Louca v Office of Public Prosecutor in Bielefeld, Germany [2008] EWCH 2907, subsequently affirmed by the Supreme Court at [2009] UK SC 4, [2009] 1 WLR 2550, as determining that reference to the judgment that was to be enforced, the foundation judgment, was sufficient compliance with the requirements of section 2(6)(c).

[8] In her response on behalf of the Lord Advocate, Miss Poole referred to a number of authorities from which, she submitted, clear principles as to how the court should approach the interpretation of section 2 of the Act can be distilled. The Act should be interpreted in the light of its purpose which was to give effect to the United Kingdom's obligations under the Framework Decision, to improve judicial cooperation between nations to tackle crime, and to provide a quick and effective framework for extradition. Since Part 1 of the Act including section 2 was designed to give effect to the Framework Decision, it should be interpreted in light of the wording and purpose of the Framework Decision. Its interpretation should be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. These various propositions are not controversial.

[9] Miss Poole further submitted that, in relation to the requirement in Article 8 to reflect in the EAW the authority on which it was based, the emphasis was upon the judgment that the EAW sought to implement. There was no requirement to include reference to all arrest warrants pertaining to an accused person. In support of that proposition she founded upon in particular Louca and also Ruiz and others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid
[2007] EWHC 2983 (Admin), [2008] 1 WLR 2798. She finally submitted that neither counsel's, nor indeed the sheriff's, general understanding of criminal procedure in Poland nor the terms of the letter of 17 August established the existence of other warrants. The letter was open to a number of interpretations. Polish criminal procedure was a matter for proof and on this particular point no evidence had been presented.

[10] Although Mr Govier was able to point to dicta emphasising that an EAW which does not satisfy the requirements of section 2 of the Act will not be valid, for example Lord Hope of Craighead at para 28 of Office of the King's Prosecutor, Brussels, it is plain from other authoritative statements that courts should not take an unduly technical approach to the interpretation of the requirements of the Act. That approach, along with the application in practice of the principles set out by Miss Poole, are encapsulated in paragraph 8 of the speech of Lord Bingham of Cornhill, dealing with another section of the Act, in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, where he said:

"8. The short question is whether this arrest warrant, complying with the formal requirements of the Framework Decision, is invalid under the 2003 Act because there is no separate certificate, and no express certification, to the effect specified in section 64(2)(b) and (c). If it is, the effect of the Act would be to introduce a requirement not found in the Framework Decision and thereby to impede, to some extent, achievement of the purpose of the Framework Decision, by reintroducing an element of technicality which the Framework Decision is intended to banish and by frustrating the intention that a warrant in common form should be uniformly acceptable in all Member States. Happily, as I think, the House is not driven to that conclusion, since I consider that the Spanish judge, by signing the warrant, has given his authority to and thereby vouched the accuracy of its contents. Thus the warrant is in substance if not in form a certificate by the judge. It would be inconsistent with the trust and respect assumed to exist between judicial authorities to insist on any additional verification, which would impede the process of surrender but do nothing to protect the rights of the appellant."

The general principle is succinctly expressed by the same judge in Office of the King's Prosecutor, Brussels, coincidentally also at paragraph 8, in these words:

"8. Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the decision required, it did not intend to provide for less."

[11] We consider first what is required in terms of Article 8(1). Article 8(1)(c) provides that the EAW shall contain "the following information set out in accordance with the form contained in the Annex". The requirement of 8(1)(c) is that there should be "evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2". The form of EAW in the Annex contains the following section:

'(b) Decision on which the warrant is based:

1. Arrest warrant or judicial decision having the same effect;

...

Type: ...

2. Enforceable judgment: .....

....

Reference: ....'"

An analysis of Article 8(1) and the Annex and the terms of section 2(4)(b) and 2 (6)(c) of the Act led to the court in Louca rejecting the argument that "any other warrant" in section 2 (4)(b) and 2 (6)(c) of the Act included all warrants relating to the matter whether current or superseded, with reference in particular to previous EAW's in relation to the same matter. Lord Mance, with whom the other judges agreed, interpreted the requirements of these subsections as follows:

"The question certified by the Divisional Court is: 'Whether the reference to 'any other warrant' in sections 2 (4)(b) and 2 (6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European Arrest Warrant is based.' For the reasons given above and those given by the Divisional Court, the answer is that the reference is to any domestic warrant on which the European Arrest Warrant is based, and not to any other European Arrest Warrant which may have been issued on the basis of any such domestic warrant."

[12] The EAW in the present case contains, in relation to each of the seven convictions, clear reference to the domestic judgments which are the foundation for the EAW. Section B1 of the warrant sets out what is described as the "final and binding sentence" in relation to each conviction, and commences with the location of the Regional Court which pronounced judgment. In the case of three of the convictions the sentence was suspended pending satisfaction of certain conditions which were ultimately not satisfied. The other four are unqualified. The first two are examples of these different circumstances:

"I. Sad Rejonowy in Kielce dated on 10 October 2003 in case file IXK 281/03 on the basis of the decision issued by Sad Rejonowy in Kielce dated on 19 December 2005 file number IXK 281/03 to execute the previously suspended punishment;

II. Sad Rejonowy in Opatow dated on 25 May 2006"

Following similar statements in respect of each of the other convictions, there follows section B2 in which the files relative to each case are listed. These files are also referred to in B1, except in the case of the second one quoted above. In each case the relevant file numbers listed are identical in B1 and B2. The list of file numbers is followed by section C "Information concerning the punishment" containing details of the sentences imposed and remaining to be served. There is thus in each case a full statement of the judicial decision which is the foundation for the EAW.

[13] We accept the submission of Miss Poole that counsel's understanding that there must be some other warrant to give effect to sentences where the appellant was not immediately imprisoned is no basis for concluding that there are relevant warrants extant to which no reference is made in EAW. In the absence of any evidence to indicate that that is so, their existence is a matter of speculation.

[14] So far as the letter of 17 August 2009 is concerned, its terms do not support the submission that there are in existence warrants for the imprisonment of the appellant beyond the material referred to in sections B and C of the EAW. There is no evidence before us from which we would be justified in drawing the inference that other warrants exist.

[15] We are accordingly satisfied that the requirements of Article 8(1)(c) have been fulfilled. The domestic decisions or judgments on which the EAW is founded have been specified and there is no evidence that any "enforceable judgment", "arrest warrant" or other "enforceable judicial decision" on which the EAW is founded has been omitted. It follows that no document that could be said to fall within the terms of section 2(6)(c) of the Act has been omitted. We agree with the sheriff when he said:

"I consider that what there was in the European Arrest Warrant in relation to each of the charges was sufficient compliance with the requirements of section 2(6)(c). The existence of criminal proceedings and the fulfilment of the minimum sentence requirements were evidenced in respect of all charges. In terms of Louca, that was what was required."

As we have already noted, that reference to Louca is to the Divisional Court judgment which was in due course upheld by the Supreme Court as cited above. In relation to the possibility of the existence of other domestic warrants the sheriff said this:

"Counsel supposed the existence of further court proceedings relative to these matters. It appeared to me that the omission of such information, assuming it existed, was not material. I reach the same view now in relation to the arrest warrants specifically mentioned in the letter of 17 August."

For the reasons we have already given, we do not accept that the letter of 17 August refers to other arrest warrants. It is therefore unnecessary for us to deal with the effect of the existence of such warrants on the validity of the EAW. We are, however, inclined to think that the sheriff's view on that is correct.

[16] The second ground on which the appellant challenged the validity of the EAW as a Part 1 warrant was that the sheriff had wrongly decided that each of the offences of which the appellant was convicted was an extradition offence in terms of section 65 of the Act. The requirement in issue is that set out in section 65(3)(b) stipulating that the appellant's conduct must constitute an offence under the law of Scotland if it had occurred in Scotland. Mr Govier's submission was that there was an absence from the EAW of any reference to the appellant's conduct other than the statement of the conviction and that did not enable the court to determine that his conduct would constitute an offence in Scotland. That applied to each of the seven convictions. This omission was fundamental since the court was obliged in terms of section 10 of the Act to decide at the outset of the extradition hearing whether the offences in the warrant were extradition offences.

[17] Before the sheriff the appellant gave evidence about the circumstances of each of the charges. The offences fell broadly into two categories, viz offences of the nature of theft or embezzlement on the one hand and fraud offences on the other. It was Mr Govier's submission that, in light of the appellant's evidence, in no case did the circumstances amount to an offence in Scotland. In particular in relation to the fraud charges there was no indication in any case that the appellant was aware of the falsity of any representation and thus that he had the mens rea necessary to constitute the offence in Scotland. Mr Govier also relied on the fact that the evidence given by the appellant was unchallenged on behalf of the respondent who led no evidence.

[18] In response, Miss Poole again made submissions about the principles which should be applied to the determination of this question, which are not controversial. We do not require to review the authorities relied upon save to record that we find assistance in the judgment of the Divisional Court in Zak v Regional Court of Bydgoszcz, Poland [2008] EWHC 470 (Admin) where it is stated that, in order to answer the question whether the conduct would constitute an offence in Scotland, attention should be focused on the conduct complained of or relied on in the warrant and any further information by the requesting authority, not on whether the ingredients of the Polish offence have a precise equivalent under Scots law. Determining that question may be a matter of inference from the conduct spelled out in the warrant and further information. With that view we respectfully agree.

[19] In section E2 of the EAW headed "Circumstances of committing the crime" information is provided in relation to each of the convictions. We repeat the statement in relation to the first two convictions which we cited earlier in this opinion:

"I. On 28 November 2001 in Kielce, he stole the car make 'Ford Escort' Reg. No. KIV -2602 worth £18,000 PLN acting at the loss of Cezary Radomski;

II. On 26 January 1999 in Opatów, Swietowkrzyski Administrative District, he used the previously forged sale agreement of 'Krukowiak' dated on 26 January 199 signed between Grzegorz Swierkot and Grzegorz Harazin in the bank Bank Polska Kasa Opieki Spólka Akcyjna I Oddzial in Opatów to account for the credit No 3/MR/02r/98;"

Similar, and in some instances much more detailed, information was given in relation to each of the other convictions. That was followed by section E3 headed "Legal category and qualification of the crime (crimes)" under which were listed the articles of the Criminal Code contravened in respect of each conviction.

[20] Miss Poole went on to submit that there was plainly sufficient material before the sheriff to enable him to determine whether the appellant's conduct in each case would amount to a crime in Scotland. She further submitted that the evidence he gave before the sheriff was irrelevant to the question. That evidence was in reality a challenge to the correctness of the convictions rather than an amplification of the information relating to the conduct constituting the offences. She invited us to hold that the sheriff's reasoning set out in paragraphs 6 to 19 of his report constituted a sound basis for determining that each of the convictions related to an extradition offence.

[21] We accept the submissions made by Miss Poole. We find no fault with the sheriff's approach or with his reasoning. Before looking in detail at the circumstances of the various convictions, the sheriff concluded in paragraph 8 in relation to the appellant's evidence:

"Having heard that evidence, it appeared to me that the essence of the appellant's testimony was no more than a denial of the facts found by the Polish Courts. An obvious instance of this was charge IV, when the appellant suggested that he was the owner of the items which he was found to have stolen, or dishonestly appropriated, by the court in Poland.

In the grounds of appeal, it is said that the appellant gave evidence as to his conduct, and in relation to what the appellant describes as 'the fraud offences', charges II, III.2, V, VII.1 and VII.2, it is specifically said that the appellant testified that he did not have the necessary mens rea. It appeared to me, however, that in relation to all the charges the requisite intention was to be found in the description of the appellant's conduct, so far as necessary interpreted in light of the provision or provisions of the Polish Penal Code which the appellant was held to have breached. I did not regard consideration of these provisions as getting involved in the niceties of Polish law. It appeared to me appropriate to look at the provisions of the Code in order to assist in determining what the conduct of the appellant must have comprised before he was convicted."

In the circumstances of this case we consider that that was an entirely appropriate course to follow.

[22] The sheriff interpreted the statements of the circumstances of each of the offences with the assistance of the provisions of the Polish Penal Code which were specified as having been contravened, and with the additional benefit of a second translation of the EAW which the Crown obtained when the interpreter at court stated that the English translation of the EAW which accompanied the Polish warrant was a poor translation. The sheriff found that there were no material differences from the point of view of the essentials of the charges. However, he identified one advantage of the new translation as being the translation into English of the names of the various organisations which were mentioned. His approach can be illustrated by reference to the way in which he dealt with the circumstances of charge 1:

"In relation to charge I the original warrant described it thus: 'On 28 November 2001 in Kielce, he stole the car make 'Ford Escort' Reg. No. KJV-2602 worth £18,000 PLN acting at the loss of Cezary Radomski.' In the new translation, it was said that 'He appropriated a Ford Escort car...valued at £18,000 Zlotys, entrusted to him by Cezary Radomski.' The offence is said to be contrary to Article 284.2 of the Criminal (original warrant) or Penal (new translation) Code. I was provided with an English translation of 'The Penal Code'. According to Article 284.42, 'Whoever appropriates a moveable property entrusted to him shall be subject to the penalty or deprivation of liberty for a term of between 3 months to 5 years.' The appellant's explanation was that he was buying this car on hire purchase, and that it had been left behind in a garage on the farm when he had been put off the property; he had not been allowed to recover it. It may well be that the appellant was buying this car on hire purchase, but it is quite clear that Article 284.2 describes an offence of dishonesty, and that the Polish Court have found that the appellant dishonestly appropriated the vehicle. In my view, the appellant's conduct was criminal by the law of Scotland."

The Sheriff proceeded to deal with each of the other cases of theft and fraud in a similar way. Having reviewed the sheriff's analysis of the circumstances, we are satisfied that he correctly determined in each case that the conviction was in respect of an extradition offence.

[23] As we have already recorded above, no submissions were presented in support of the third ground of appeal following counsel's consideration of other recent decisions of this Court. In light of that and the views we have expressed on the first two grounds of appeal, we shall refuse the appeal.