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||Neutral Citation Number:  EWHC 2547 (Admin)
||Case No: CO/2377/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE CRANSTON
|| ANDRZEJ KOMAR
||- and -
||DISTRICT COURT OF TORUN, POLAND
Malcolm Hawkes (instructed by Lansbury Worthington Solicitors) for the Appellant
Julia Farrant (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 05/08/2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Cranston:
- This is an appeal by leave of Ouseley J against the decision of District Judge Blake of 21 May 2015 to order the appellant's extradition to Poland. That is pursuant to a European arrest warrant ("EAW") issued on 17 April 2014 and certified on 19 September 2014. The appellant is on conditional bail. The appeal raises various issues about the application in practice of section 21A(3)(c) of the Extradition Act 2003 ("the 2003 Act") ("the possibility of the relevant foreign authorities taking measures that would be less coercive than extradition of [the person]").
- The appellant is accused of one offence, committed between 2 July 2001 and 1 April 2003 in Czestochowa, Poland, classified in Polish law as 'offences against the credibility of documents'. The EAW states that the Provincial Court of Czestochowa issued a judicial decision of preventative detention on 20 December 2013. The offence can lead to a sentence of up to 12 years' imprisonment. It is particularised as follows:
"…being the owner of the PW 'Agrol' Company and so being authorized to issue documents, acting in short time intervals and with premeditation, with aim to gain material benefit he as the PW 'Agrol' Company has issued in total 1780 VAT invoices for other companies… in which he confirmed untruth as to the fact of sale of diesel oil and he gained material benefit to the amount not less than 420.000 PLN an he made the committing of offence his regular income source." The maximum sentence is stated as one of 12 years' imprisonment.
- There is further information from the Polish judicial authority, the Department from the Supervision of Preparatory Proceedings in Czestochowa. It explains that on 16 April 2003, the appellant participated in a search of his apartment in relation to another set of proceedings. More than 2000 VAT invoices were seized. He made a statement as a witness, but not in relation to the charge contained in this EAW. He was not a suspect at that stage. There was a separate set of proceedings against him and he was wanted in relation to this at the end of 2003. In December 2005, proceedings against him in relation to the present matter were commenced and on 30 May 2006 the decision made to charge him. Proceedings were suspended in November that year when his whereabouts were unknown. At the end of 2006 there was a decision made for his temporary arrest and to search for him in Poland. Almost 7 years later, on 30 August 2013, the Polish judicial authority received information that the appellant was in the United Kingdom. A domestic warrant was issued by the Provincial Court of Czestochowa some 4 months later, on 20 December 2013. Four months after that, the EAW was issued.
- The Polish judicial authority confirms that the appellant was never questioned in the current proceedings. It also confirms that there is "no evidence to prove an attempt to evade responsibility for the committed offences and his being aware of the proceedings started against him". However, it states that for the purposes of the Polish proceedings he was deemed to be "hiding" from the authorities on the basis that he knew that his company documents had been seized, which would lead to the disclosure of the alleged offences. In relation to the Polish judicial authority's knowledge of the appellant's whereabouts, the further information states that when proceedings were commenced in 2005 his location was unknown. The first indication that he was abroad came on 30 August 2013. It also states that searches and checks have been repeatedly carried out to try to trace him between the commencement of proceedings and the issue of the EAW.
Proceedings at Westminster Magistrates' Court
- The initial hearing in this case took place on 24 December 2014 and the extradition hearing was listed for 27 February 2015. The District Judge refused the appellant's application to adjourn proceedings under section 21B of the 2003 Act for discussions to take place between the appellant and the Polish prosecutor regarding the compromise of the EAW. At the hearing, the appellant produced a section 9 statement from Ms Kamila Kwincinska, a Polish speaking paralegal at Lansbury Worthington Solicitors. Under that section of the Criminal Justice Ac 1967, a person acknowledges that if it is tendered in the evidence, the maker is liable to prosecution if he or she has wilfully stated anything which they know to be false or do not believe to be true. Ms Kwincinska's statement was about a telephone conversation she had had with a Polish prosecutor on 26 February 2015 regarding "less coercive measures". The District Judge admitted this statement, refused to adjourn but gave leave for further evidence to be put before him before the next hearing on 24 March.
- At the hearing on 24 March there was a further application to adjourn in order for an application to be made to the Polish court to compromise the EAW. That was refused and the case adjourned for judgment on 24 April. That day there was a third application for an adjournment so that the EAW could be compromised by way of an 'iron letter'. There was a further section 9 statement from Ms Kwincinska before the court regarding a telephone conversation she had had with the Polish prosecutor on 24 March. In this statement she said:
" Prosecutor Nocun… once again stressed that if Mr Komar could be sent back to Poland he would most likely not be kept in custody after the preparatory proceedings have been completed. I asked Prosecutor Nocun whether he would be willing to either withdraw the EAW and issue summons for Mr Komar to attend the Prosecutor's Office or, alternatively, to arrange for a temporary transfer.
 Prosecutor Nocun stated that he could not agree to withdraw the EAW but could certainly consider a temporary transfer…
 I called Prosecutor Nocun [later that day] as agreed. On that occasion, I was told that, further to his consultation with the Prosecutor in charge, Mr Miroslaw Chlad, they have come to a decision that the EAW could be withdrawn only if Mr Komar paid a security for the amount of 50,000 zloty (the equivalent of £8767.28)…
 Further to my telephone conversation with Prosecutor Chlad, he informed me that he could neither consent to replacing the EAW with summons nor to the temporary transfer and he could only consider withdrawing the EAW if Mr Komar paid the security, as specified by Prosecutor Nocun.
 I explained to the Prosecutor that Mr Komar could not afford the security of such a substantial amount. I further inquired why he could not facilitate a temporary transfer as an alternative to extradition.
 Prosecutor Chlad explained that the temporary transfer would not work in practice as once Mr Komar had arrived in Poland, he would be arrested on the domestic warrant.
 I then asked the Prosecutor if an application could be made for the domestic warrant to be withdrawn. The Prosecutor insisted that that was not an option because if the domestic warrant was withdrawn, there would no longer be any basis for the EAW to be issued and therefore, it would have to be withdrawn.
 I drew [the] Prosecutor's attention to the severe consequences of executing EAWs, as recognized by the Council of the European Union which also urged Judicial Authorities' consideration of less coercive methods, other than extradition. In consequence, Prosecutor Chlad suggested an application for the so-called, 'Iron Letter' which, if granted, would provide Mr Komar a guarantee of safe passage and that he would remain free until the final conclusion of the proceedings, provided that he would comply with conditions as ordered."
The extradition proceedings were further adjourned on the appellant's application until 21 May for him to apply to the Polish court for an "Iron Letter".
- On 21 May the appellant's representative notified the court that the application for the Iron Letter had been unsuccessful. The Iron Letter or safe-passage procedure is governed by articles 281-284 of the Polish Criminal Procedure Code, and in general terms is a discretionary guarantee, in the form of a court order, given in relation to a suspect or an accused person that, provided they surrender to the prosecutor or to court on a given date, they shall remain at liberty until the proceedings have concluded. After the hearing before me, the appellant's legal representatives obtained a copy of the reasons given by the District Court at Czestochowa for its refusal of an Iron Letter. That was on the basis that there was evidence the appellant – described as a suspect – was hiding abroad from the Polish authorities. The court noted that the appellant only applied for safe passage following his arrest under the EAW. The court concluded that the appellant's arrest pursuant to the EAW compelled him to take part in the criminal proceedings; and that his attitude indicates that while on bail, he might obstruct the criminal proceedings. Finally, the court concluded that safe passage could not co-exist with an EAW, which itself could not be withdrawn on account of the appellant's alleged behaviour which has impeded the course of the proceedings.
- At the hearing on 21 May, there was then a further application to adjourn the proceedings on the basis of the possibility of a European supervision order being employed. I return to this later in the judgment. The application to adjourn was refused and extradition was ordered.
- The appellant gave evidence before the District Judge. He said that he had moved to the United Kingdom in November 2003 and had been in full-time employment ever since. As to his life here, when Poland joined the EU in 2004 he registered with the Home Office. He lived in Lincoln with his wife who came from Poland. He has two adult children and one grandchild. He accepted running the business, as set out in the EAW, but pointed out that the role of issuing invoices was held by a part-time accountant, whose name he no longer recalls. Moreover, he insisted that he suspended the company's activity in 2002 suggesting that any fraud carried out after that could not have been with his involvement.
- The District Judge found that, as regards section 2 of the 2003 Act, the EAW was a valid warrant. Its purpose was clear and the appellant was wanted to stand trial for the offences.
"I could find nothing on the face of the warrant to lead me to conclude that the [requested person] had been convicted. Box B the decision on which the warrant is based is a 'judicial decisions on preventive detention' rather than an enforceable judgment. At box C a maximum length of sentence is given and there is nowhere on the warrant an indication of any sentence which the [requested person] has to serve. At box E the [requested person] is described as 'suspected' of committing the offence. I did not consider that the remark in box D, 'the trial resulting in the decision' created ambiguity and was satisfied that the purpose of the warrant was clear…"
In relation to section 14, injustice or oppression through passage of time, the District Judge said firstly that it was agreed that the appellant could not be said to be a fugitive. He said:
"I accepted that there had been delay in this case. It was quite simply that the Polish authorities did not know his whereabouts after taking the decision to charge in 2006. When they became aware of his presence in the UK they sought to issue the warrant and to secure his extradition."
The argument as to injustice was dismissed as follows:
"I remained to be convinced that the delay would have a significant effect upon the RP being able to have a fair trial. The nature of the allegation was fraud where no doubt the evidence would substantially consist of written evidence. The allegation was said to have been committed over a period of two years and involved the issue of over 1500 fraudulent VAT invoices and the alleged benefit to the RP was 'not less than 420,000 PLN, which I understood to amount to approximately £74,000.
Further I did not consider… there was any reason to believe the consequences of the delay upon his trial (if any), would not be fairly dealt with by the requesting state in the trial process."
- As regards oppression, the District Judge stated that he did not consider that the degree of harm was significantly more than that suffered by any such person in the position of the appellant.
- The District Judge rejected the Article 8 ECHR argument. He accepted that the appellant's Article 8 rights to private and family life and those of his family were engaged and that he had made his life in the United Kingdom. He accepted that family life would be disrupted in the event of extradition, but found that the public interest in extradition outweighed any other consideration.
- In dealing with the proportionality argument under section 21A, the District Judge referred to the statements from Ms Kwincinska. He accepted that she had had a conversation with a prosecutor at the Polish court about alternatives to extradition but that no agreement had been reached. There was no confirmation that the matter was considered appropriate to be dealt with by an Iron Letter. The District Judge concluded:
"I do not accept at this stage that there is the possibility of the matter being dealt with in a less coercive manner than the extradition which is sought. I remain of the view that the decision of the IJA [judicial authority] to issue the EAW is proportionate given the passage of time and the relatively short period of time the RP's whereabouts have been known."
Section 2: the warrant
- For the appellant, Mr Hawkes submitted that the District Judge was wrong to conclude that the warrant had been clearly issued for the purposes of prosecution. Whereas parts of it indicated that it was an accusation warrant, the appellant is also said not to have appeared for the "trial", and he is referred to as "a sentenced person" with re-trial rights. That, in Mr Hawkes's submission, was consistent with a conviction warrant. Thus there was a real ambiguity in the EAW.
- The purposes of the EAW must be discerned from the document as a whole: Asztaslos v. Szekszard City Court, Hungary  EWHC 237 (Admin), . In interpreting the warrant the court must adopt a cosmopolitan approach, without assuming that words and phrases in an EAW have the same significance as they do in English criminal procedure: In re Ismail  1 AC 320.
- In my view, the fact that box D contains the statement that the appellant did not appear at the "trial resulting in the decision" does not create ambiguity in the light of the clear indication in boxes B and C that he has not been convicted. The reference to the "decision" is to the decision at box B, the judicial decision on preventive detention. The notion of the "trial" can be easily understood, adopting a cosmopolitan approach and making allowances for different understandings of the concept of a trial, as the Polish court hearing on 20 December 2013, which resulted in the domestic warrant being issued. The references in box D to service with the "decision" on surrender and the right to appeal refer again back to the decision of preventive detention, the basis of the EAW. The phrase "the sentenced person was a perpetrator" in the EAW at box E is a mistranslation of the Polish EAW, which refers to a "suspect". The EAW was clearly for the purposes of having the appellant stand trial. In my view the District Judge cannot be said to be in error on this point.
Section 14: passage of time
- As in many Polish extradition cases the delays in this case appear inordinate and the efforts of the Polish authorities to track down their citizens remarkably slack. The alleged offending occurred 12-14 years ago. There was the police search in April 2003, and the appellant's witness statement when he was not aware that he was suspected of this offending. A decision to commence the case was apparently taken in December 2005, the decision to charge in May 2006, with a domestic arrest warrant issued on 29 December 2006. Nothing appeared to happen between 29 December 2006 and 30 August 2013, whereupon the Polish authorities say that they learnt that the appellant was living in the United Kingdom. There was yet further delay in issuing the domestic decision upon which the warrant is based (December 2013); in deciding to issue the EAW itself (April 2014); and in issuing the extradition request (in September 2014).
- Mr Hawkes submitted that all this constitutes culpable delay. The Polish authorities were aware of the appellant's identity when his apartment was searched, the invoices were discovered in 2003 and he gave a statement to the police as a witness. Yet there was a dearth of measures undertaken to locate him in this country. When that was finally done in 2013, there was yet further delay in issuing an EAW. Mr Hawkes submitted that the United Kingdom was the obvious place for the Polish authorities to look for the appellant when so many Poles had come to this country after Polish accession to the EU. The appellant was registered here and, I would add, committed offences here in 2006 (drink driving) and 2008 (battery). None of this, Mr Hawkes submitted, betrays any urgency on the part of the Polish authorities, which is a relevant factor both in terms of section 14 and Article 8.
- Mr Hawkes referred to the recent "pilot judgment" in the European Court of Human Rights of Rutkowski and others v. Poland (application nos. 72287/10, 13927/11 and 46187/11), which concerned complaints that the length of the proceedings before the Polish courts had been excessive and that the operation of the remedy at national level in such cases was defective. The court held unanimously that there had been a breach of Article 6 ECHR, the right to a hearing within a reasonable time, and a violation of the right to an effective remedy in Article 13. Mr Rutkowski's case was one of hundreds before the Strasbourg court. His complaint concerned criminal proceedings against him on suspicion of participating in an organised criminal group: he was charged in September 2002 and eventually acquitted in July 2010. Acknowledging that its nature meant the case must have been one of more than average complexity, the court nonetheless concluded that it did not proceed with necessary expedition and there was a breach of Article 6. The court applied the pilot judgment procedure, since the facts of cases such as Mr Rutkowski's suggested the existence of a systemic problem in the Polish justice system.
- While Mr Hawkes realistically conceded that there was a high bar to extradition on the basis of an Article 6 argument, he submitted that Rutkowski underlined his submissions on culpable delay under section 14 and Article 8 ECHR. Under section 14, the appellant was demonstrably prejudiced in defending himself against the allegations, since he was unable to recall, locate or identify the accountant who, on his case, was the person responsible for issuing the false invoices. In his proof of evidence he told the District Judge that he struggled to manage his paperwork and therefore delegated that task to his accountant. Moreover, he said that he did not recognise the names of the companies listed in the invoices. Mr Hawkes submitted that the records which may permit the appellant to identify the accountant he used had in all likelihood been destroyed by now, fourteen years later. While Mr Hawkes accepted that the Polish court system must be assumed capable of fairly dealing with such historic allegations, it could not address the inherent oppression in putting this appellant on trial, so long after the fact. He referred to authorities such as Wenting v. High Court of Valenciennes  EWHC 3528 (Admin).
- In Gomes & Goodyer v. Trinidad & Tobago  1 W.L.R. 1938, Lord Browne at paragraph  cited with approval Lord Diplock's words in Kakis v. Government of the Republic of Cyprus  1 W.L.R. 779, that the gravity of the offence was relevant to whether changes in the circumstances of the accused which had occurred during the relevant period were such as would render his return to stand trial oppressive, but that "the test of oppression will not easily be satisfied: hardship, a comparatively commonplace of an order for extradition, is not enough."
- In this case the offences in the EAW are serious, committed over a period of some two years, during which time the appellant is said to have dishonestly issued over 1,500 fraudulent VAT invoices and lived off the proceeds of his offending. The total value of the benefit as alleged is a not inconsiderable sum. Undoubtedly hardship will result from his extradition, but there is no evidence to suggest that any greater degree of difficulty, amounting to oppression, would be caused.
- The delays here are troubling. There was the delay between 2003 and 2006, although the explanation might be that VAT frauds have a certain complexity. The decision to charge was made in 2006 and the Polish authorities explain that proceedings were suspended at that stage because the appellant could not be found, despite searches being carried out in Poland. When it was established that the appellant was in the United Kingdom, steps were taken to issue the EAW, although as I indicated earlier speed does not seem to have been of the essence. Overall there is a resonance with the position before the Strasbourg court in Rutkowski. However, in Kakis v. Cyprus  1 W.L.R. 779 Lord Diplock said that the issue is less a finger-pointing exercise as to who is to blame, and rather one of considering the effect of the delay and the events which had taken place, which would not have, had the request been made promptly: at 783B. Even if some of the delay in this case is culpable, in my judgment the high threshold for oppression has not been reached.
Article 8 ECHR: private and family life
- The District Judge conducted the balancing exercise for Article 8 laid down in Polish Judicial Authorities v. Celinski  EWHC 1274 (Admin). Delay is certainly a factor which feeds into that balance: H (H) v. Deputy Prosecutor for the Italian Republic, Genoa  UKSC 25, , per Lady Hale. Nonetheless, the District Judge still concluded that the public interest in extradition outweighed the interference that it would cause the appellant's private and family life. In particular his children are now adults and his wife has independent financial means, having worked in this country since 2004. The seriousness of the allegations weighed heavily in the balancing exercise in this case. In passing I note Ms Farrant's submission, which I accept, that Article 8 is not a catch all provision and that it is not possible to take account of Strasbourg's decision in Rutowski as a balancing factor. In my judgment, the appellant has failed to show that the District Judge's decision was wrong regarding Article 8 ECHR.
Section 21A: proportionality and less coercive measures
- Under section 21A of the 2003 Act the court when seized of an accusation EAW must consider the compatibility of extradition with the requested person's human rights and decide whether it would be disproportionate. These are separate issues: the proportionality bar operates as an additional and separate bar to human rights considerations. In deciding whether extradition would be disproportionate under section 21A, the court must take into account specified matters only. These are the seriousness of the conduct alleged to constitute the extradition offence; the likely penalty that would be imposed if the person were found guilty of the extradition offence; and the possibility of the relevant foreign authorities taking measures that would be less coercive than extradition: section 21A(1)(b), (3). There is an evidential burden on a requested person to identify less coercive measures which would be appropriate in the circumstances: Miraszewski v. Poland  EWHC 4261 (Admin).
- Mr Hawkes's submission is that a combination of factors compel the conclusion that the appellant's extradition to Poland would be disproportionate: first, the allegations are 12-14 years old; secondly he was unaware that criminal proceedings had been initiated against him in respect of the allegations; thirdly, the Polish authorities have not yet sought to summons him to attend trial; fourthly, the allegations do not suggest the appellant poses any immediate risk to the public that would require his immediate detention; and finally, he has an established private and family life in the UK where he has lived for the past 12 years. Consequently, an order for extradition at this stage would be disproportionate under section 21A of the 2003 Act.
- In my view, however, extradition in this case is proportionate in the light of the seriousness of the conduct alleged and the likely penalty on conviction. There has been a substantial passage of time in this case, but that is largely because the Polish authorities could not locate the appellant. The court must accept what the Polish judicial authority says about that. As to Mr Hawkes's points about a summons to attend trial and the appellant's detention on return, I take much comfort from Prosecutor Nocun's statement, recorded in paragraph 4 of Ms Kwincinska's statement, that if returned to Poland the appellant would most likely not be held in custody.
- That leaves the issue of less coercive measures. First, Ms Kwincinska spoke to the prosecutor, Mr Chlad, about the possibility of temporary transfer. That would not work, he said, because the appellant would be arrested on the domestic warrant. However, he stated that he would consider withdrawing the EAW if the appellant paid a security of 50,000 zloty. The appellant could not afford this second possibility. A third possibility Mr Chlad raised was the "Iron Letter", a guarantee of safe passage for questioning. An application was made to the Circuit Court in Czestochowa for this but refused. Mr Hawkes is justifiably critical about aspects of the court's reasoning, for example, in stating that the appellant has hidden from the investigation and impeded it. That is inconsistent with what this court has been told in the further information from the Polish judicial authority.
- A fourth possibility is the European supervision order as less intrusive means of securing the appellant's attendance at trial. The European supervision order scheme was introduced by the Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention ("the Framework Decision on pre-trial supervision"). Its aim is to enable a person resident in one Member State, but subject to criminal proceedings in another, to be supervised by the authorities in the Member State in which he or she is resident whilst awaiting trial. The measure came into force in the UK on 3 December 2014 following the decision of the UK Government to opt back into 35 EU criminal justice measures: Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, Part 7, Schedule 6.
- However, an order under the Framework Decision is not able to delay extradition proceedings under an EAW. Article 21(1) provides:
"If the competent authority of the issuing State has issued an arrest warrant or any other enforceable judicial decision having the same effect, the person shall be surrendered in accordance with the Framework Decision on the European Arrest Warrant."
This point seems confirmed by the Scott Baker Review, which stated that pursuant to the Framework Decision on pre-trial supervision, a requested person whose extradition was sought would need to be surrendered to the category 1 territory before a supervisory order could be granted: see Sir Scott Baker, A Review of the United Kingdom's Extradition Arrangements, 30 September 2011. At paragraph 5.153, the review said:
"Under the terms of the Framework Decision on pre-trial supervision, it is still necessary for the requested person to be surrendered to the category 1 territory but, following surrender, the courts in the category 1 territory should proceed in appropriate cases to grant bail confident in the knowledge that the individual will return voluntarily for the trial proceeding, or if not, another European arrest warrant could be executed speedily so as to ensure their return."
In other words, an order under the Framework Decision on pre-trial supervision is not intended as something which can interfere with the process of an EAW.
- The appellant's legal representatives have been most diligent in raising these various less coercive measures with the Polish judicial authority. Where less coercive measures are reasonably applicable, and a requested person raises them with the judicial authority in the requesting state, it must consider them and give some explanation, however brief, for rejecting them, if the position plainly calls for that: cf. Spanish Judicial Authority v. Arranz  EWHC 2305 (Admin) , . Generally speaking it will not be for this court to question those reasons: that would be inconsistent with the mutual respect which judicial authorities place in each other. In this case the Polish judicial authority has given reasons for rejecting each of the less coercive measures the appellant has advanced. That, in my view, is the answer to this aspect of the proportionality issue under section 21A.
- For the reasons I have given, the appeal is dismissed.
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