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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 3210 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| WOJCIECH KAZANIECKI
- and -
|REGIONAL COURT IN TORUN, POLAND
NATIONAL CRIME AGENCY
Hannah Hinton (instructed by the Crown Prosecution Service) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 29 November 2016
Crown Copyright ©
Mrs Justice Lang:
The alleged offences and the EAW
Grounds of appeal
i) The Appellant invited the judicial authority in writing to employ less coercive measures than extradition, pursuant to section 21B EA 2003, but received no response. The DJ failed to take this into account in considering whether extradition was proportionate.
ii) The DJ failed adequately to consider the relevant factors under section 21A EA 2003 and erred in concluding that extradition was proportionate.
iii) The DJ misdirected himself in law on the test to apply under Article 8. In his assessment of proportionality, he misunderstood the evidence, took into account irrelevant matters, failed to consider relevant matters, and reached a conclusion which was wrong.
iv) The DJ misdirected himself in law on the test to apply under section 14 EA 2003, took an erroneous approach to the evidence, took into account irrelevant matters and failed to consider relevant matters.
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
(i) committed the extradition offence (where he is accused of its commission)…."
"21A Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
"21B Request for temporary transfer etc
(1) This section applies if—
(a) a Part 1 warrant is issued which contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory), and
(b) at any time before or in the extradition hearing, the appropriate judge is informed that a request under subsection (2) or (3) has been made.
(2) A request under this subsection is a request by a judicial authority of the category 1 territory in which the warrant is issued ("the requesting territory")—
(a) that the person in respect of whom the warrant is issued be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(3) A request under this subsection is a request by the person in respect of whom the warrant is issued—
(a) to be temporarily transferred to the requesting territory, or
(b) that arrangements be made to enable the person to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant.
(4) The judge must order further proceedings in respect of the extradition to be adjourned if the judge thinks it necessary to do so to enable the person (in the case of a request under subsection (2)) or the authority by which the warrant is issued (in the case of a request under subsection (3)) to consider whether to consent to the request.
An adjournment under this subsection must not be for more than 7 days.
(5) If the person or authority consents to the request, the judge must—
(a) make whatever orders and directions seem appropriate for giving effect to the request;
(b) order further proceedings in respect of the extradition to be adjourned for however long seems necessary to enable the orders and directions to be carried out.
(6) If the request, or consent to the request, is withdrawn before effect (or full effect) has been given to it—
(a) no steps (or further steps) may be taken to give effect to the request;
(b) the judge may make whatever further orders and directions seem appropriate (including an order superseding one made under subsection (5)(b)).
(7) A person may not make a request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already given consent to a request under the corresponding paragraph of subsection (2) in respect of that warrant (even if that consent has been withdrawn).
(8) A person may not make a further request under paragraph (a) or (b) of subsection (3) in respect of a warrant if the person has already made a request under that paragraph in respect of that warrant (even if that request has been withdrawn).
(a) a request under subsection (2) or (3) is made before a date has been fixed on which the extradition hearing is to begin, and
(b) the proceedings are adjourned under this section,
the permitted period for the purposes of fixing that date (see section 8(4)) is extended by the number of days for which the proceedings are so adjourned."
"27 Court's powers on appeal under section 26
(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
The request under section 21B EA 2003
"No less coercive measures to extradition have been suggested and I do not consider any to be a possibility."
"8. The following issues are raised on behalf of Mr Kazaniekci:
(i) A request by Mr Kazaniekci to the Judicial Authority that arrangements be made to enable him to speak with representatives of an authority in the requesting territory responsible for investigating, prosecuting or trying the offence specified in the warrant either at the Polish embassy in London or by way of video link or any other means other than Mr Kazaniecki being transferred to Poland under s.21B. "
"10. Mr Kazaniecki is making a request under s.21B to be interviewed regarding the allegation contained in the EAW by way of a video link or at the Polish Embassy/Consulate in London or any other way other than being transferred to Poland."
"18. Mr Kazaniecki has expressed his willingness to be interviewed by the Polish Authorities in relation to the accusation matter and is willing to assist in resolving this matter. Since the alleged offence took place a long time ago in 2002 and Mr Kazaniecki has become settled in the UK, has a mortgage on his own home and his whole family are in the UK. It would therefore be reasonable for the Polish Authorities to interview him via video link or at the Polish Consulate in London in relation to this allegation, particularly given the delays in this case on the part of the Polish authorities."
"4. The skeleton argument of 18 May 2016 was served by email; this made plain that the skeleton contained the s. 21B request. However, since that time, no response was ever received from the Polish judicial authority.
5. When my colleague, Ms. Maziarz attended Westminster for the case management hearing on 7th June 2016, she was fully aware of the identified issues in the case, including the s.21B request. We did not discuss or consider abandoning it; there is no reason why we would have done so, since it was and remains absolutely in our client's best interests not to be extradited. My view was that he had every prospect of defeating this request, either substantively on the points raised, or via less coercive measures.
6. I received the RFFI, dated, 23 May 2016, at the final hearing. Having considered that information, I formed the view that the Polish judicial authorities, in failing to respond to the s. 21B application had rejected it. For example, the further information contained responses to the various questions asked of the Polish Judicial Authorities on the basis of the evidence that we had served, including my skeleton argument which set out our position out clearly. In my view, there ought to have been a response to the s. 21B request.
7. Even if the request for further information had been sent before our s. 21B request had been set out in writing, the prosecution were certainly aware that this was a live issue because it was raised from the outset of the case.
8. On the day of the extradition hearing, from recollection, my submissions were consistent which my skeleton argument. My notes of the hearing (in particular examining witnesses and making submissions) and my submissions at the hearing are limited due to the fact that it is difficult to make notes when you are on your feet, I served a bundle which contained my skeleton argument (this bundle was contained in the original appeal application) and was paginated. I served one copy on the prosecution and one was passed to the judge. The judge kept the bundle which contained all the evidence upon which we are relying.
9. I am very surprised that it is suggested that the s. 21B application was withdrawn. Ms Maziarz and I work very closely together on all of our cases and there was never a discussion between us to abandon this application, which we found to be a proper and strong application to make. I maintain the view that the failure of the Polish authorities to consider the point reflected either their tacit rejection of it, or the fact that no request was ever made to them by the CPS to consider it."
"18. In written submissions, both within his skeleton argument and in a covering letter, dated 18 May 2016, the Appellant invited the Respondent judicial authority to employ less coercive measures than extradition, pursuant to s. 21B. He invited the authorities to interview him, either in person in the UK or via a video-link. However, although the Polish authorities provided further information on 23 May 2016, it contained no response to this request."
A submission in the same terms was included in Mr Hawkes' skeleton argument on appeal.
i) The Appellant and his family were settled in the UK, and extradition would be onerous for an infirm man of his age;
ii) The relatively minor offence alleged and the Appellant's explanation for it;
iii) The fact that the Appellant had never been questioned by the Polish police, he was not a fugitive from justice;
iv) He had no previous convictions;
v) The length of time which had elapsed since the offences, during which time one of the individuals named in the warrant (a potential defence witness) had died.
Assessment of the evidence and findings of fact
i) The DJ found that the Appellant and his wife had separated on two occasions, whereas, his evidence was that it was only on one occasion, following his breakdown and departure from Poland for the UK.
ii) The DJ found that the Appellant has a son, whereas he only has a daughter.
iii) The DJ found that the Appellant's wife had fibromyalgia when in fact it was his daughter who suffered from fibromyalgia.
I do not consider that the first two errors had any bearing on the DJ's decision. The third error was more significant, as it was relevant to the daughter's ability to support the family and care for her mother, if the Appellant was extradited.
Section 21A EA 2003
"The important public interests in upholding extradition arrangements, and in preventing the UK being a safe haven for a fugitive as Celinksi was found to be, would require very strong counter-balancing factors before extradition could be disproportionate."
This was a mis-direction, as Celinski was a fugitive, whereas the Appellant was not.
"the public interest in ensuring that extradition arrangements are honoured is very high. So too is the public interest in discouraging persons seeing the UK as a state willing to accept fugitives from justice. We would expect a judge to address these factors expressly in the reasoned judgment."
"The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life."
"34. Mr Fitzgerald relied also on other learning, which it is convenient to consider before confronting the argument, not least given the considerable emphasis placed by Mr Fitzgerald on what he says has been inexcusable delay on the part of the Italian authorities. In Kakis itself Lord Edmund-Davies stated (785):
"[T]he fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor …"
Lord Edmund-Davies stated in terms that he was "unable to concur" in part of Lord Diplock's reasoning, where he had said (783) "the question of where responsibility lies for the delay is not generally relevant". Of their other Lordships Lord Russell of Killowen and Lord Scarman agreed in terms with Lord Diplock's speech.
35. In Osman (No 4)  1 AER 579 Woolf LJ as he then was considered Lord Diplock's reasoning in Kakis and concluded that he had not intended to exclude culpability on the part of the requesting State as a material matter:
"Lord Diplock was not suggesting that, in a case which was close to the borderline as to whether or not the applicant was entitled to be discharged, the fact that the requesting state had been guilty of culpable delay was not a matter which the court was entitled to take into consideration." (587g)
36. I understood Mr Fitzgerald to submit that unexplained delay (at least, presumably, if it is substantial) might of itself make a case of prejudice, entitling the prospective extraditee to be discharged. He cited Kociukow  EWHC Admin 56, a decision of this court. Jack J (with whom Hallett LJ agreed) said:
"10. It is the appellant's case that it would be unjust to return him to Poland to stand his trial because over six years have gone by since the alleged offence which gives rise to serious prejudice to him in his defence. It is his case that he came to the United Kingdom in late August 1999 or soon thereafter, entered lawfully and has been residing here lawfully since then. He asserts that he has otherwise no knowledge of the robbery, of the stalls in question, or of the women referred to. He has no knowledge now of what he was doing on 18 August 1999. There is no information as to the nature of the evidence against him. I conclude that there is a very real risk that the appellant will be prejudiced in his defence by the passage of the time that has passed. As is obvious, he is very likely to have difficulties in dealing with evidence which he first hears about over six years after the events. Also, if, for example, the case turns on identification evidence, there is very likely to be a much greater risk after this period of time of a wrong conviction. If the appellant is not to blame for this situation, I would be satisfied that it would be 'unjust' that the appellant be extradited because of the serious risk of substantial prejudice to him in the conduct of his defence."
Jack J observed that counsel for the respondent had no instructions as to why the warrant had not been issued until the previous year, and continued:
"11. … [I]t cannot be for the appellant to show that there are no good reasons for the delay. It is his case that his leaving Poland was unconnected with the offences. In the absence of any explanation from the extraditing authority he is entitled to assert that there is a prima facie case calling for an answer, which is unanswered …"
37. As the district judge was to observe in the present case (paragraph 10) Kociukow turned on its own facts. In particular, at the time the court was considering the matter there was simply no information as to the nature of the prosecution evidence, quite apart from the causes of the delay. In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether "it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence". That is, of course, the starting-point. There are then Lord Diplock's observations in Kakis (at 782), which describe the overlapping scope of "unjust" and "oppressive". Next, the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extraditee to be discharged: Jack J, I am sure, did not intend to suggest as much. All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No 4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges."
Section 14 EA 2003
""Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."
"31. The other main question discussed at some length during the argument is what approach should be adopted to the concepts of injustice and oppression within the meaning of s.82. This is, of course, touched on in the first sentence of Diplock para 1. And, so far as concerns oppression, it is worth noting too Lord Diplock's statement (at p284) that: "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". That said, the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough."
"The case confirms that a RP is ordinarily denied any passage of time argument unless there are 'the most exceptional circumstances'."
"32. With regard to the concept of injustice, the law has moved on since Kakis, in part because of the developing abuse of process jurisdiction over the past 30 years. It is unnecessary to rehearse this at length. Rather it is sufficient to refer to the judgment of the Privy Council delivered by Lord Bingham of Cornhill in Knowles v US Government  1 WLR 47, in particular para 31 where the Board approved the Divisional Court's judgment in Woodcock v Government of New Zealand  1 WLR 1979 from which it extracted and endorsed the following propositions:
"First, the question is not whether it would be unjust or oppressive to try the accused but whether … it would be unjust or oppressive to extradite him (para 20). Secondly, if the court of the requesting state is bound to conclude that a fair trial is impossible, it would be unjust or oppressive for the requested state to return him (para 21). But, thirdly, the court of the requested state must have regard to the safeguards which exist under the domestic law of the requesting state to protect the defendant against a trial rendered unjust or oppressive by the passage of time (paras 21-22). Fourthly, no rule of thumb can be applied to determine whether the passage of time has rendered a fair trial no longer possible: much will turn on the particular case (paras 14-16, 23-25). Fifthly, 'there can be no cut-off point beyond which extradition must inevitably be regarded as unjust or oppressive' (para 29)."
33. The second of those propositions, it will be noted, invites consideration of whether, in any particular case, "a fair trial is impossible", and that indeed we regard as the essential question underlying any application for a s.82 bar on the ground that the passage of time has made it unjust to extradite the accused. As was pointed out in Woodcock (para 17), a stay on the ground of delay in our domestic courts is only properly granted when "there really is evidence of prejudice to the extent that a fair trial could not be held". We acknowledge that in Kakis, Diplock para 1 speaks of "the risk of prejudice to the accused in the conduct of the trial itself". But Viscount Dilhorne's leading speech in Narang the previous year had used the language of impossibility:
"I see nothing in the material before this House to lead to the conclusion that as a result of the passage of time it would be impossible for [the two accused] to obtain justice, and, that being so, I am unable to conclude that by reason of the passage of time their return would be unjust or oppressive." (p.276)"
Note 1 The DJ’s judgment wrongly identified the Respondent as the Regional Court in Poznan, Poland. I consider that this was probably a typographical error. [Back] Note 2 Section 21B was considered in Miraszewski v District Court in Torun, Poland  EWHC 4261 (Admin), at  – , and in Puceviciene v Lithuanian Judicial Authority  EWHC 1862 (Admin), at  – . [Back]
Note 1 The DJ’s judgment wrongly identified the Respondent as the Regional Court in Poznan, Poland. I consider that this was probably a typographical error. [Back]
Note 2 Section 21B was considered in Miraszewski v District Court in Torun, Poland  EWHC 4261 (Admin), at  – , and in Puceviciene v Lithuanian Judicial Authority  EWHC 1862 (Admin), at  – . [Back]