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||Neutral Citation Number:  EWHC 36 (Admin)
||Case No: CO/9035/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
||- and -
||DISTRICT COURT, WARSZAWA, POLAND
(Transcript of the Handed Down Judgment of
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Manjit S. Gill QC and Unnati Bhatt (instructed by Guney Clark Ryan Solicitors) for the Appellant
Ben Isaacs (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 6th December 2012
HTML VERSION OF JUDGMENT
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MR JUSTICE FOSKETT:
- The Appellant's extradition is sought by the District Court in Warszawa, Poland, on a European Arrest Warrant ('EAW') issued on 3 December 2009 and certified by the Serious Organised Crime Agency ('SOCA') on 7 April 2010.
- He is a 37-year old Polish national who has a partner in the UK (also a Polish national) and a child from that relationship. He has two children by another relationship in Poland.
- The warrant is a "conviction warrant" and the Appellant's return is requested in order for him to serve 1 year, 11 months and 2 days outstanding on a 2-year sentence for two offences arising out of the same incident on 30 September 2000 when he assaulted a police officer by hitting him in the stomach and used threatening behaviour against the same officer.
- The EAW shows that the sentence was imposed by the Regional Court for Warszawa Praga 3rd Criminal Department on 9 September 2004 and suspended for a 5-year probationary period. The file number for the decision was specified in the EAW.
- The Appellant left Poland to come to the UK in April 2006.
- The EAW indicates that on 8 February 2007 the Regional Court for Warszawa Praga-Pσlnoc in Warsaw ordered the "execution of the penalty of 2 (two) years imprisonment" pursuant to the ruling referred to in paragraph 4 above. No further details of the circumstances giving rise to the decision to "execute" the sentence were given.
- The Appellant was arrested on 27 May 2012 and on 22 August 2012 District Judge Coleman, at Westminster Magistrates Court, ordered the Appellant's extradition. He appeals against that order.
- The principal point taken is that when he was convicted on 9 September 2004 he was convicted by a court of which one member was an "assessor". The Polish Constitutional Court on 24 October 2007 held that a court in which an assessor was involved violated the constitutional principle of the need for an independent judiciary. The background to that ruling is referred to in detail in Henryk Urban and Ryszard Urban v. Poland - 23614/08  ECHR 1903, [19-24], and is summarised by Collins J in Wisniewski v Regional Court in Elbag, Poland  EWHC 3040 (Admin) at [3-13], a case in which Miss Unnati Bhatt raised a similar argument to that raised in this case, albeit without reference, it seems, to all the authorities to which my attention has been drawn. The focus of the argument she presented was based upon Article 6 considerations whereas the focus, at least initially in the present case, is upon section 2 of the 2003 Act (see paragraph 7 below). I will return to those two particular cases below (see paragraphs 32-40).
- Mr Manjit Gill QC and Miss Bhatt argue that the effect of this is that the EAW is not valid since the Appellant has not been convicted by a "court" as required by section 2 of the Extradition Act 2003. In the alternative, it is contended that extradition pursuant to the EAW would result in a breach of the UK's obligations under Article 6 of the ECHR and, to the extent that it is necessary to rely upon it, a breach also of Articles 5 and 13. Finally, if both those arguments fail, it is said that the EAW did not comply with the requirements of section 2 in that it failed to provide any information as to the circumstances leading to the activation of the suspended sentence.
- The certified translation of the conviction and sentence hearing by the District Court in Warszawa indicates that the "Chairperson" of the court was an "assessor" who sat with one other "bench judge" (or possibly two other "bench judges").
- The Appellant was present and legally represented at that hearing. He took no point about the role of the assessor at the time or at any time subsequently in Poland.
- The District Judge was invited not to order the Appellant's extradition on the basis of his and his family's Article 8 rights, but held that the public interest in extradition outweighed those rights. There is no appeal against that decision. The District Judge also rejected each of the grounds advanced before me. He had declined to receive in evidence a report from a Polish lawyer dealing with the issue of "assessors" in Polish courts proffered to him on the day he was due to give his judgment. He did, however, read it and took the view that it would not have taken the case any further. The report (which was before Collins J in Wisniewski) was from Mikolaj Pietrzak and dated 25 October 2012: it indicated that there is no remedy available to the Appellant in Poland to re-open the proceedings which led to his conviction. It was put before me without objection on the part of Mr Ben Isaacs for the Respondent and indeed there is no dispute that there is no remedy in Poland for the matter in respect of which the Appellant now seeks to complain.
- I imagine that the view of the District Judge was much along the lines of the view of Collins J in Wisniewski when he said this at :
"There is before me an expert report from a Polish advocate that simply confirms that as a result of the ruling of the Constitutional Court, coupled with the upholding of that ruling by the European Court of Human Rights, there will be no question of the appellant being able to re-open the decisions upon which the arrest warrant is based were he to be returned to Poland. But, in my view, that does not assist him because there can be no conceivable suggestion that, apart from the security of tenure issue, there was any prejudice to the appellant from the fact that it was assessors rather than judges with security of tenure who decided the case against him."
The principal point developed
- Section 2 of the Extradition Act 2003 provides that in the case of a conviction warrant the EAW must contain a statement which complies with section 2(5). This (as amended) provides as follows:
"The statement is one that
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."
- Mr Gill and Miss Bhatt emphasise the words "by a court" and submit that, whatever the EAW may state, the reality is that the Appellant was not convicted by a truly independent and impartial court when judged by English standards of law and due process and, accordingly, the warrant should be treated as invalid. There is, it is contended, no basis for a lawful request to be made to another state under the EAW system under a conviction warrant against such a background.
- They rely upon the proposition that the 2003 Act is designed to give effect to the EU Council Framework Decision (the 'EFD') of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA) and draw attention to paragraph 12 of the preamble which reads as follows:
"This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union
, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.
This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."
- They contend that this means that states may rely on their own legal traditions concerning due process and that, accordingly, the common law should refuse to recognise as valid a decision made by someone who was not an independent judge. Such a decision, it is argued, represents the product of a fundamental collapse of procedure and is a flagrant denial of justice although, it is contended, the domestic law does not require for this purpose, as they put it, "the language of flagrancy". As I understood the argument, this was a secondary (and alternative) approach if the principal argument failed.
- They acknowledge, by referring to Office of the King's Prosecutor, Brussels v Cando Armas and another  2 AC 1, that the strict approach to the construction of domestic legislation is not necessarily applicable to the construction of extradition treaties. They draw attention, however, to the following passage in the speech of Lord Hope of Craighead at :
"In R v Governor of Ashford Remand Centre, Ex p Postlethwaite  AC 924, 947 Lord Bridge of Harwich said that the court should not apply the strict canons appropriate to the construction of domestic legislation to extradition treaties. In In re Ismail  1 AC 320, 327 Lord Steyn, noting that there was a transnational interest in bringing those accused of serious crime to justice, said:
"Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition."
These passages describe the approach to the issues of statutory construction that have been raised in this appeal. But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."
- They emphasise the passage underlined and submit that on this approach the EAW in the present case clearly breaches the requirements of section 2.
- I interpose in this narrative of their submissions the observation from the speeches of Lord Bingham and Lord Hope that the phraseology of the Act did not reflect fully the phraseology of the Framework Decision with the result that interpretation of the Act is somewhat difficult. Lord Bingham said this at :
"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."
- Mr Gill and Miss Bhatt refer also to  -  of Lord Hope's speech:
"25. Belgium is one of the territories, referred to in section 1(2) of the 2003 Act as category 1 territories, which have been designated for the purposes of Part 1 of the Act by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333). Part 2 provides for a separate system of extradition to category 2 countries. Those which have been designated as category 1 countries must make use of the procedure laid down in Part 1. The extradition procedure in that Part of the Act is initiated by what section 2(2) describes as a Part 1 warrant. This is an arrest warrant which is issued by a judicial authority of a category 1 territory. Its contents are prescribed by the statute.
26. One might have expected the draftsman, when he was prescribing its contents, simply to have followed what the Framework Decision says about this. The content and form of the European arrest warrant is laid down in article 8, in accordance with a form contained in an Annex to the instrument. But the 2003 Act has not adopted that approach. Section 2(2) provides that a Part 1 warrant must contain a statement which is not expressly provided for in the article, and it provides that it must contain information which lacks some of the details which the article requires. These details vary according to whether the person in respect of whom the warrant is issued is unconvicted ("accusation cases") and is being sought for the purpose of being prosecuted for the offence which it specifies, or has been convicted and is being sought for the purpose of being sentenced for that offence or for the serving of a custodial sentence that has been imposed in respect of it ("conviction cases"). Here too section 2(2) departs from the article, which makes no distinction as to the contents of the warrant between accusation and conviction cases. The same form is prescribed for them both.
27. The contents of the warrant are crucial to the operation of the system which has been laid down in Part 1. Section 10(2) states that the judge must decide whether the offence specified in the warrant is an extradition offence. That expression is defined in sections 64 and 65 of the Act. Section 64 applies to accusation cases. Section 65 applies to conviction cases. These definitions are almost identical, except that where the test of double criminality must be satisfied in accusation cases the conduct must be punishable by a custodial sentence of 12 months or more (see section 64(3)(c)), whereas in conviction cases the minimum sentence is 4 months (see section 65(3)(c)). Nothing turns on that distinction in the present case. What does matter is that the Part 1 warrant is the initiating document in all cases, irrespective of whether the offence is within the Framework list and irrespective of whether the double criminality requirement which is dispensed with in the cases referred to in sections 64(2) and 65(2) applies to it."
- The submission they make is that the emphasis to be found in these paragraphs is upon the importance of the warrant complying with the requirements of section 2. They make the same point by reference to Dabas v High Court of Justice, Madrid  2 AC 31, a case in which the High Court of Justice of Madrid sought the surrender of the appellant to face a criminal charge of complicity in Islamic terrorism in connection with the Madrid train bombings in March 2004. The argument advanced on the appellant's behalf in that case was that the particular EAW did not comply with section 64(2) and (3) of the 2003 Act. One issue was whether the certificate referred to in section 64(2)(b) and (c) of the Extradition Act 2003 can be the EAW itself rather than some separate document.
- Mr Gill and Miss Bhatt refer to  of Lord Hope's speech which is in these terms:
"I wish to stress, however, that [a judge conducting an extradition hearing] must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
- They submit that the court must interpret section 2 in accordance with the domestic law and should try to do so, so far as possible, in a way which is not inconsistent with the Framework Decision and that, by applying that approach, the court has to proceed on the basis that the independence of a court is an essential requirement of the existence of a court at common law. They contend that the concept of a "flagrant denial of justice" (see paragraphs 33-37 below) cannot rescue the position if this argument is sound.
The response of the judicial authority
- The short point made by Mr Isaacs in response to these submissions is that section 2 has been complied with because, as is required by section 2(2), a "judicial authority" in Poland has issued an arrest warrant containing the statement referred to in subsection (5). He submits that, once this has been done, it is not open to the Requested State, through its domestic courts, to examine or question the correctness or validity of that statement. If a "judicial authority" of the Requesting State says that the person was convicted "by a court" which is recognised as a court in that state, that is sufficient for the EAW to meet the requirements of section 2.
- He contends that the arguments advanced on the Appellant's behalf are misconceived and disregard the essential legal principles underpinning the EAW scheme and fail to take account of the objectives of the Council Framework Decision and the language of section 2. The purpose of the Framework Decision, he submits by reference to paragraph 5 of its preamble, was to implement a "system of surrender between judicial authorities", supported by "a system of free movement of judicial decisions in criminal matters" and, crucially, a system where the underlying assumption is that "member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions": per Lord Bingham at  in Dabas. It follows, he submits, that an executing state must not question the statements made within a warrant, nor must it look to the judicial authority for evidence in support, or any additional verification, of the particulars provided.
- The issue (or at least one of the issues) in Dabas was as I indicated in paragraph 22 above. Lord Bingham's conclusion was expressed in these terms at :
"The short question is whether this arrest warrant, complying with the formal requirements of the Framework Decision, is invalid under the 2003 Act because there is no separate certificate, and no express certification, to the effect specified in section 64(2)(b) and (c). If it is, the effect of the Act would be to introduce a requirement not found in the Framework Decision and thereby to impede, to some extent, achievement of the purpose of the Framework Decision, by reintroducing an element of technicality which the Framework Decision is intended to banish and by frustrating the intention that a warrant in common form should be uniformly acceptable in all member states. Happily, as I think, the House is not driven to that conclusion, since I consider that the Spanish judge, by signing the warrant, has given his authority to and thereby vouched the accuracy of its contents. Thus the warrant is in substance if not in form a certification by the judge. It would be inconsistent with the trust and respect assumed to exist between judicial authorities to insist on any additional verification, which would impede the process of surrender but do nothing to protect the rights of the appellant."
- Lord Hope said this on this issue at :
"What, then, if the Part 1 warrant itself purports to have been issued by a judge, magistrate or officer who, by signing it, can be taken to have accepted responsibility for its accuracy? Why should it not be held to constitute a "certificate" for the purposes of section 64(2)(b) and (c)? Section 2 does not say that an arrest warrant must be signed by a judge, magistrate or officer. It refers to an arrest warrant which has been "issued" by a judicial authority of the category 1 territory. The annex to the Framework Decision, on the other hand, requires the document to be signed. The signature may be that of the issuing judicial authority "and/or its representative." The requirement for a "certificate" which "shows" that the conduct is of the kind described in section 64(2)(b) and (c) adds something to the requirements that a Part 1 warrant must satisfy. But it does not follow that there must be a separate document."
- He went on to conclude at  that an EAW can itself be the "certificate" referred to in section 64(2)(b) and (c) and that the EAW issued in that case contained "all the information that was needed for it to be a Part 1 warrant." He said that "[its] authentication by the issuing judicial officer was sufficient for it to satisfy the formality expected of a certificate that vouches the information contained in it."
- In this general context one might add the case of Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy  1 WLR 1724, per Lord Bingham at .
- By analogy of reasoning Mr Isaacs submits that it is the judicial authority in Poland which is best placed to assess whether the body which convicted the Appellant was, by Polish standards, a "court" (which, he emphasizes, is a word used in the larger expression in section 2(5) of "a court in the category 1 territory"). The English court must, he says, rely on the judicial authority's effective certification that it was. The judge (District Court Judge Beata Ziolkowska) who signed the EAW has vouched for its contents and to entertain the objections would be contrary to the language of section 2 and the principle of mutual recognition. Mr Isaacs recognizes that pursuant to section 21 of the 2003 Act, the English courts must also be satisfied that extradition is compatible with a requested person's Convention rights, but submits that those considerations cannot form part of the analysis required under section 2.
- He submits also that the fact that a particular defendant's case has not been heard by an independent tribunal does not mean that he has not been convicted by a "court" within the meaning of the 2003 Act. He highlights the fact that in Urban v Poland (see paragraph 8 above) the ECtHR continued to refer to the local body that convicted the appellant in that case (the Lesko District Court) as a court. Whilst the ECtHR found that the case had not been heard by an independent tribunal, this did not, he submits, cause it to use language suggesting that the convicting body could not be regarded as a court at all. As a consequence, he submits that if, contrary to his primary submission, the English court should consider it appropriate to examine the validity of the statement within the EAW, the lack of neutrality of the tribunal that dealt with the Appellant's case does not result in the convicting body being regarded as something other than a court in Poland.
Conclusion on principal argument
- Leaving aside for present purposes any prior authority, but bearing in mind the contents of the European Framework Decision, the initial impression to be gained of the principal argument advanced on the Appellant's behalf is that its acceptance would require an unwarranted and unnecessary examination by the English court of the internal workings of the judicial system of another member state. Its acceptance would reflect an element of distrust between member states which is inimical to an effective mutual extradition process. The Framework Decision recognises the right of a requested state to refuse a request for extradition if, on the basis of objective evidence, the EAW has been issued for any of the prohibited purposes identified in the second sentence of the first paragraph of paragraph 12 of the decision: see paragraph 16 above. However, those prohibited purposes do not embrace questioning the intrinsic integrity of the judicial structure in the requesting state. Against that background, it is easy to see why a request for extradition might be denied only in the wholly exceptional case where some obviously flagrant denial of justice was or might be involved: cf. the approach in the case which can conveniently be called the Abu Quatada case:  UKHL 10 and  55 EHRR 1. See also Soering v UK  11 EHRR 439.
- However, as it seems to me, the authorities upon which Mr Isaacs relies do support the essential reasoning he advances and that those upon which Mr Gill and Miss Bhatt rely do not go so far as they contend. The essence of the duty of the English court in this situation is to determine whether the requirements of section 2 have been met. Here, as Mr Isaacs submits, there is a statement within the terms of section 2(2) made or validated by a Polish judge. I agree with Mr Isaacs that it should not be necessary to look beyond such a statement. He put it as strongly as saying that the English court has no "jurisdiction" to question such a statement. I do not think the authorities go so far as to prevent the English court from looking beyond such a statement and since it is usually wise to adopt the "never say never" catchphrase, I will content myself with repeating it, but adding that I find it very difficult to envisage circumstances in which it would ever be appropriate to question such a statement from such a source. At all events, there is, in my judgment, nothing in this case that would justify questioning the validity of the statement: the case of Urban supports it.
- That would, in my judgment, be sufficient to dispose of the principal argument advanced on the Appellant's behalf. However, if the approach I have adopted is wrong and it becomes necessary to invoke the concept of a "flagrant denial of justice", I would have respectfully agreed with the analysis of Collins J in Wisniewski when he said this at :
"It seems to me that it is quite impossible to say that in a case such as this - and I suspect in virtually any case involving a decision made by assessors - it can be shown that there was a flagrant breach of Article 6 or a breach which means that the Constitutional Court's decision that finality required the upholding of the relevant decisions and no right to challenge them was incorrect. Of course, if that is right it would mean that in respect of many cases where convictions or sentences resulted prior to 2009 - assessors being likely to have been involved - there would be a bar to extradition. That is not, in my judgment, the position."
- Mr Gill and Miss Bhatt contend that this assessment was wrong. They assert that the first requirement (which they characterise as the "core minimum requirement") of Article 6 is that the court or tribunal before which an individual is tried is in fact an independent and impartial court and that any failure to conduct the trial before a body which meets this core minimum requirement must reflect, as they put it, "a flagrant denial of substantial justice". They contend that the ECtHR in Urban has found a clear breach of Article 6 and that, accordingly, there can be no basis for holding that there has not been a "flagrant breach" of Article 6. They suggest that Urban was concerned solely with ex post facto remedies whereas in an expulsion context the court is concerned to prevent a future breach. As I understand the argument, it is that the Appellant has not yet served the sentence said to have been passed unlawfully upon him in Poland and thus the unlawful consequences of the breach can still be prevented by refusing extradition. Preventing extradition in these circumstances, it is argued, would not undermine the interests of legal certainty.
- I have some difficulty with this analysis in the light of the conclusions of the ECtHR in Urban. It may be right to say that Urban was concerned with an ex post facto remedy, but I do not consider that the present case is distinguishable from Urban merely because the penalty in the form of a sentence of imprisonment has not yet been exacted. If there has been any breach of Article 6 (whether "flagrant" or of some less serious quality) in this case, it has already occurred (as it had in Urban). I cannot, for my part, see any material distinction between the position of the Appellant in this case and the appellants in that case in this regard. No case has been drawn to my attention in which extradition to Poland from any member state (whether from the UK or another member state other than Poland) has been refused because the person whose extradition is sought has not yet served a sentence of imprisonment imposed by a Polish tribunal of which a member was an "assessor". Given that nearly 25% of the judicial personnel in district courts during the period before the decision of the Polish Constitutional Court were assessors (see  in Urban), it is difficult to believe that the Appellant's position is unique. The decision of the Constitutional Court was in October 2007 (see paragraph 8 above) and the decision in Urban was in October 2010. This raises the question of how much credence should be given to the argument raised in the present case,
- It has also to be observed that the Appellant did not challenge the sentence imposed upon him at the time it was imposed, whether by reference to the constitution of the tribunal that imposed it or by way of appeal on the merits. Whilst that may not constitute a basis for preventing him from raising the issue he seeks to raise in this case (cf. Millar v Dickson  1 WLR 1615), I do not see in principle why it cannot be taken into account in assessing the seriousness of the denial of justice said to have arisen from the manner in which his case was dealt with by the district court. I have noted also in the papers before me an application made by a Polish lawyer on the Appellant's behalf in June 2012 (and thus after his arrest in the UK) to the District Court in Warszawa seeking a deferral for one year of the execution of the sentence of 2 years imprisonment. That application could well be seen as acknowledging the efficacy of the sentence originally passed in Poland. However, it also evidences the proposition that there may be grounds for seeking in Poland to mitigate the apparent harshness of enforcing a sentence of imprisonment for offences committed a long time ago. Whether that is the case or not is a matter for the Polish courts, not for this court.
- Mr Isaacs was, in my view, correct to say that, having regard to the conclusion of the ECtHR in Urban, there was in reality no injustice to the appellants in that case, there is clearly none of which the Appellant in this case can properly complain. As is reflected in what Collins J said, the ECtHR recognised the entitlement of the Polish Constitutional Court to regard the principle of legal certainty as of importance. It would be possible to cite a number of paragraphs in the decision, but I will refer only to  and :
. In the present case, the Court notes that the judgment of the Constitutional Court identified a structural dysfunction and called for a legislative response. Such response was given by the Parliament which removed the structural dysfunction as of 2009
. The Court is of the opinion that in this particular context the finding of a violation need not necessarily entail the respondent State's obligation to reopen all proceedings in which assessors participated at the first-instance level. In this regard, the Court notes that the Constitutional Court devoted a substantial part of its judgment to the constitutional importance of the principle of the finality of rulings. In particular, it observed that it would be disproportionate and contrary to legal certainty to allow challenges to final rulings given by assessors in the period when the manner of conferring judicial powers on them had not been constitutionally questioned. Further, it emphasised that the finding of unconstitutionality concerned institutional provisions, that is, provisions regulating the composition of the bodies which gave final rulings. The Constitutional Court considered that the finding of unconstitutionality in respect of such provisions was not determinative of unconstitutionality in respect of the content of a final ruling given by an assessor or the procedure employed to reach it
. Consequently, the Constitutional Court held in the operative part of the judgment that its ruling could not serve as a basis for the reopening of cases decided in the past by assessors (or with their participation). This ruling was even extended to two claimants who successfully challenged the provisions regulating the status of assessors before the Constitutional Court, thus depriving them of the so-called "right of privilege"
The Court would further observe that in the view of the Constitutional Court the constitutional deficiency identified in its judgment required the intervention of the legislator to bring the status of assessors into line with the Constitution, but there was no automatic correlation between that deficiency and the validity of each and every ruling given previously by assessors in individual cases. To that end the Constitutional Court ruled that the unconstitutional provision should be repealed eighteen months after the promulgation of its judgment. It is noteworthy that the constitutional and Convention deficiency regarding the status of assessors was remedied by the domestic authorities which decided to abolish the office of assessor altogether within the time-frame allotted by the Constitutional Court
. Having regard to the above, it may be noted that the authorities of the respondent State took the requisite remedial measures in order to address and remedy the deficiency underlying the present case."
- It seems to me that the principle of legal certainty has a significant role in these circumstances and that the analysis of Collins J in Wisniewski, in which he reviewed Urban in some detail, is correct. It may be correct to say, as Mr Gill and Miss Bhatt contend, that this court is exercising its own jurisdiction under the 2003 Act and not the supervisory jurisdiction of the ECtHR, but the import of the decision of the ECtHR cannot be ignored in this context.
- In all those circumstances and against that overall background, I am unable to accept, first of all, that there is any deficiency in the statement made under section 2(2) that the Appellant was convicted "by a court in the category 1 territory" and, accordingly, the principal ground of challenge to the EAW fails. Equally, the conviction of the Appellant by a tribunal presided over by an assessor was not such as to involve a "flagrant denial of justice" in his case and certainly not such as to warrant preventing his extradition. I should add finally in this regard that I do not consider that recourse to Articles 5 and/or 13 would affect that conclusion or afford the Appellant any basis for challenging his extradition on the grounds that the tribunal that convicted him was presided over by an "assessor".
The alternative argument
- The alternative argument advanced is that the EAW does not give any information about the circumstances triggering the activation of the sentence of imprisonment, a sentence which, as indicated in paragraph 4 above, was suspended for 5 years. It is contended that the EAW fails to provide this information, which is required by section 2, and which is information the Appellant needs to decide whether he has a defence to the extradition. It is said, in these circumstances, that the EAW is invalid.
- It is fair to say that the physical copy of the EAW available to the court and parties is difficult to read because of some superimposed highlighting. However, that is not the issue as such that gives rise to the argument I have foreshadowed: the argument is that information of the nature I have indicated should have been given and it was not.
- The EAW contained the information referred to in paragraphs 4 and 6 above.
- I have been invited to consider a number of previous cases in which issues concerning the particulars given in the EAW of the sentence(s) imposed in those cases, some of those cases involving sentences which were suspended. The cases to which I have been referred in particular are Bulkowski v Regional Court of Elblag, Poland  EWHC 381 (Admin), a decision of Treacy J, as he then was; Echimov v Court of Babadag, Romania  EWHC 864 (Admin), a decision of Davis J, as he then was; Kuchta v District Court of Czestochowa, Poland  EWHC 432 (Admin), a decision of a Divisional Court comprising Owen and Calvert-Smith JJ; Florescu v High Court of Law, Romania  EWHC 2781 (Admin), a decision of Ouseley J; Jeriorowski v Regional Court of Torun, Poland  EWHC 3620 (Admin), a decision of Burnett J; and Polkowski v District Court in Kalisz, Poland  EWHC 3649 (Admin), a decision of Nicol J.
- Although Mr Gill and Miss Bhatt sought to criticise the reasoning of Treacy J in Bulkowski, which was relied upon to some extent by Mr Isaacs, the reality is that neither that case nor any of the others in fact has yet considered an argument that the EAW should set out how and why a suspended sentence came to be activated. The nearest expression of a view on the issue came from Collins J in Kaminski v A Judicial Authority in Poland  EWHC 280 (Admin). That was a case where the EAW "[did] clearly state both that the sentence was originally suspended and that it has since been activated" . However, the argument was advanced that this was not sufficient. The argument and the view of Collins J appears from  and  of the judgment:
"8. [Counsel for the Appellant] contends that that is insufficient because it ought to indicate at the very least the circumstances which led to the activation because it is not known what were the conditions upon which the sentence was suspended, nor the circumstances in which the appellant is said to have failed to comply with those conditions. What the law requires, if one has the combination of Article 8 and section 2, is that there must be evidence of an enforceable judgment and of the penalty imposed if there is a final judgment. [Counsel for the Appellant] also referred to 8(1)(g), which refers to other consequences of the offence.
9. I am bound to say that it is not entirely clear to me precisely what that is intended to cover, and I am not aware of any particular authority which gives an answer to that question, but as it seems to me, particularly where, as here, it was clear that the appellant knew perfectly well what the conditions were and accepted that he had breached them (I already have referred to the reasons for that) the whole of the judgment was referred to, that is to say the fact of suspension and the fact of activation. As a general proposition, as it seems to me, that is all that is needed. I do not intend to lay down an absolute requirement here because, like all these cases, much may depend on the individual facts of the case."
- Without, therefore, seeking to lay down any definitive requirement, Collins J ventured the view that mention of the fact of suspension and the fact of activation is generally all that is needed. He was pressed with the argument on behalf of the judicial authority that it was "not in fact necessary, provided there been activation, even to mention that there had been originally a suspended sentence; it sufficed
that the sentence had to be served." He expressed some guarded reservations about this argument in the following way at :
"It is not necessary for me in the circumstances of this case to reach any final conclusion on that particular submission, and I am reluctant to do so. Suffice it to say that as at present advised, and I appreciate I have not heard full argument on the point, I have some doubt as to whether it suffices only to mention the activation, because what is required, certainly under the Framework, is an indication of the penalty imposed. As it seems to me, one would expect to include the whole penalty that was imposed by the court, that is to say the sentence originally suspended which has been subsequently activated. However, as I emphasise, I am not indicating that that is in my judgment a requirement, I am simply indicating my reservation as things stand at present in accepting the full extent of the submission made, but, as is apparent, it is not relevant for the purposes of this case because the warrant does make it clear that the sentence was originally suspended and has since been activated. In my view, that is sufficient to comply with the requirements. It is not necessary in circumstances such as these to specify precisely why the suspension was made
- Collins J was saying, in guarded terms, that ordinarily all that is required to meet the requirements of Article 8 and section 2 is a statement that the original sentence had been suspended and that it had been activated. On that approach, of course, the EAW in the present case meets the relevant requirements. It would follow that whether the decision of Treacy J in Bulkowski (namely, that the failure of the EAW in that case to specify that the original sentence was suspended did not affect the validity of the warrant) is correct or the doubts about that question raised by Collins J in Kaminski are persuasive is irrelevant to my decision. I prefer to express no view on that issue.
- Mr Gill and Miss Bhatt are, however, justified in saying that there is no authority that precludes the argument that the EAW in this case should have spelt out the circumstances in which the sentence of imprisonment came to be activated. They suggest that if the Appellant is being accused of failing to comply with the terms of the suspension, he needs to know the information relevant to that allegation (just as he would be told if it were an accusation warrant).
- Both parties in the present case accept that that the degree of particularisation required to satisfy the requirements of section 2 will depend on the facts of each case: see Sandi v The Craiova Court, Romania  EWHC 3079 (Admin) (Moses LJ and Hickinbottom J). For the Appellant it is argued that section 2 must be interpreted in a manner which is compatible with section 3 of the Human Rights Act 1998 and in a manner which makes it possible for the requested person to make "meaningful use of the bars to extradition set out in the Act". It is questioned how such a person can do this if he is not told of the accusation against him which led to the activation of the sentence and of how that activation came about. For the Respondent it is contended that what is required is that the totality of the information enables a requested person to know what he is going back to and whether any bars to extradition might arise. It is suggested that the Appellant is not able to say how particularisation of the circumstances of the activation might enable him to identify any bars to extradition.
- In their Supplemental Submissions made in writing after the hearing Mr Gill and Miss Bhatt assert that "the real reason why the Polish judicial authority wants the Appellant back is not the fact of the conviction itself in 2004 but that the Appellant is alleged to have done something else which has triggered what was a suspended sentence". They say that this has become apparent only from the information obtained by the Appellant's solicitor which has not been disclosed by the Respondent.
- No evidence supporting this assertion has been put forward. Even if it had, I am not sure that it would have made any difference. It is highly likely that the activation of a suspended (probationary) sentence will have arisen from something done or omitted to be done by the person sentenced. Here it is known that the Appellant left Poland in early April 2006 (having on 1-2 March that year spent some time in custody on remand according to the submission referred to in paragraph 38 above), that on 19 June 2006 the Polish court passed a further "limitation of liberty" sentence upon him which (following his mother's intervention) was varied to a fine (which was paid) and that the order for activation of the sentence took place in the following February. Whether his departure from Poland was the reason for the activation is, of course, unknown. But whatever the reason, the fact of the matter is that a judicial decision to activate the sentence was made in February 2007 and that decision is identified clearly in the EAW. There is no evidence before me to suggest that the Appellant (who, as I have indicated, has or has had Polish lawyers acting for him) could not have discovered the reasoning that led to the court making that decision if he had wished to do so: indeed the submission made by those lawyers in June 2012 indicates that they were aware of the provision of the Penal Code under which the decision was made. If that kind of investigation revealed some arguable bar to extradition, he would be in a position to raise it with the English court. Furthermore, it is presumably still open to him to investigate the position now or at any time before his return to Poland if it takes place so that, if he contests the facts upon which the decision was based, he will be in a position to do so upon his return. It is surely in that jurisdiction that he is best and most appropriately placed to contend that the order for activation was wrongly made if that is his contention. Any intervention by this court in this area at this stage would amount to unjustified intermeddling in the workings of the judicial system of another member State.
- In my judgment, for the reasons given by Collins J in Kaminski, ordinarily simply recording the fact of a suspended sentence and its subsequent activation, certainly where the date and location of the judicial decision for activation is given in the EAW, should be sufficient to comply with Article 8 and section 2. Whilst Mr Gill and Miss Bhatt seek to characterise this case as "unusual", I cannot for my part see what is so unusual about it so as for this purpose to mark it out from others. To my mind, the EAW gave sufficient particulars in relation to the sentence to meet the EFD and statutory requirements (and indeed, if it is to any extent different, the need for the Appellant to know what he returns to face) and was not invalid because of deficiencies in this respect.
- Accordingly, this ground of challenge to the EAW also fails.
- For the reasons I have given, the appeal against the District Judge's decision is dismissed.
- I am grateful to all Counsel for their assistance.
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