Krzyzowski v Circuit Court In Gliwice, Poland

The Gliwice Circuit Court in Poland (a category 1 territory for the purpose of the Extradition Act 2003) has requested the surrender of Mr Jan Krzyzowski (“the Appellant”) in respect of 13 burglaries allegedly committed between 1998 and 1999. The Appellant left Poland in October 1999 and has since lived in the United Kingdom. He relies on section 14 of the 2003 Act (“the Act”) which provides:-

“A person’s extradition to a category 1 territory is barred by reasons 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

a)

committed the extradition offence (where he is accused of its commission ….”

In relation to the very similarly worded provision of 8(3)(b) of the Fugitive Offenders Act 1967 Lord Diplock said this in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 782H – 783B;-

“”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.”

The main questions debated on this appeal are (1) whether the District Judge was right to have found that the appellant deliberately fled the country “in knowledge of [the] outstanding matters and to avoid the prosecution” as the judge put it (2) whether in the light of Lord Diplock’s observations in Kakis that is the end of the inquiry, and (3) if not whether it would now be unjust or oppressive to return him to Poland.

A European Arrest Warrant (“the warrant”) was issued by the Circuit Court in Gliwice (“the Respondent”) on 9^th January 2007. It was certified by the Serious Organised Crime Agency, (“the Agency”) a designated authority for the purposes of Part 1 of the Act, on 1^st May 2007.

The warrant accused the Appellant of 16 offences and sought his surrender for the purpose of a prosecution. Offences 1-12 inclusive were burglaries, said to have been carried out between June 1998 and March 1999. In respect of the 12^th offence the Appellant was said to have been caught red-handed. Offence 13 related to the use of a false driving licence, said to have taken place in 1997. Offence 14 was a burglary dating back to August 1999. Offence 15 was an allegation that in August 1999 the Appellant falsely reported a burglary to the police. Offence 16 was described as a fraud, carried out between September and 15^th October 1999.

The warrant provided that the maximum sentence for an offence of burglary, contrary to article 279 paragraph 1 of the Polish Penal Code, was 10 years’ imprisonment. No maximum sentence was indicated in respect of offences 13, 15 or 16.

In response to a letter from the Agency, Judge Kolodziejczyk of the Circuit Court in Gliwice said

The Agency certified the warrant in May 2007 and the Appellant was arrested at his home address in Hounslow on 13^th June 2007 by officers of the Extradition Squad of the Metropolitan Police. He was detained in custody and produced at the City of Westminster Magistrates’ Court the following day for an initial hearing pursuant to sections 7 and 8 of the 2003 Act.

At the hearing, no issue was raised on behalf of the Appellant as to his identity, service of the warrant, or production at court as soon as practicable. The extradition hearing was fixed for 28^th August 2007 and subsequently adjourned to 10^th September 2007, in order to afford the Respondent time to furnish the Court with further information on certain aspects of the warrant.

On 10^th September 2007, the extradition hearing commenced before District Judge Nicholas Evans. The Respondent’s representatives applied for a further adjournment as no information had yet been received as to the applicable maximum penalties for offences 13, 15 and 16. That application was granted but the District Judge indicated that he would proceed to determine the question of whether the 13 burglaries constituted extradition offences, and to hear the Appellant’s evidence in support of the passage of time submissions being advanced on his behalf. The District Judge then determined that offences 1-12 inclusive were extradition offences.

The Appellant then gave evidence to the following effect:-

Following the conclusion of the Appellant’s evidence, the hearing was adjourned part-heard on 25^th September.

On 25^th September, no information had been received by the Respondent’s representatives as to the maximum penalties in respect of offences 13, 15 and 16. The District Judge accordingly held that he was not satisfied these were extradition offences and ordered the Appellant’s discharge in respect of those offences only. In respect of offence 14, as this breached the same provision of the Polish Penal Code as the other 12 burglaries, a finding was made that this was an extradition offence.

After submissions the District Judge said:-

“This is a case where the person is wanted in Poland. He is accused of 16 offences. Three of which are not extradition offences. He raises a bar of passage of time and human rights in parallel in regard to his health and his son which also tie in with oppression.

As to the passage of time, the first fact in issue is ‘Did he flee the jurisdiction?’ I have the EAW, additional information from the Judicial Authority, his proof and the benefit of having heard him give live evidence.

As far as his evidence is concerned, I did not find him an impressive witness. I do not believe a number of things he told me. I am satisfied that he knew all about these proceedings. The JA says he signed a document setting out all of his rights and duties and the absolute duty on him to attend summonses and to inform the court of his change of address. He disputes this and says he was never given the document and never signed it and that colours my view. I am entirely sure that he did flee in full knowledge of outstanding matters and to avoid the prosecution. Therefore, he is not entitled to rely on a passage of time argument.

If I had decided that question differently, I would have found as follows.

The second question I would have had to answer is would extradition be unjust? Injustice has not been made out. The injustice points raised are speculative. He had been arrested and questioned and it is reasonable to suppose a record had been kept of what he said at the time so he will be reminded of the matters. It is not just a matter of him simply being in the wrong place at the wrong time when he was arrested walking past the bar – the fact that he was indicted means there must obviously be better evidence than that. The evidence exists and he knows what the nature of it is because he was questioned about it.

The third question I would have had to answer is would extradition be oppressive? His son is at school and doing his GCSEs. The defence say his son will have to leave school if he is extradited because he is the sole carer. I am not convinced that it is necessarily essential that his son will have to leave school. His sister lives in the UK and [in short] he can reside there.

The defence have referred me to authorities which I agree with the prosecution can be distinguished. Looking at the case as a whole is the correct approach set out in La Torre and I adopt it to find there is no oppression in the circumstances.

He has failed to satisfy me on the balance of probabilities.

Miss Powell has helpfully set out her submissions in her skeleton argument and I agree with all the points she made.

As to human rights, this has not specifically been argued but I guess arguing that he would be forced to abandon his son raises human rights. But again I find that extradition would be compatible with his human rights to face charges which I believe he knew all about and he is not entitled to escape it just because he fled the country. I find that extradition would be compatible with his Human Rights.

I order extradition accordingly.”

The District Judge decided that he was “entirely sure” that the Appellant had fled to avoid the prosecution and thus applied the criminal burden of proof to that question. Miss Powell submitted, for the requesting state, that there was no need for the judge to go that far since under section 14 of the Art it was for the Appellant to prove on the balance of probabilities that it would be unjust and oppressive to extradite him and that, therefore, it was for the Appellant to show to that standard that he had not fled Poland deliberately.

I do not accept that submission. If delay cannot be relied on for the purpose of section 14 when a defendant has deliberately fled the requesting state “save in the most exceptional circumstances”, it will operate as an almost automatic bar to reliance on delay. In those circumstances it seems to me that it is right that the requesting state should have to prove beyond reasonable doubt that the defendant did deliberately flee the country. I note that my Lord with whom Maurice Kay LJ agreed, has held in terms that if a question arises, under section 20(3) or 85(3) of the Act, whether a person deliberately absented himself from his trial, that is a matter which the requesting state has to prove to a criminal standard, see Mitoi v Romania [2006] EWHC 1977, paras 14-24. The reasoning in support of that conclusion is, with respect, impeccable and it would be most odd if the burden and standard of proof were any different in relation to the issue of deliberate flight before trial from that which it is in relation to deliberately absenting oneself from trial.

Miss Scott submitted that the judge was wrong to decide that he was sure that the Appellant had deliberately fled from Poland to avoid prosecution. That was a very difficult submission in a case in which the Judge actually heard the Appellant give evidence and disbelieved a number of the things that the Appellant had said including his assertion that he was never given any document to sign. Once a judge, who has seen a witness give evidence, disbelieves him on that matter, he is almost inevitably going to be sure that the witness deliberately fled to avoid prosecution. That should then be the end of the matter, see Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) para 23 per Sedley LJ and Ogonowski v District Court of Bialystok, Poland [2007] EWHC 2445 (Admin) para 10 per Richards LJ. Miss Scott’s assertion that the document should have been produced for the Court file (which would have presumably required a yet further adjournment) flies in the face of the aim of the Council Framework Decision establishing the European Arrest Warrant which in the words of Lord Bingham of Cornhill was:-

“to establish … a simpler, quicker, more effective procedure [than previous extradition procedures], founded on Member States’ confidence in the integrity of each other’s legal and judicial systems” Office of the King’s Prosecutor, Brussels v Armas 2005 UKHL 67 [2006] 2 A.C. 1, 7 para 2.

The judge considered that once he had found deliberate flight, the Appellant could not rely on the passage of time, no doubt on the basis of Kakis. He did, however, consider injustice and oppression in case he was wrong about that. Miss Scott submitted that he was indeed wrong and that Kakis should no longer be followed. She referred the court to Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin) in which this court held that deliberate flight was only one element to put in the balance in assessing whether it would be unjust to return a defendant to a requesting state. The court proceeded on the assumption that Goodyer had jumped his bail but, relying on dicta of Woolf LJ in Osman (No. 4) [1992] 1 All ER 579, 587 and of Laws LJ in La Torre v Italy [2007] EWHC 1370 at paras 36-37, concluded that it would be asymmetrical and, therefore, unfair to take account of a defendant’s conduct as a cause of delay but not the conduct of the requesting state when it was the cause of delay. In that case the state of Trinidad and Tobago admitted culpable delay in losing the file for 3 years and Sedley LJ said that the respective faults should be treated as merging:-

“…at the point where it is no longer reasonable for the requesting state not to have located the offender. From that point it becomes increasingly likely that the sense of security engendered by state inaction will render extradition oppressive.”

This conclusion is, with respect, contrary to the speech of Lord Diplock with whom the majority of the House of Lords agreed in the Kakis case and I am far from convinced that describing a decision of the House as asymmetrical (however true) can justify this court from departing it. It is, of course, the case that it is section 14 of the 2003 Act and not the very similar words of the Fugitive Offenders Act 1967 that are to be construed in this case, but Sedley LJ does not suggest that this makes any difference and it is difficult to see how it can. Nor does La Torre support Sedley LJ’s conclusion, since there was in that case no deliberate flight on the part of the defendant. Laws LJ was meeting an argument based on the next following paragraph of Lord Diplock’s speech in Kakis in which he said that responsibility for delay not brought about by the accused is not generally relevant since it is the effect of that delay rather than its cause which matters for determining whether it is unjust to return a defendant. In paragraph 37 Laws LJ said:-

“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 … The extraditee cannot take advantage of delay for which he is himself responsible…”

The last sentence of this quotation shows that Laws LJ intended to be faithful to Kakis (as indeed was Woolf LJ in Osman (No. 4) at 587f) and I would prefer to follow that lead rather than the lead offered in Goodyer.

This conclusion is also consistent with the bright line drawn in section 20(3) and 85(3) of the Act in which the inquiry is merely an inquiry as to whether a defendant deliberately absented himself from trial. Once a finding is made that he did, he must be surrendered. There is no obvious reason why the position should be any different if the question is whether the defendant deliberately fled to avoid continuance of a prosecution already begun.

It follows that the judge was right to hold that his ruling of deliberate flight concluded the matter unless it could be said that the circumstances of this case were “most exceptional” to use Lord Diplock’s words. The circumstances of the present case are not exceptional in any way and I would therefore uphold the judge’s decision.

That is sufficient for disposing of this appeal in Poland’s favour but it is necessary to notice one part of Miss Scott’s submissions in relation to injustice, had that been relevant. She submitted that the question was whether it was unjust to return the Appellant to face trial, not whether it would be unjust to try him. She then said, relying on Lisowski v Regional Court of Bialystok [2006] EWHC 3227 (Admin), that this court had to have regard to whatever safeguards might be in place in the domestic law of the requesting state to ensure that the defendant would not be subjected to an unjust trial there. She said that this must be particularly so if there is no information as to the nature of the evidence to be adduced at trial.

This submission seems to me to be fundamentally inconsistent with the concept of the European Arrest Warrant and the way in which the 2003 Act is expected to work in relation to category 1 territories. If evidence is to be required as to “the nature of the evidence to be adduced at trial”, we shall be back to the old days of previous extradition procedures and we shall not be expressing proper confidence in the integrity of each other’s legal and judicial systems enjoined on as by Lord Bingham of Cornhill in the Armas case.

In Lisowski it was decided that there was no question of deliberate flight and the defendant was facing a prosecution for fraud brought 11 years after the relevant events which occurred in 1995. He had come to England in 2000 and the first he heard of the accusation was when he was arrested in September 2006. The court was prepared to assume that the Polish courts had an appropriate abuse of process jurisdiction and would, in accordance with Article 6 of the Human Rights Convention, examine the question whether by reason of delay it would be unjust to allow the prosecution to proceed. Nevertheless Walker J said that before the court could rely on the proposition that the requesting state was best placed to examine the abuse of process issue, the requesting state:-

“… must produce some evidence that there was good reason to think that there would be a basis for rejecting an abuse of process application.”

Keene LJ agreed and added

“Section 14 of the 2003 Act imposes a duty upon this court to make its own decision as to whether it would be unjust or oppressive to extradite someone by reason of the passage of time. The fact that the requesting state is a signatory to the ECHR is a relevant factor but I do not myself see it as being determinative of this issue in the absence of other evidence about the legal processes in that state. After all, states do not always comply with their Convention obligations in every case. It is a matter of record that many signatory states have been found to have breached Article 6 of that convention from time to time.”

For my part I have reservations about the width of these comments. Of course it is for our courts to decide whether it is unjust or oppressive to surrender a defendant to another category 1 state. But if we are to require positive evidence that an abuse of process application will fail or if we start to assume that a fellow European country will from time to time (like the United Kingdom) be found to be in breach of Article 6 of the Convention, that is not giving full faith and credence to each others legal and judicial systems. It will also be a recipe for more and more paper evidence which will then be subject to controversy. The simple quick and effective procedure envisaged by Lord Bingham will then be impossible to achieve. It is worth reminding oneself of the preamble to the Council Framework Decision cited by Lord Bingham in Armas (para 4) and particularly paragraph 5 and 10

“(5)

Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.

…

(10)

The mechanism of the European arrest warrant is based on a high level of confidence between Members States.”

For the reasons given, however, questions of injustice or oppression do not arise on the facts of this case and I would dismiss this appeal.

For nearly 30 years, under three different statutory regimes, courts hearing extradition cases have consistently applied the observations of Lord Diplock in Kakis v Government of the Republic of Cyprus 1978 1 WLR 779 at 782H-783B:

““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.”

Lord Russell of Killowen and Lord Scarman agreed with Lord Diplock’s speech: 785F and 790B.

This passage, unlike that which followed at 783C-D, was part of the ratio decidendi of the case. At 782G-H, Lord Diplock stated that the passage of time to be considered was the time which passed between the date of the offence on 5^th April 1973 and date of the hearing in the Divisional Court on 15^th December 1977. At 783E, he expressly excluded the period 5thApril 1973 to July 1974, during which time the failure of the prosecuting authorities to begin criminal proceedings “was due to his own action into going into hiding in the mountains. So the starting point for the period of time that requires to be considered is July 1974”. But for the decision of this court in Goodyer & Gomes v Government of Trinidad and Tobago (2007) EWHC 2012 (Admin), I would have taken it to be settled law that, save in the most exceptional circumstances, delay in the commencement or conduct of any extradition proceedings brought about by the accused fleeing the country, concealing his whereabouts or evading arrest, could not be relied upon by him as a ground for holding it to be unjust or oppressive to return him – whatever other concurrent cause of delay there may have been. I do not understand this court to have decided otherwise in La Torre v The Republic of Italy 2007 EWHC 1370 (Amin), in paragraph 37 of Laws LJ’s judgment. He expressly observed that “the extraditee cannot take advantage of delay for which he is himself responsible”. In Goodyer and Gomes, this court, relying on observations of Lord Edmund-Davies at 785T, which undoubtedly did not form part of the ratio of Kakis, held that where there was “concurrent fault” on the part of the requesting state, it should not be left out of account. (The fault in Goodyer was that the prosecuting authorities had lost the file). The court thought that it would be wrong to leave it out of account “whether the concurrent fault of the requesting state is regarded as keeping the chain of causation in tact, albeit attenuated, or is regarded as an exceptional circumstance….”. I have no difficulty with the concept that the “chain of causation” may be attenuated in a case in which the extraditee flees justice and goes into hiding, but his whereabouts subsequently become known to the requesting state. Culpable delay thereafter on the part of the requesting state can be taken into account, as happened in Kakis; but where the whereabouts of the extraditee remain unknown to the requesting state, I do not see how delay on its part can properly be taken into account, save in an exceptional case. This court remains bound by the reasoning in Kakis, which compels that result.

The exception for the exceptional case will cater for the handful of cases in which serious injustice or oppression would otherwise result. In the ordinary case, such as this, a finding, under Section 14, that it would be unjust or oppressive to extradite an accused person by reason of the passage of time would not be open to a district judge or to this court. The district judge found that the appellant “did flee in full knowledge of outstanding matters and to avoid the prosecution”. It was not suggested, let alone found by the district judge, that the prosecuting authorities and/or the court in the requesting state knew of his whereabouts before the European Arrest Warrant was executed. All that is said is that the warrant could have been issued earlier, in which case, the whereabouts of the appellant might have been discovered earlier, and the delay in seeking his extradition, correspondingly reduced. I would hold that for either or both of two reasons, Section 14 cannot bar this appellant’s extradition: because the delay was due to reasons of his own choice or making; and because the mere elapse of time between the known disappearance of a suspect and the issue of the European Arrest Warrant, save in cases of truly exceptional delay, does not begin to demonstrate that the delay is culpable. If, as here, those are the sum of the relevant known facts, the court’s conclusion must be that the delay was caused by the fact that the suspect fled justice in the requesting state.

Two further questions were canvassed in the course of argument:

Neither question arises for decision. Accordingly, I express my view shortly. As to the first question, I would hold that the burden of proving that an extraditee fled justice in the requesting state lay on that state and was to the criminal standard. There is no precise analogy in domestic criminal law, but a close analogy is that of a person released on bail in criminal proceedings who fails to surrender without reasonable cause. He is guilty of an offence, which must be proved to the criminal standard: Section 6 Bail Act 1976. Proof to that standard may be the quid pro quo for the exclusion, save in a truly exceptional case, of the bar under Section 14. It would also be consistent with the requirement of proof, to the criminal standard, that a person had deliberately absented himself from his trial under Sections 20(3) and 85 (3): Mitoi v Government of Romania 2006 EWHC 1977 (Admin). On the facts of this case, the district judge was sure that the appellant had fled justice and so, in my view, applied the correct test. As to the second question, I would hold that it would be a mistake to transpose from extradition cases in which the requesting state is not subject to the Council Framework Decision of 13^th June 2007 (2002/584/JHA) the proposition that the requesting state must produce evidence that there is a basis for rejecting an abuse of process application. I respectfully disagree with the observations to that effect by Walker J in paragraph 18 of his judgment in Lisowski v Regional Court of Bialystok 2006 EWHC 3227 (Admin). Article 1.2 of the Framework Decision imposes on member states the obligation to execute a European Arrest Warrant on the basis of the principle of mutual recognition. Part 1 of the Extradition Act 2003, must be construed so as to give effect to that obligation: Office of the King’s Prosecutor, Brussels v Cando Armas 2006 2 AC 1 and Dabas v High Court of Justice Madrid 2007 2 AER 641. Civil law systems in part 1 states may or may not have procedures to guard against abuse of process in cases of delay. Some may deal with the problem simply by a statute of limitations. All are required to afford to an accused person a fair and public hearing within a reasonable time by virtue of Article 6 (1) ECHR. It would, in my view, significantly undermine the effectiveness of the EAW procedure if, in any case in which injustice was alleged under Section 14, the requesting state was required to put evidence of its procedures and law before the court.

For those reasons, and for the reasons given by Longmore LJ, I would dismiss this appeal.