R v Thomasz Mysiak

There are before the court applications relating to two convictions. One application is for an extension of time to appeal against a conviction for failure to surrender to bail, the second is an application for an extension of time and for leave to appeal against a conviction for conspiracy to sell or transfer prohibited ammunition with the appeal to follow if leave is granted. The applications have been referred to the court by the Registrar. They arise in unusual circumstances.

On 4 June 2018 a jury was sworn in to try the appellant, Thomasz Mysiak on two counts: one of conspiracy to sell or transfer a weapon and one of conspiracy to sell or transfer prohibited ammunition. On 12 June 2018 the appellant failed to attend court in breach of his bail conditions. He had fled the country. On 30 June 2018 he was convicted of both offences in his absence. He was eventually extradited to this country from the Netherlands in about May 2022.

Dealing with the two conspiracy offences, count 1 concerned a conspiracy to sell or transfer a prohibited weapon. As we have said, the appellant and his co-accused were convicted of that offence on 30 June 2018. The appellant was sentenced to eight years' imprisonment for that offence. There is no challenge to that conviction. An application for leave to appeal against sentence was refused by this Court. Following his extradition to this country the appellant has been in custody serving that sentence. There is no challenge to the conviction and there can be no further appeal against the sentence imposed for that offence.

The appellant was also convicted on 30 June 2018 of the offence of conspiracy to sell or transfer prohibited ammunition. He was sentenced to eight years' imprisonment to be served concurrently. There are different offences relating to ammunition. Some ammunition is prohibited and conspiracy to sell or transfer such ammunition carries heavy penalties. That is the offence of which the appellant was convicted. Other ammunition is not prohibited but an individual requires a certificate to possess it. The commission of that offence carries less severe penalties.

It is now accepted by the Crown Prosecution that the ammunition in question was not prohibited ammunition. It has been examined by an expert who confirmed that whilst a certificate is required to possess ammunition of this sort, the ammunition is not prohibited. The applicant wishes to appeal against the conviction but needs an extension of time of just over seven years, that is 2,560 days, in order to be able to do so.

The circumstances are unusual. Given the clear acceptance by the prosecution that the ammunition was not prohibited ammunition and that the offence was not committed it would in our judgment be wrong to let the conviction stand. Exceptionally, therefore, we grant an extension of time to appeal, we grant leave to appeal against conviction and we quash the conviction for count 2 conspiracy to sell or transfer prohibited ammunition. We point out that fortunately no injustice has been done to the appellant by this error. He was convicted quite properly of the offence on count 1, in relation to the weapon, and the time that he has spent in custody is attributable to that offence.

Following his extradition to the United Kingdom, the appellant was also convicted for failing to surrender to bail. A sentence of six weeks' imprisonment to be served consecutively was imposed on him. It has now emerged, and the prosecution again accepts, that the appellant should not have been charged with that offence. He was extradited from the Netherlands pursuant to a European Arrest Warrant issued by the Westminster Magistrates' Court. That warrant did not refer to him being extradited for a bail offence. As is clear from R v Seddon [2009] EWCA Crim 483, [2009] 1 WLR 2342, the relevant provisions of the Extradition Act 2003 do not permit a prosecution for an offence which is not included within the European Arrest Warrant.

The appellant has a right of appeal under section 13 of the Administration of Justice Act 1960. However, there is a 28-day time limit for appealing and the appellant requires an extension of time of just over three years, that is 1,124 days, to be able to appeal.

Again the circumstances are unusual. Given the clear acceptance by the prosecution that the appellant should not have been prosecuted for this offence, it would not be right to leave in place that conviction. We therefore grant an extension of time to appeal against conviction and we quash the conviction for failing to surrender to bail.

In summary, therefore, we grant the extensions of time sought, we grant leave and quash the conviction for conspiracy to sell or transfer prohibited ammunition and we quash the conviction for failing to surrender to bail.