Scottish Sheriff Court Decisions

IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH

UNDER THE EXTRADITION ACT 2003

 

REPUBLIC OF POLAND v KACPER BURSKI OR BURSKITOWICZ (date of birth 28/08/77) whose domicile of citation has been specified as 24 Rubislaw Road, Hawick

 

Act Ms. R. Lunny Crown Office International Unit for the Regional Court of Lodz, Poland

Alt Mr. Govier, Advocate instructed by Ms. Yeats of Messrs Good + Stewart, Edinburgh

 

Edinburgh 13 September 2010

 

NOTE

Introduction

[1] Following my decision on 13 August 2010 I felt it appropriate to issue a note of my reasons for discharging the accused from these extradition proceedings.

 

[2]The case arose out of a European Arrest Warrant (hereinafter EAW) which had been issued by the Regional Court of Lodz, Poland; No. 18 Criminal Department. The warrant was for the arrest of the accused in order that he could face trial on three charges of fraud and a charge of evading military service. Extradition was opposed on the basis that it would be unjust and oppressive due to the passage of time since the alleged offences and it was also asserted that the accused's Article 8 rights to family life would be violated. 

 

Procedural History

 

[3] The case first called at Edinburgh Sheriff Court on 15 March 2010 following the accused's arrest on the EAW. The accused accepted that he was the Kacper Burski named in the EAW and bail was granted pending a full hearing. After sundry procedure evidence was heard from the accused on 1 July 2010 and the case was adjourned until 13 August for full submissions by parties. After hearing argument I discharged the accused giving reasons orally at that time. No appeal has been taken against this decision in terms of section 28 of the Extradition Act 2003 and the time limit for such an appeal lapsed some time ago.

 

The Circumstances

 

[4] The EAW contains four offences. The first three charges are related allegations of fraud said to have been committed in December 2003. The fourth charge concerns an allegation that the accused evaded compulsory military service between 1999 and 31 December 2005. At the start of the hearing on 1 July 2010 it was conceded on behalf of the Lord Advocate that extradition could not be considered in relation to the fourth charge since it did not satisfy the dual criminality test requirement specified in section 64(3)(b) of the 2003 Act. On the other hand it was accepted by the accused that the fraud charges satisfied the conditions specified in section 64(2); the allegations arose outwith the United Kingdom in Poland, referred to conduct falling within the European framework list reproduced at Schedule 2 to the 2003 Act at item 8 and on conviction can attract a maximum sentence in excess of 3 years' imprisonment.

 

[5] It was accepted that the three fraud offences were extradition offences and accordingly I was able to answer the question posed in section 10 of the 2003 Act in the affirmative and in terms of section 10(4) move on to consider section 11. Counsel indicated a bar to extradition by reason of the passage of time in terms of section 11(c) and 14 of the 2003 Act. In addition a Devolution Minute had been lodged and received in relation to prison conditions and potential violations of Articles 3, 5(3) and 8 of ECHR. It was agreed to hear evidence about all such matters from the accused. Other evidence was presented in documentary form in terms of section 202 et. seq. of the 2003 Act.

 

[6] In relation to the evidence I found the following facts admitted or proved:-

 

(i) The accused's correct name is Kacper Burski as specified in section A of the EAW. He has never been known as Kacper Burskitowicz.

(ii) The accused operated a replacement windows business In Lodz, Poland with a partner from 2001 until January 2004. The business did not prosper as envisaged and by the second half of 2003 was in financial difficulties.

(iii) The accused continued to seek business until December 2003 and took deposits from three customers as specified in the charges. Suppliers refused to provide further credit to the company. The accused was behind with rental payments for his business premises and in January 2004 was locked out of these premises by the landlord and ceased trading. As a result he was unable to recover any of his business records.

(iv) The accused had resided at the address in Lodz referred to in the EAW until the middle of 2003 when he moved to live with his grandmother at Ulica Kolowa 26/31 Lodz to look after her and save money on rent.

(v) The accused resided there until 14 January 2005 when he left Poland to seek work in the United Kingdom. He stayed with friends for 5 months in London then moved to the Borders area of Scotland where he has lived and worked since then. The accused has lost touch with his former business partner.

(vi) The accused had attended the Polish Consulate's office in 2006 to register his daughter's birth as the first step to securing Polish nationality for her. At that time he gave his full particulars and current address.

(vii) The accused was unaware of efforts by the Polish authorities to contact him regarding the fraud charges until June 2009 when he was refused a new passport by the Polish Consulate in Edinburgh.

(viii) After receiving complaints from the three fraud victims, the Polish authorities began proceedings in May 2004. Despite enquiries the accused could not be traced and on 2 November 2005 the District Court in Lodz ordered the accused be remanded in custody for 14 days when arrested. An arrest warrant was granted on 5 December 2005. A report for the fourth offence was submitted to the prosecutor on 5 February 2007 and a decision to raise proceedings against the accused on that matter was taken on 15 March 2007.

(ix) Following the accused's visit to the Polish Consulate in June 2009 a decision was taken to amalgamate the two cases of fraud and military service evasion and an arrest warrant seeking a 30 day remand was granted on 9 September 2009.

(x) In October 2009 the accused instructed a Polish firm of solicitors to apply to the Regional Court in Lodz seeking safe conduct to return to Poland to face the outstanding charges. Prior to that the accused had offered to repay monies taken from customers for unfulfilled orders amounting to about £600 but this offer was refused. The application for safe conduct was refused by the Court on 23 December 2009. Meantime the Court issued the EAW on 9 December 2009.

(xi) The accused was arrested and appeared in Edinburgh Sheriff Court on 15 March 2010.

(xii) Due to the passage of time from May 2004 to March 2010, the accused having been unaware of the proceedings until June 2009, it would be unjust and oppressive to order his extradition to face trial on the three offences of fraud.

 

[7] I accepted the accused as a credible and reliable witness. There was very little in the way of cross examination of the accused on behalf of the Lord Advocate. I did however ask him a number of questions about his movements after the date of the alleged offences in December 2003 until his arrival in the United Kingdom and his actions thereafter to satisfy myself whether he had been a fugitive or not.

 

Submissions on behalf of the accused

 

[8] Counsel directed me to Gomes and Goodyer v Trinidad and Tobago [2009] UKHL 21 at paragraph 31 where reference is made to the well known dicta of Lord Diplock from his speech in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at pages 782 and 783. In Gomes the Committee noted the statement of Lord Diplock at page 784 of Kakis where he said:-

"the gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would render his return to stand his trial oppressive."

Counsel submitted that the present case fell at the lower end of the spectrum in extradition cases compared to for example the crimes of trafficking in substantial amounts of cocaine ( Goodyer), drugs trafficking and possession of a firearm and ammunition (Gomes) and murder/culpable homicide in the case of Kakis.

 

[9] In relation to Kakis (supra) Counsel submitted that the accused in the present case should be considered as falling within the so-called Diplock 2 category when considering the effect of the passage of time and whether it would be unjust and oppressive to extradite. At page 783 of Kakis Lord Diplock said:-

"As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."

 

[10] I was then referred to the opinion of Lord Clarke in Campbell v Her Majesty's Advocate [2008] HCJAC 11 at paragraph [48] where he referred to the speech of Lord Russell of Killowen in Kakis (supra) at page 785 which said:-

"It is not merely a question whether the length of time passed would make it unjust or oppressive to return the fugitive. Regard must be had to all the circumstances. Those circumstances are not restricted to circumstances from which the passage of time resulted. They include circumstances taking place during the passage of time which may ... give to the particular passage of time a quality or significance leading to a conclusion that return would be unjust or oppressive."

Lord Clarke commented in Campbell as follows:-

"That passage appears to me, with respect, to emphasise succinctly that the focus is not principally on the length of time that has passed and the reasons for it, but rather the demonstrable effect that any such passage of time has had on the individual in question."

 

[11] Counsel made it clear that he was not suggesting any bad faith or impropriety on the part of the Polish authorities. He did however submit that the period in excess of 6 years from the reporting of the allegations of fraud to the accused's arrest on the EAW in March 2010 met the passage of time test set out in section 14 of the 2003 Act in the circumstances of the present case.

 

[12] Counsel referred to Gomes (supra) at paragraph 19 where Lord Diplock's consideration of passage of time in this context and the meanings of the words "unjust" and "oppressive" are set out in two paragraphs. I was urged to consider the accused's evidence and hold that the delay in proceedings was not due to the accused "fleeing the country, concealing his whereabouts or evading arrest". An explanation had been given why he could not be found at his place of business and previous home address. He had not been in touch with his mother around the time the authorities contacted her. He had travelled from Poland to London by bus in January 2005 and had had his documents checked. He had not changed his name and had given Polish authorities details of his whereabouts in Scotland in 2006. Once he became aware of the outstanding Polish warrant in June 2009 he had taken steps through his family and then through a solicitor to offer to repay the deposits taken from customers. When this initiative was refused he tried to secure safe passage back to Poland to face the allegations and sought an undertaking that he would not be incarcerated prior to trial but this was refused also.

 

[13] Counsel contrasted the gravity of the present charges of fraud with the charge in Kakis (supra) and referred to Lord Diplock's speech at page 784:-

"The offence in respect of which the extradition proceedings were brought is indeed a grave one, that of murder, though your Lordships have been informed that the charge on which he would be tried if he were to return to Cyprus would be the lesser one of culpable homicide .... The gravity of the offence is relevant to whether changes in the circumstances of the accused which have occurred during the relevant period are such as would affect the court's decision to stand his trial oppressive;"

Counsel conceded that in the recent case of Allen v Her Majesty's Advocate [2010] HCJAC 74 which involved a similar period to the present case where the accused had not been a fugitive had, despite a marked improvement in the accused's circumstances in the interim, not prevented him from being extradited. (See in particular paragraphs [11], [12] and [15]) He had however been sought on a charge of assault to the danger of life or attempted murder.

 

[14] Counsel referred again to Gomes at paragraph 33 and contended that in the present case after the passage of over 6 years from the alleged offences a fair trial would be impossible. The accused had been suddenly locked out of his business premises and had lost all of his records. He had not been in Poland since he left in January 2005 and had lost contact with his former business partner, Rafael Sinilac, who would be a vital witness at any trial.

 

[15] In light of recent decisions by the Appeal Court Counsel did not raise and Article 3 argument in relation to Polish prison conditions but he did highlight the accused's family circumstances. He had been in continuous employment since coming to live in Scotland in 2005 and had a girlfriend and daughter to support. Counsel submitted these were relevant circumstances to take into account when considering passage of time and oppression but could also be taken into account in terms of Article 8 of ECHR and section 21 of the 2003 Act. The charges in the present case were considerably less serious than those in the cases referred to and consequently the passage of time did not require to be so long for it to become unjust and oppressive to extradite. By contrast the periods of time in Goodyer and Gomes (supra) were about 4 years and 7 years respectively both clearly were fugitives having failed to appear at court when on bail for the offences.

 

Submissions on behalf of the Lord Advocate

 

[16] Ms. Lunny for the Lord Advocate accepted that the period of time under consideration was from the date of the alleged offences in December 2003 until the accused's appearance in court on the EAW in March 2010. In terms of Kakis (supra) it was necessary to look at the complete chronology. As regards whether the accused's case fell into the so-called Diplock 1 or 2 categories I was referred to the terms of the EAW at sections E and F which indicated that the accused had avoided the authorities in Poland before fleeing the country in January 2005.

 

[17] The nature of the allegations was such that it would not become apparent to the victims until early in 2004 that frauds had occurred. The decision to indict the accused on the fraud charges which was taken in May 2004 should no delay on the part of the Polish authorities. The EAW narrated that "the suspect defaulted on the summons served thereon and did not live at his usual address of residence." This was indicative of actings on the part of the accused falling into the Diplock 1 category. The Polish authorities made various checks in an attempt to trace the accused including interrogating his mother before ordering his remand in November 2005 and issuing a domestic arrest warrant in December 2005.

 

[18] Polish authorities had no knowledge of the accused's whereabouts until June 2009 when he had sought to obtain a temporary passport from the Consulate General in Edinburgh. The two outstanding cases were amalgamated and motion to remand for 30 days on arrest was granted on September 2009 which seemed to be within a relatively short period of information as to the accused's whereabouts being discovered.

 

[19] The EAW narrated that the original 14 day remand order granted for the fraud offences in November 2005 was insufficient to seek an EAW. However once the fraud charges were associated with the military service evasion charge it was possible to secure a 30 day remand order thus meeting the threshold for seeking an EAW. The remand order was obtained in September 2009, the EAW was issued in December and the accused was arrested and brought before Edinburgh Sheriff Court in March 2010. Thereafter the date for the extradition hearing had been postponed on three occasions on defence motion to allow further time to prepare and on another occasion due to lack of court time.

 

[20] Ms. Lunny's view was that the EAW narrated a chronology in keeping with that of a fugitive and the Accused should be considered as falling within Diplock 1. If the court accepted this contention then the chronology of the case was within acceptable bounds.

If however the court considered the accused had been unaware of efforts to bring him to court promptly in Poland and the case fell into the Diplock 2 category, there were no "striking and unusual features" in the accused's personal circumstances; he was the sole breadwinner for his partner and their young child. As regards any possible injustice the accused would have the protection of ECHR and the right to a fair trial in terms of Article 6 if returned to Poland under the EAW.

 

[21] So far as the offences themselves were concerned the crime of fraud is one of the offences contained in the European framework list and that being so it was not for the court to look behind that fact and become involved in a consideration of the facts or the likely sources of evidence to support or defend such proceedings. These were matters for the requesting state to consider at any trial should extradition be ordered.

 

[22] I was referred to Kovac v Regional Court in Prague, Czech Republic [2010] EWHC 1959 (Admin) where an accused was sought for offences of abduction and coercion of a young girl into prostitution for which he had been sentenced to nine years' imprisonment in his absence. The offences had occurred in 1993/94 and no action was taken against the accused until 2008. It was said that the circumstances of that case were "borderline" and on appeal the decision to extradite was set aside. Ms. Lunny pointed out that although the charges were much more serious than the present case the court had noted the very long period of delay, that accused had a settled lifestyle in the UK and the degree of hardship they would suffer if he was extradited might amount to oppression, there had been no expectation on the part of Kovac that his extradition would be sought until 2006/7 and there was an absence of any explanation from the requesting state as to its inaction during the period in question. By contrast in the present case while the offences were less serious so was the period. There was a reasonable chronology. If the accused was extradited his girlfriend, being Polish and child, could if necessary relocate there to her family pending any trial and sentence of imprisonment. I was urged to reject the accused's objections and order the accused's extradition.

 

 

Discussion

 

[23] From the chronology of events contained in the EAW and referred to at paras [16] to [18] above it is clear that the alleged offences are at the lower end of the extradition spectrum. That said they are European list offences and in terms of the framework decision of 13 June 2002 (2002/584/JHA) all such cases are subject to the European Convention-see for example Gomes (supra) at para 35 which is quoted favourably in Allen (supra) at paragraph [6].

 

[24] It seems clear from the terms of the EAW that such a course might not have been possible had only the fraud offences been outstanding. When the other charge relating to evasion of military service was discovered and matched up it was then possible for the Polish authorities to seek an EAW. It could not be said that the initial period from the dates of the alleged offences in December 2003 to the decision to indict in May 2004 involved any delay. Similarly the period from June 2009 when the accused's whereabouts became known to the granting of the EAW in December 2009 and its enforcement in Scotland in March 2010 could not be said to be unduly long.

 

[25] Of more concern is that I believe the accused in relation to his visit to the Polish Consulate in 2006 to register his daughter's birth in order to set in train processes for her to secure Polish citizenship like her parents. This procedure had to be done soon after the birth of the child and the accused provided his details at that time. Thereafter the child had to visit Poland within a year of her birth and this took place when the accused's girlfriend took the child to Poland to see her family. The accused indicated that he did not wish to go on this visit and he had not left the United Kingdom since his arrival in Scotland in the middle of 2005.

 

[26] The accused had lived openly in this country and had used his correct name throughout. He had visited the Polish Consulate in Edinburgh on two occasions and provided his particulars including current address. His actions had led to his discovery and arrest. The accused had thereafter been proactive in seeking to recompense the complainers in the fraud charges as he was now in a better financial position. He had also instructed a Polish lawyer to attempt to secure safe conduct in order that he might travel to Poland at his own expense to face the charges. This motion was considered by the Regional Court on 23 December 2009 but rejected out of hand as from their viewpoint the accused had been "avoiding the authorities since 2005". I accept that the court was entitled to exercise their discretion in that way. By the date of that decision they had in fact granted the EAW on 9 December and procedures were set in train which culminated in the accused being arrested in Scotland at his home and being brought to this court in March 2010.

 

[27] Normally it is the case that when a requesting state determines to seek extradition from the country in which the accused is residing they will not entertain any direct requests from the accused or his agents until the process has been concluded save to provide such information as is required for proceedings in the other jurisdiction. I am aware however that in some cases involving relatively small sums of money restitution has been made and the proceedings have been withdrawn. That is entirely a matter for the requesting state to do as it sees fit in the circumstances of individual cases. In the present case the requesting state has entertained no such requests but has very fairly provided this court with copies of the relevant correspondence and interlocutors dealing with their response to the application for safe conduct. However in doing so they have left this court to deal with the EAW according to the law of this country as set out in the 2003 Act which at various stages places a discretion upon this court to deal with a case on its individual circumstances.

 

Decision

 

[28] While the offences are of a type contained in the European list and the whole ethos of EAW proceedings under Part 1 of the 2003 Act and European framework document is to provide a simplified and swift system of surrender of suspected persons for prosecution-see Recital 5 of the framework decision, the United Kingdom in becoming a member of the participating countries has enacted the 2003 Act with certain safeguards one of which being in relation to the passage of time from the date of the alleged offences until extradition proceedings are commenced in this country.

 

[29] The present offences are European list offences carrying with them a potential maximum sentence of 8 years' imprisonment for each offence. It appeared that the accused was a first offender and I accepted the total sums involved amounted to around £600. On the face of the EAW it appeared that those offences alone were not sufficiently serious to trigger a request for an EAW. It was not clear from the EAW what if any steps had been taken to ascertain the accused's whereabouts from 2005 to 2009. I accepted the accused's evidence that in 2006 he had informed the Polish authorities of his whereabouts when registering the birth of his daughter with the Polish Consulate in Edinburgh. However it would appear this information was not assimilated with other records held by the Polish authorities. Some action to check databases and make other enquiries was carried out in 2005 and further "search measures were taken with a view to ascertaining the suspect's whereabouts" in relation to the military service evasion charge in 2007, without success.

 

[30] There was a spell from March 2006 when the accused registered the birth of his daughter to June 2009 when he was refused a Polish passport where little of no action appears to have taken place. There seems to have been no system to check on details given by Polish nationals abroad to their Consul which could be fed into systems in place to manage outstanding arrest warrants. I accept that the accused was unaware of the outstanding proceedings until he was advised of the problem in June 2009. It follows from that decision that I found the accused a credible and reliable witness and preferred his evidence to the material contained in the EAW. While the EAW related that the accused "defaulted on the summons" served regarding the fraud charges the tenor of this language is some way short of what is seen in many accusation warrant requests where the accused has failed to re-appear at court or obtemper police bail or respond to documents sent to a proper domicile of citation. In the present case the EAW indicates that the summons was sent to the accused's "usual address of residence" which appears in section A of the warrant. However this address is one which the accused said on oath he left in the summer of 2003 for family and financial reasons. I accepted his evidence on this point. What the EAW appears to describe is a situation common to the courts in this country where official documents are returned marked "gone away", "shut" or "not called for". This sort of information may be sufficient to seek an expediency warrant but cannot form a basis for asserting a deliberate failure to appear. Accordingly I consider the accused was not a fugitive and falls into the Diplock 2 category.

 

[31] In that context the court is, in terms of Kakis (supra) bound to look at the effects of the delay were the trial to take place later this year or in 2011 instead of 2004 had it taken place "with ordinary promptitude" with the accused being traced at the address he resided in Lodz prior to leaving for the United Kingdom in January 2005. While all of the cases referred to on this point involved significantly more serious charges and usually much longer passages of time it seems reasonable in the present case to take into account the relative lack of gravity of the present offences as part of the circumstances to be considered in determining whether extradition at this juncture would be unjust and oppressive.

 

[32] As regards the "unjust" part of the equation that is directed "primarily to the risk of prejudice to the accused in the conduct of the trial itself"- Kakis (supra) at page 782. Although it is not appropriate normally for the court to look at the evidence in such cases the accused's position was that he accepted he had taken deposits from the three complainers mentioned in the fraud charges and had subsequently failed to supply them with the promised windows or refunds. The accused however maintained that documentation in his former firm's business records would have confirmed his position that he had intended to fulfill the orders at the time but poor cash flow and a withdrawal of credit and goods from suppliers precluded this. Such documentation was lost when the premises were seized by the landlords in January 2004 but it would undoubtedly have been easier to speak to the details of these matters then than now. In addition the accused said that he had not seen his former business partner for 5 years since leaving Poland and had lost touch with him completely. It appeared this individual would be well placed to give evidence on the viability of the accused's business at the material time.

 

[33] It is significant too that with the deletion of the military service evasion charge from the EAW one wonders whether there would have been an EAW at all in relation to the fraud charges. In terms of Kovac (supra) I am entitled to take into account the settled lifestyle the accused has in this country, the useful job he has been doing since he settled here and the degree of hardship he would suffer if extradited and remanded in custody for trial. I also take into account the steps adopted taken by the accused from June 2009 when he discovered there were outstanding proceedings against him. He endeavoured to come to an arrangement with the complainers failing which he was prepared to travel back to Poland to face these charges at his own expense and hoped that he would not be remanded for trial. His circumstances can be contrasted to those in the Asil Nadir case where the accused failed to appear at a court diet where he faced numerous charges of false accounting and theft involving many millions of pounds but was able to secure safe passage back to the UK to resume his defence to the charges.

 

[34] In all of the above circumstances it appears to me to be unjust and oppressive to order the return of the accused to Poland on the EAW due to the passage of time since the alleged offences. There has been a significant passage of time given the nature and gravity of the offences, the loss of evidence by the accused, that he was not a fugitive and was unaware of outstanding criminal charges in relation to his failed business for more than five and a half years, the actions of the authorities in pursuing matters which involved delays from 2005 and in particular from March 2006 when the accused's whereabouts were known by the Polish authorities in Edinburgh. By contrast there is the conduct of the accused during the period, with which I found no fault and his current improved circumstances. Accordingly I answered the question posed in section 11 of the 2003 Act in the affirmative that there was a bar to extradition by reason of the passage of time and ordered the accused's discharge. It was not necessary for me to consider section 21 of the 2003 Act or the Devolution Minute tendered in this case.