Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 77

HCA/2016/000030/XM

Lord Justice Clerk

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK, LADY DORRIAN

in

EXTRADITION APPEAL

by

JAROSLAW POFELSKI

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  McCluskey; Faculty Services Limited

Respondent:  D Dickson, on behalf of the Lord Advocate for the Polish Authorities; Crown Agent

25 August 2016

[1]        This is an application for leave to appeal against a decision of the sheriff at Edinburgh to order the extradition of the appellant to Poland in terms of a warrant issued under Part I of the Extradition Act 2003.  The appellant maintains that he was held in custody during periods between 2004 and 2006 and again between 2007 and 2009, yet was not brought to trial on the current charges which had been made against him between 2003 and 2004.  He remained in Poland until 2013 without these matters being resolved.  The appellant asserts that he was held in custody for periods aggregating approximately 4 years.  The grounds of appeal state that “therefore” his extradition would be in contravention of his right to a fair trial within a reasonable time, and would in any event be unjust.  Reliance was placed on articles 5 and 6 of the European Convention on Human Rights, and sections 11 and 14 of the Extradition Act 2003.

[2]        The grounds state that although the appellant gave evidence that he would receive a fair trial in Poland, his evidence should not be substituted for a legal assessment.  The passage of time had been contributed to by the appellant being held in custody for periods aggregating 4 years, between 2004 and 2006, and again between 2007 and 2009.

[3]        It is acknowledged that at the hearing before the sheriff no reference was made to this alleged second period of remand, or to articles 5 and 6 of the ECHR.  This morning Mr McCluskey sought to place before the court a document from a separate litigation in the name of the appellant before the European Court of Human Rights in 2009 relating to alleged delay in proceedings, which he submitted supported the history of remand given by the appellant, but that document appears to relate to cases other than the cases to which the European Arrest Warrant related, judging from the case reference numbers.

[4]        It is notable that the grounds do not allege any error on the part of the sheriff whose decision has been appealed.  All that is asserted is that the extradition of the appellant would be unjust or incompatible with his ECHR rights, on the basis of delay in prosecuting him.

[5]        The court may allow an appeal such as this only if the conditions in subsection (3) or the conditions in subsection (4) of section 27 of the Act of 2003 are satisfied.  The first of these requires that the sheriff ought to have decided a question before him in a different way, such that would require discharge of the appellant.  That implies a need to identify an error on the part of the sheriff.  The second requires that an issue is raised, or evidence available, that was not raised or available at the extradition hearing, and which would have resulted in the sheriff deciding a question before him differently.  Mr McCluskey suggested that the document placed before us fell into that category, but it seems clear that this evidence was available before the sheriff, but was not placed before him.  For that reason Mr McCluskey recognised he could not advance his article 5 point.

[6]        The first problem for the appellant is that in the proceedings before the sheriff no argument was advanced in relation to either article 5 or 6, the argument having proceeded wholly in relation to section 14 of the 2003 Act.  The second is that he now seeks to rely on evidence which was available at the original hearing but was not led.  Finally, there is before us no evidential basis for the assertions of fact upon which the appeal is based.  The sheriff accepted only that the appellant had been remanded between approximately 2004 and 2006, when he was released following acquittal on one or more of the numerous charges he was then facing.  He continued to face other charges when at liberty thereafter.  Criminal proceedings were commenced, ended, and re-raised on more than one occasion.  The sheriff concluded that the requirement to do so was in whole or in part due to the appellant’s non-engagement on at least three or four occasions.  The Polish authorities assert that the delay in proceedings was due to the appellant’s non-co-operation.  The documentation placed before the sheriff asserted that the appellant’s claim that he attended court on at least 50 occasions was not based on truth; and that the proceedings have not been concluded due to the fact of the appellant not residing at the address given, despite the court arranging hearings on at least a dozen or so dates.  The appellant knew that the proceedings had been re-raised, or were live, in 2013, but “thought his attendance was not necessary”.  He left for Scotland in November 2013.  Before the sheriff, his agent accepted that he was a fugitive from justice.  The sheriff considered that the appellant’s primary concern about returning to Poland was not that he might not get a fair trial, but that he might face a lengthy remand, although he offered no evidence in support of this concern in relation to the possible timescales which he would face if returned to Poland.  The sheriff narrates that the appellant’s evidence:

“was entirely unsatisfactory as to the specific facts about the history and status of the Polish prosecutions(s) or the likely future course of those proceedings.”

The appellant’s evidence had not cast doubt on the accuracy of the representations made by the Polish authorities.  Because of the vagueness of his evidence the sheriff rejected it wherever it was in conflict with the statement of the Polish authorities.  The sheriff did not accept that the appellant had made any sufficient attempt to engage with the procedures in Poland.

[7]        The test to be applied where a person maintains that his article 6 rights would be infringed, were he to be extradited to another Council of Europe state, was whether he risked suffering a flagrant denial of justice in the requesting state.

[8]        As has repeatedly been pointed out, a flagrant denial of justice involves a high test:  a breach of the principles of fair trial guaranteed by article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that article.

[9]        A Council of Europe country is presumed to be capable of protecting accused persons from an unfair trial.  It is therefore for the person whose extradition was sought to adduce clear, cogent and compelling evidence capable of proving that there were substantial grounds for believing that such a risk existed.  The appellant has not done so, and in the circumstances we are satisfied that the appellant has not advanced arguable grounds of appeal against the decision of the sheriff and his appeal will be refused.