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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Polakowski & Ors v Westminster Magistrates Court & Ors [2021] EWHC 53 (Admin) (20 January 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/53.html Cite as: [2021] WLR(D) 52, [2021] 1 WLR 2521, [2021] EWHC 53 (Admin), [2021] WLR 2521 |
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CO/5/2021, CO/6/21, CO/7/2021 |
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HOLROYDE
MR JUSTICE CHAMBERLAIN
____________________
| MAREK POLAKOWSKI, VIJAY SANKAR, CARLOS MENDES, MARIS ZELENKO AND THOMAS OVSIANIKOVAS |
Applicants |
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- and - |
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| (1) WESTMINSTER MAGISTRATES' COURT (2) WARSAW REGIONAL COURT, POLAND (3) OFFICE OF PUBLIC PROSECUTION, COLOGNE, GERMANY (4) JUDICIAL DISTRICT OF LISBOA NORTE, PORTUGAL (5) PROSECUTOR GENERAL'S OFFICE, LATVIA (6) DEPUTY PROSECTOR GENERAL LITHUANIA (7) GOVERNOR OF HMP WANDSWORTH (IN POLAKOWSKI AND OVSIANIKOVAS) |
Respondents |
____________________
Josse
QC, Ben Keith, David Williams and John Crawford for Polakowski and Mendes (instructed by McMillan Williams), Sankar (instructed by Rahman Ravelli), Zelenko (instructed by Tuckers) and Ovsianikovas (instructed by Birds)
Helen Malcolm QC and Alexander dos Santos (instructed by the Crown Prosecution Service) for the judicial authorities
Hearing dates: 15 January 2021
____________________
Crown Copyright ©
Dame Victoria Sharp, P:
Introduction
The applicants
(a) Marek Polakowski is sought pursuant to a conviction EAW issued on 4 October 2019 by the Warsaw Regional Court in Poland and certified by the National Crime Agency ("NCA") on 13 February 2020. He was arrested on 10 July 2020 and brought before Westminster Magistrates' Court, where he was remanded in custody. A full
extradition
hearing has yet to take place. The latest hearing at Westminster Magistrates' Court took place on 14 January 2021, at which Mr Polakowski was remanded in custody for a further 28 days. He is currently detained at HMP Wandsworth.
(b) Vijay Sankar is sought pursuant to an accusation EAW issued on 22 April 2020 by the Office of Public Prosecution in Cologne, Germany, and certified by the NCA on 2 June 2020. He was arrested on 30 June 2020 and appeared at Westminster Magistrates' Court on the same day. He was granted conditional bail. He remains on bail. A full
extradition
hearing is listed on 25 January 2021.
(c) Carlos Mendes is sought pursuant to an accusation EAW issued on 28 February 2019 by the Judicial District of Lisboa Norte in Portugal and certified by the NCA on 6 January 2020. He was arrested on the same day. His
extradition
was ordered following a hearing at Westminster Magistrates' Court by District Judge Snow. He has appealed. Permission to appeal was initially refused but was then granted following a hearing on 21 October 2020. The appeal is listed for hearing on 16 February 2021. He has been on bail throughout.
(d) Maris Zelenko is sought pursuant an accusation EAW issued on 4 January 2018 by the Prosecutor General's Office in Latvia and certified by the NCA on 9 January 2018. He was arrested on 2 October 2018. His
extradition
was ordered by Deputy Senior District Judge Ikram on 17 January 2019. His appeal was dismissed by the Divisional Court on 13 July 2020, but he has applied to re-open that appeal. He has been on bail throughout.
(e) Tomas Ovsianikovas is sought pursuant to an accusation EAW issued on 16 October 2014 by the Deputy Prosecutor General in Lithuania and certified by the NCA on 24 October 2014. He was arrested on 20 May 2015 whilst in custody in relation to an offence of rape committed in this jurisdiction, for which he was convicted and sentenced. He remained in custody on the basis of the EAW after serving his custodial sentence. He is currently detained at HMP Wandsworth.
extradition
order has been made (Polakowski, Sankar and Ovsianikovas); second, those where
extradition
has been ordered and an appeal is pending (Mendes); and third, those where the
extradition
appeal is concluded but there is an application to re-open it (Zelenko). As will become clear, the argument advanced and the answer to it applies equally to each of these categories of case.
Procedure: the appropriateness of applications for habeas corpus
Josse
QC, for the applicants, submits that habeas corpus is the appropriate remedy in the exceptional circumstances of this case, but in the alternative invites us to exercise the power under CPR r. 87.5(d) to direct that the applications continue as applications for permission to apply for judicial review.
extradition
cases. At [45]-[46] of his judgment, Singh LJ noted that it was unclear whether an application for habeas corpus could be brought on behalf of an applicant who was not detained but subject to conditional bail. He did not consider it necessary to resolve that point because:
"47 there is a more fundamental difficulty in the way of the applicant's use of habeas corpus in a case like this. Even if the applicant were in detention, it is that a complete answer to the writ of habeas corpus would be provided by the fact that there is lawful authority for his detention. That authority is provided by the order of a court. The gaoler (for example a prison governor) would be able to cite the order of the court as providing the lawful authority for the detention.
48. What the applicant in truth needs to attack, and indeed does attack, is the order of the court by which the district judge refused his application for discharge. The applicant submits that the decision of the district judge is flawed on various public law grounds ; and irrationality. Those are grounds of judicial review.
49. The appropriate procedure for setting aside the order of the court which on its face authorises the applicant's detention is an application for judicial review to have that order quashed."
extradition
cases. He cited and endorsed Gronostajski v Government of Poland [2007] EWHC 3314 (Admin) at [8]-[9]. There, Richards LJ said that, where detention was authorised by the order of a district judge which on its face was valid, the proper target of challenge was the order and the proper procedure judicial review. This, Singh LJ held, was also consistent with the decisions of the Court of Appeal in R v Secretary State for the Home Department ex p. Cheblak [1991] 1 WLR 890 and R v Secretary of State for the Home Department ex p. Muboyayi [1992] QB 244 and the judgment of the Divisional Court in R v Oldham Justices ex p. Cawley [1997] QB 1. Those cases were to be followed.
Josse
is correct, it follows that the district judge erred in law. On the reasoning in Jane, with which we agree, the proper means of challenging such an order is a claim for judicial review. Since the application is now before us, we shall exercise our power under CPR r. 87.5(d) to direct that the application continue as an application for permission to apply for judicial review.
The applicants' argument
Josse
QC accepts that, in each of these cases, the EAW, taken with the district judge's order, provided a proper legal basis for the detention of the applicant or the grant of conditional bail until 11p.m. on 31 December 2020. He contends, however, that from that point onwards, the legal basis for detention or conditional bail fell away. His argument proceeds in these stages (re-ordered for ease of logical exposition):
(a) The legal basis for the EAW system is Framework Decision 2002/584 JHA ("the Framework Decision"). That provides for the issue of EAWs by a judicial authority in the requesting Member State to the sending Member State and for the surrender of persons by the latter to the former.
(b) Until 11 p.m. on 31 January 2020, the Framework Decision itself which applied to all Member States including the UK as part of the corpus of EU law provided a proper legal basis for the issue of EAWs and for the surrender of individuals pursuant to them.
(c) From 11 p.m. on 31 January 2020, however, the UK ceased to be an EU Member State; and EU law was no longer an independent source of obligations on the UK. The UK's rights and obligations vis-ΰ-vis the EU were exhaustively defined by the Withdrawal Agreement, which entered into force at that time.
(d) Article 62 of the Withdrawal Agreement provided that the Framework Decision was to continue to apply in respect of EAWs where the requested person was arrested before the end of the "transition period" (defined in Article 126 as the period from 11 p.m. on 31 January 2020 to 11 p.m. on 31 December 2020).
(e) But in order for the Framework Decision to be capable of sensibly applying, it was necessary for there to be an express agreement that the UK would be treated as if it were a Member State for the purposes of the Framework Decision. There is such an agreement in Article 127, but that applies only during the transition period. Its para. (1) provides that, subject to immaterial exceptions, EU law is to be applicable to and in the UK, but only "during the transition period". Para. (3) provides that the law made applicable by para. (1) "shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States, and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union". But this too applies only "[d]uring the transition period". Para. (6) provides: "Unless otherwise provided in this agreement, during the transition period, any reference to Member States in the Union law applicable pursuant to paragraph 1, including as implemented and applied by Member States, shall be understood as including the United Kingdom" (emphasis added).
(f) Article 7 of the Withdrawal Agreement, provides, subject to exceptions, that "[f]or the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities". But Article 128(1) shows that this applies only during the transition period.
(g) This means that, after the end of the transition period, there is no agreement that the term "Member State" includes the UK. Since the Framework Decision in its Article 1(1) defines an EAW as "a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person" (emphasis added), this has the consequence that the Framework Decision does not provide a proper legal basis for the surrender of the applicants by the UK to any EU Member State.
(h) The 2003 Act, insofar as it implements the Framework Decision, must be read conformably with it: see the decision of the Grand Chamber of the European Court of Justice ("ECJ") in Case C-105/03 Pupino [2006] QB 83 and other cases to similar effect. Accordingly, since the Framework Decision supplies no basis for the surrender of the applicants, neither can the 2003 Act.
(i) Since, from 1 January 2021, the UK is no longer a Member State and no longer to be treated as if it were, a number of key protective features of the Framework Decision regime have ceased to apply. In particular:
(i) specialty protection (provided for by Article 27 of the Framework Decision), the importance of which is vouched by s. 17 of the 2003 Act, which requires discharge where there are no specialty arrangements with the requesting territory;
(ii) assurance that time spent in custody or remand will count toward sentence (provided for by Article 26 of the Framework Decision), without which it is said that there may be a breach of Article 7 ECHR;
(iii) protection from onwardextradition
(provided for by Article 28 of the Framework Decision); and
(iv) provisions governing surrender and transit (provided for by Article 25 of the Framework Decision).
(j) The EAW regime can no longer operate properly as intended, because the UK's departure from the EU has removed the jurisdiction of the Court of Justice of the EU ("CJEU"), which is essential to ensure uniform application of the Framework Decision.
(k) Finally, since 1 January 2021, the UK no longer has access to the Schengen information System II ("SIS") for the purpose of surrender and removal arrangements. This is a further matter which renders the operation of the EAW system impossible.
Analysis
extradition
the 2003 Act and the domestic law which modifies it, not the Framework Decision or any other piece of EU law, nor any unincorporated international agreement.
Extradition
Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333) and the
Extradition
Act 2003 (Designation of Part 2 Territories) Order 2003 (SI 2003/3334). It is not necessary to consider the detail of these amendments because reg. 57 provides that they do not apply in a case where, before 11 p.m. on 31 December 2020, "a person has been arrested under a Part 1 warrant". As the Explanatory Note makes clear, this provision was inserted to show "how cases 'live' on exit day should be dealt with". (The use of "exit day" here is capable of misleading. The amendments made by s. 1 of the 2020 Act continued the effect of EU law in the UK, subject to modifications, after exit day until 11 p.m. on 31 December 2020.)
"The amendments made by section 12 do not apply for the purpose of deciding whether the offence specified in a Part 1 warrant is anextradition
offence if the person in respect of whom the warrant is issued is arrested under the warrant or under section 5 of the
Extradition
Act 2003 on the basis of a belief related to the warrant before [11 p.m. on 31 December 2020]."
extradition
cases coming before the courts after 11 p.m. on 31 December 2020 where the arrest took place before that time. The EUFRA in particular envisages that in such cases a court will have to decide whether the offence specified in the EAW is an
extradition
offence. That is flatly inconsistent with the applicants' submission that they are entitled to be discharged because the UK courts now lack jurisdiction to deal with EAW cases.
"For the purposes of this Agreement, all references to Member States and competent authorities of Member States in provisions of Union law made applicable by this Agreement shall be understood as including the United Kingdom and its competent authorities, except as regards:
(a) the nomination, appointment or election of members of the institutions, bodies, offices and agencies of the Union, as well as the participation in the decision-making and the attendance in the meetings of the institutions;
(b) the participation in the decision-making and governance of the bodies, offices and agencies of the Union;
(c) the attendance in the meetings of the committees referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council (4), of Commission expert groups or of other similar entities, or in the meetings of expert groups or similar entities of bodies, offices and agencies of the Union, unless otherwise provided in this Agreement."
Josse
relied on Article 128(1), which provides that "[n]otwithstanding Article 127, during the transition period Article 7 shall apply". He submitted that the effect of this was to confine the operation of Article 7 to the transition period. But Article 128(1) does not say that Article 7 applies only during the transition period. Its purpose is to make clear that, during the transition period, Article 7 applies alongside Article 127. Article 128(1) appears in Part Four of the Withdrawal Agreement, which deals with the transition period. It does not purport to cut down the scope of the other parts of the Withdrawal Agreement, which apply without limit of time.
Josse
accepted that, if his construction of Article 7 were accepted, the consequence would be that none of the instruments given effect by Article 62 would apply at all after the end of the transition period. The matters covered by those instruments include (among others) mutual legal assistance, freezing orders and confiscation orders. But if that were correct, there would be no need for Article 62 at all, because Article 127(1) gives effect to the whole of EU law (subject to immaterial exceptions) during the transition period. The only plausible interpretation of Article 62 is that it was intended to impose on the UK and the Member States of the EU mutual and indefinite obligations to apply existing EU instruments to cases where matters were "live" as at 11 p.m. on 31 December 2020. In the case of the EAW system, what makes a case "live" is that the arrest has taken place prior to that time. But the obligation to apply the relevant instrument in this case, the Framework Decision applies indefinitely to such cases.
extradition
(Article 28) and surrender and transit (Article 25) all continue to apply. These provisions continue to impose obligations on requesting states. These obligations arise under international law by virtue of the Withdrawal Agreement, which is also part of the EU legal order law in EU Member States.
Postscript
"Parts Two and Three, with the exception of Article 19, Article 34(1), Article 44, and Article 96(1), as well as Title I of Part Six and Articles 169 to 181, shall apply as from the end of the transition period."
Josse
accepted in the light of Article 185 that he could no longer properly argue that Article 127(6) placed a temporal limit on the operation of Article 62. He therefore abandoned the first of his two principal points. He nonetheless maintained his second point, that Article 7 applied only for the purposes of the Withdrawal Agreement, whereas the term Member State as used in the instruments given effect by Article 62 had to be read as it would be understood in EU law and for those purposes, the UK was no longer a Member State. We regret to say that this point also is so hopeless that it is not properly arguable.
Josse's
construction of Article 7 would have the effect of rendering nugatory the plain, intended effect of Article 62, which was in cases "live" as at 11 p.m. on 31 December 2020 to give effect to the EU instruments identified in that Article. Even on its own terms, Mr
Josse's argument makes no sense. In the remaining EU Member States, from the moment of the UK's withdrawal from the EU, the only "purposes" for which the Framework Decision had effect in situations involving the UK are those specified in the Withdrawal Agreement. So, the words "[f]or the purposes of this agreement" in Article 7 covers all the purposes for which the Framework Decision could possibly apply in situations involving the UK. From the perspective of the remaining Member States, the Withdrawal Agreement as an international treaty to which the EU is party is part of, and not distinct from, the EU legal order.
Conclusion